Dorothy Elizabeth Barton duPont sued her husband, Alfred Victor duPont, for separate maintenance. From an order of the Court of Chancery denying defendant's motion to dismiss the complaint for lack of jurisdiction, defendant appealed. The Supreme Court, Wolcott, J., held that the statute providing that the Chancellor shall not hear or determine any cause, where a sufficient remedy exists at law, does not prohibit him from exercising the Chancery Court's jurisdiction to award a decree for separate maintenance of a deserted wife, as the Family Court Act does not create a sufficient remedy within the constitutional definition of the chancery court's jurisdiction.
Tunnell, J., dissented.
See also, Del.Super., 83 A.2d 105.
[32 Del.Ch. 415] Appeal from an order of the Chancellor denying the appellant's motion to dismiss the complaint for lack of jurisdiction [32 Del.Ch. 416] in the Court of Chancery to hear and determine a wife's action for separate maintenance. Heretofore, the appellee moved to dismiss the appeal on the ground that it was prematurely taken. The motion to dismiss the appeal was denied. DuPont v. DuPont, Del., 82 A.2d 376.
Arthur G. Logan, Stephen E. Hamilton, Jr., and Samuel R. Russell, of Logan, Marvel & Boggs, of Wilmington, for appellant.
James R. Morford and Morton E. Evans, of Morford, Bennethum, Marvel & Cooch, of Wilmington, for appellee.
WOLCOTT and TUNNELL, Justices, and TERRY, Judge, sitting.
In so far as it is necessary to determine the question before us, the facts are that the appellant and appellee were married and thereafter the appellant deserted the appellee, leaving her in destitute circumstances. Thereupon, the deserted wife filed an action in the Court of Chancery praying that a decree be entered directing her husband to pay her a periodic sum for her separate maintenance. The husband moved to dismiss the action, asserting that the Court of Chancery was without jurisdiction to hear the cause. The motion thus made was denied by the Chancellor, from which denial this appeal is taken.
After the argument on the appeal the Court raised on its own motion a basic constitutional question. We have since had the benefit of the views of counsel and will first dispose of the question thus raised.
Briefly stated, the question posed is this: Is the grant to the Court of Chancery by Section 10 of Article IV of the [32 Del.Ch. 417] Constitution of 1897 of ‘ all the jurisdiction and powers vested by the laws of this state in the Court of Chancery’ subject to unrestricted legislative curtailment by reason of the inclusion in Article IV of Sections 17 and 18?The point is important in this
cause since 45 Laws of Del. Ch. 241, purports to confer exclusive jurisdiction over non-support actions between husband and wife on the Family Court of New Castle County.
Section 17 provides in part that ‘ The General Assembly, notwithstanding anything contained in this Article, shall have power to repeal or alter any Act of the General Assembly giving jurisdiction to * * * the Court of Chancery * * *. [And that it] shall also have power to confer upon * * * the Court of Chancery jurisdiction and powers in addition to those hereinbefore mentioned. * * *’
Section 18 provides in part that ‘ Until the General Assembly shall otherwise provide, the Chancellor and the Vice-Chancellor or Vice-Chancellors, respectively, shall exercise all the powers which any law of this State vests in the Chancellor, besides the general powers of the Court of Chancery, * * *.’
It is suggested that the question raised does not find its answer in Glanding v. Industrial Trust Co., 28 Del. Ch. 499, 45 A.2d 553, for the reason that that case did not hold that the Legislature was without authority by express legislative enactment to divest the Court of Chancery of jurisdiction unless at the same time it established a sufficient remedy in some other tribunal.
The majority in the Glanding case held that no such divestment would result unless the Legislature expressly declared the new remedy to be exclusive. However, it is technically correct to say that in the Glanding case the Court did not have before it the question of whether the Legislature could expressly deprive Chancery of jurisdiction without at [32 Del.Ch. 418] the same time creating a sufficient remedy in some other tribunal because the other remedy was admittedly sufficient in that case. The underlying implications in both the majority and minority opinions, however, are to the contrary and were recognized as such in the opinion in this cause below Del. Ch., 79 A.2d 680 and in Delaware Trust Co. v. McCune, Del. Ch., 80 A.2d 507.Nevertheless, in view of the technical fact that the precise question was not before the Court in the Glanding case, we have concluded it is advisable to reconsider it.
It may be observed that no one denies that the general equity jurisdiction of the Court of Chancery, established originally by Sections 21 and 25 of a Colonial Act of 1726-1736, is defined as all the general equity jurisdiction of the High Court of Chancery of Great Britain as it existed prior to the separation of the colonies, subject to the proviso, originally contained in Section 25 of the Colonial Act and now found as Section 4367, R.C.1935, to the effect that the Chancellor shall not hear and determine any cause where a sufficient remedy exists at law. This is a holding of the Glanding case which we consider binding upon us. We have before us, therefore, in this phase of the appeal solely the question of the power of the Legislature to interfere with that jurisdiction by reason of the authority contained in Sections 17 and 18 of Article IV of the Constitution.
Initially we will dispose of Section 18. It is obvious that this section applies only to the powers of the office of Chancellor in contradistinction to the general equity powers of the Court of Chancery, since it specifically refers to powers vested ‘ in the Chancellor’ . There are many powers conferred by statute upon the Chancellor directly which are distinct from the general equity powers to be exercised by the Chancellor as a Judge of the Court of Chancery. [32 Del.Ch. 419]We think, therefore, that Section
18 refers only to powers and authority incident to the office of Chanceller. Section 18, therefore, has no pertinency to the question before us.
