State ex rel. Green v. Collison

Rodney, J. (dissenting):

I find myself unable to agree with the majority of the court and shall, but briefly, give my reasons. Dissenting opinions do not express the law of the case then under consideration and, therefore, have but little weight. I do not flatter myself that my views, where they differ from the opinion of the court, have particular value, but a proper regard for the importance of the question requires that I briefly give the reasons for my dissent.

On April 2, 1917, the Delaware Workmen’s Compensation Law was approved and became effective. 29 Del. Laws, c. 233. It provided that the Governor should appoint three members to constitute the board. These members were originally appointed for terms of two, four and six years respectively, and the act further provided that as the terms of office expire by death, resignation, removal from the state or otherwise, that appointments should be made for terms of six years each. The act then provided “Each person appointed under the provisions of this section shall hold office until his successor is appointed and qualified. The Governor may remove any member of said Board with or without cause.” Section 116, as amended, Rev. Code 1935, § 6093.

It is in this last sentence “The Governor may remove any member of said Board with or without cause” that all the difficulties of the case are to be found.

*303The relator contends that the term is a fixed term of six years and that, under the Constitution, this term may not be abridged except in the manner provided by the Constitution.

The defendants contend that there is no fixed term but since the Governor can under the act remove with or without cause that the term is at the will of the Governor, with a maximum of six years in case the Governor has not exercised his right of removal.

In determining between the views of the parties there are two primary and commanding rules of statutory construction that must be considered.

(1) Where an act is fairly susceptible of two constructions, one of which will uphold the validity of the act while the other will render it unconstitutional the one which will sustain the constitutionality of the law must be adopted.

(2) It is a cardinal rule that significance and effect shall, if possible, be accorded to every section, clause, word or part of the act.

No citation of authorities in support of the foregoing rules can possibly be needed, but it is merely necessary to apply the rules.

The relator contends that the fixed term of six years must prevail, but if that be true then the provision that “the Governor may remove with or without cause” must be entirely stricken from the act or from any consideration. This I think violates both rules of construction as above set out.

The defendants contend that the removal by the Governor is an express evidence of the legislative intent and that the term of six years was an expression of a maximum term in case the will of the Governor as to removal was not exercised. The adoption of this construction gives full force and effect to both rules of construction. All words are given *304effect and the constitutionality as to this point is maintained.

The relator contends, however, that the Legislature is without power to give to the Governor the right to remove “with or without cause,” and this question must now be briefly considered.

In the system of government such as we enjoy in Delaware all rights inhere in the people. Under the Federal Constitution the national government possesses only the powers and can exercise only the rights which are expressly or implicitly given in the Constitution. All rights not given by the Federal Constitution are reserved to the states. This principle is only partially true in our state government.

Our state government consists of three co-ordinate branches, the executive, the judicial and the legislative. The executive and judicial branches draw their power from the Constitution and as to them the Constitution, like the Federal Constitution, is a grant. of power. The legislative branch of the state government, however, represents the sovereign power of the people and as to it the Constitution is not a grant of power but merely a limitation.

The legislative branch is the organized body of the people in general, and has all the powers inherent in the people except in so far as it is limited by the Constitution: it represents the great residuum of power which is only limited by the express terms of the Constitution by plain implication.

The right of the Legislature to create the Workmen’s Compensation Board is, of course, admitted. In State ex rel. McVey v. Burris, 4 Penn. 3, 49 A. 930, 931, it is said: “It is well settled that offices created by the legislature are entirely within legislative control. * * * Unless there be some constitutional limitation, such offices may be modified, abridged, or abolished as the legislature may see fit.”

*305There is no express provision of the Constitution which would be a limitation on the right of the Legislature to create the Workmen’s Compensation Board and to provide for the appointment and removal of its members, with or without cause. I am not now concerned with the propriety or advisability of the action, but merely with its validity on the part of the Legislature.

As there is no express limitation in the Constitution on the power of the Legislature in the matter under discussion, so I find no implied limitation. It is certain that the Legislature has, a number of times, created offices and given the appointing power to a specified person, leaving to that person full power to regulate or remove the officer. Pointing to only one instance it appears that at the session of the Legislature next following the creation of the Workmen’s Compensation Board (viz. 1919) the Legislature authorized the Attorney-General to appoint five important officers, viz.: A chief deputy and four other deputies. As to one it was expressly provided that he should hold office “at the pleasure of the Attorney-General.” As to the others it was provided that “the term of office and the duties by them to be performed shall be determined and fixed from time to time by general or special appointments, regulations, and orders made by the Attorney-General.” 30 Del. Laws, c. 48.

Here was a plain case of right of removal and it is a curious coincidence that, under the act just cited, among the first appointments as deputies by the Attorney-General with plenary power to regulate the term of office and to remove, one was the present Attorney-General who now is the relator, and two others have direct connection with the solution of the present question.

The very act now under discussion, Workmen’s Compensation Law, when it was originally presented in the Legislature provided that the board should be appointed by the court and that the court had the power to remove the mem*306bers of the board “with or without cause.” An amendment changed the appointing power from the court to the Governor. If the act had been adopted as originally introduced, I know of no limitation on the Legislature which would have rendered the law unconstitutional. For the same reason I see no prohibition merely because the Legislature changed the appointing power.

If it be assumed then that the Legislature could validly grant to an Attorney-General the right to fill offices and to remove the incumbents “with or without cause,” and if the Legislature could validly grant to a court the right to appoint members of the Industrial Accident Board and the right to remove “with or without cause” (as was the present act as originally introduced), then I see no new and sudden unconstitutionality when the appointing power is changed to the Governor. The Governor represents the highest office in the gift of the people of a state. Is it to be assumed by some mere inference or implication that he is to be reduced below the level of any other appointive power in the state, and that the Legislature is without authority to grant to the Governor some special grant of power of removal which it can grant to any other appointive power in the state? To me this is so contrary to reason as only to be supported by an express constitutional provision or inescapable inference.

To me it seems that the powers of the Governor to make appointments and the provision as to his removal of officers as expressly set out in the Constitution, represent the irreducible minimum from which the Legislature can in no way detract. The powers as to the removal of officers vested by the Constitution in the Governor are grants of power to the Governor without which the Governor would have no power to remove at all. Without these provisions the Legislature alone would have plenary power by the Constitution to authorize any removal at any time it saw *307fit. The provisions for grant of power in the Governor are limitations on the legislative powers to that extent, and to that extent only, for the limitation on the Legislature is exactly measured by the power taken from the representatives of the people (the Legislature) and vested in the Governor. The limitation is exactly equalled by the grant of power. What is not granted is reserved in the people acting through the Legislature. The powers vested in the Governor are not expressive of future and other powers which the Legislature might grant as to new statutory offices created by the Legislature. As to these, the Legislature has exclusive control.

It has been suggested by the majority opinion that if a vacancy on the Industrial Accident Board should happen during a recess of the Senate that, in such case, the Governor would appoint a successor pursuant to the provisions of Article 3, § 9, by granting a commission which would expire at the next session of the Senate. Inference is then drawn that the Governor could not remove such appointee except in the manner provided by the Constitution, and it is concluded that, during the recess of the Senate, the Governor can make no appointments except by granting commissions to expire at the next session of the Senate. Such argument, of course, has force in ordinary offices of fixed terms and in the present case would be material if the members of the Industrial Accident Board held fixed terms.

The argument loses its force when applied to an office at will or at pleasure, and this may best be shown by the analogous constitutional provisions concerning the secretary- of state. By Article 3, § 10, the Governor appoints, with the consent of the Senate, a secretary of state “who shall hold office during the pleasure of the Governor.” If a vacancy occurred in the office of secretary of state immediately upon the adjournment of the Legislature could it reasonably be argued that the succeeding appointee would *308then have a fixed right to the office for the two years next ensuing and until the next session of the Senate? If this was true then the constitutional term of the secretary of state “at the pleasure of the Governor” would be an idle phrase and mean nothing.

In my opinion the entire provision concerning commissions to fill vacancies expiring at the next session of the Senate has applications to vacancies in offices for fixed terms and has no application to either constitutional or statutory offices where the term is one at pleasure or at will.

I am of the opinion that the plain and explicit will of the Legislature as expressed in the act under discussion, by the language “The Governor may remove any member of said Board with or without cause” Rev. Code 1935, § 6093, must and should be given consideration; that under said act the Governor had the right to remove those officers which he did remove. I am further of the opinion that the statute was a valid exercise of legislative power.

Any belief that I might, personally, hold as to the advisability or inadvisability of a statute giving to a Governor the right to remove without cause has nothing whatever to do with the present matter, and is entirely separate and distinct from its legal aspect.