The contention that Section 17 authorizes the Legislature to reduce the jurisdiction of the Court of Chancery by the passage of a law expressly taking such jurisdiction from it requires more detailed treatment, and a consideration of the relation between Sections 10 and 17.
We think it fundamental in our theory of constitutional government that the basic purpose of a written constitution has a two-fold aspect, first, the securing to the people of certain unchangeable rights and remedies, and, second, the curtailment of unrestricted governmental activity within certain defined fields. Bearing this in mind, the presumption easily follows that when a written constitution provides for the separation of the powers of government between three major branches, it is intended that within the scope of their constitutionally conferred fields of activity the three separate departments of government are to be independent, subject, of course, to any limitations upon this presumption found in clear and express provisions of the constitution, itself. Obviously, no presumption springing from theory may be permitted to override the clear meaning of the written document from which it is drawn.
It is to be noted that Section 10 confers upon the Court of Chancery all the jurisdiction ‘ vested by the laws of this State’ in it, while Section 17 authorizes the Legislature to alter or repeal ‘ any Act of the General Assembly giving [32 Del.Ch. 420] jurisdiction’ to the Court of Chancery. The decided difference in connotation between the verbs ‘ vest’ and ‘ give’ become significant in view of the fundamental purpose of written constitutions. This significance is clarified by the history of each section.
The historical development of Section 10 goes back to the Colonial Act of 1726-1736 by which the Judges of the then Courts of Common Pleas in each of the counties were authorized to hold Courts of Chancery under the same system of equity as was administered in the High Court of Chancery of Great Britain. This act, of course, could have been amended or repealed at will by the Colonial General Assembly. This situation continued until the Constitution of 1776 by Article XIII of which it was provided that the Justices of the Courts of Common Pleas should have the power to hold Courts of Chancery ‘ as heretofore, unless the legislature shall otherwise direct’ . Thus, the Constitution of 1776 did not change the nature of the Courts of Chancery but continued the absolute power of the Legislature over them as it had existed throughout the colonial period.
By the Constitution of 1792, however, the status of the Courts of Chancery was changed. By Section 14 of Article VI of that Constitution, it was provided that ‘ The equity jurisdiction heretofore exercised by the judges of the court of common pleas shall be separated from the common-law jurisdiction, and vested in a chancellor, who shall hold courts of chancery in the several counties of this State. * * *’
In 1792, therefore, for the first time, a separate Court of Chancery was vested with constitutionally defined jurisdiction which could not be disturbed by the Legislature. This is made particularly clear by the absence in the Constitution of 1792 of a counterpart to Section 17 of the present Constitution.
The next step in the historical development of Section 10 occurred in the adoption of the Constitution of 1831 in [32 Del.Ch. 421] Section 5 of Article VI of which the language of Section 10 first appears, viz., ‘ The chancellor shall hold the court of chancery. This court shall have all the jurisdiction and powers vested by the laws of this State in the Court of Chancery’ .
We think the laws vesting jurisdiction referred to in Section 5 of Article VI of the Constitution of 1831 refer obviously and directly to the statutory enactments in effect at the time of the adoption of the Constitution of 1792 which, for the first time, ‘ vested’
equity jurisdiction in a court of this state.
In Section 12 of Article VI of the Constitution of 1831 is to be found a provision similar to the first sentence of the present Section 17. What was the purpose of including an authorization to the General Assembly to repeal or alter any act ‘ giving’ jurisdiction to the Court of Chancery since equity jurisdiction had been vested in the Court of Chancery and secured from arbitrary legislative action? The answer to this query is, it seems to us, that in the interim between 1792 and 1831, the Legislature by statute had increased the powers of the Chancellor and it was with respect to these enactments that the Legislature was authorized to act.
This situation continued throughout the period 1831 to 1897, the date of adoption of the present constitution. During that interim, the Legislature had continued to confer additional powers upon the Chancellor and the Court of Chancery. The same result obtained, therefore, in 1897 when, in Sections 10 and 17, the constitutional convention re-adopted with respect to the Court of Chancery the same provisions appearing in the Constitution of 1831 except for the addition of a sentence in Section 17 expressly giving the Legislature power to add to Chancery jurisdiction.
The remarks of Judge Spruance before the Convention of 1897, who said the sentence was added ‘ because it was the [32 Del.Ch. 422] thought that not merely ought the General Assembly to have the power to alter the laws which have conferred upon these courts under their former names, jurisdiction, but if the Legislature saw fit it ought to have the power of adding to that jurisdiction’, can have had reference, therefore, only to laws passed subsequent to 1792.
We conclude, therefore, that Section 17 is not an authorization to the Legislature to restrict Chancery jurisdiction to less than it was in 1792. We think the Constitutions of 1792, 1831 and 1897 intended to establish for the benefit of the people of the state a tribunal to administer the remedies and principles of equity. They secured them for the relief of the people. This conclusion is in complete harmony with the underlying theory of written constitutions. Its result is to establish by the Judiciary Article of the Constitution the irreducible minimum of the judiciary. It secures for the protection of the people an adequate judicial system and removes it from the vagaries of legislative whim.
If the opposite view is carried to its logical conclusion, it would permit the practical abolition of all courts by the action of one Legislature. This would be in direct conflict with the provisions concerning the method of amendment of the constitution and, furthermore, would nullify Section 9 of Article I which provides in part that ‘ All courts shall be open; and every man, for an injury done him * * * shall have remedy by the due course of law, and justice * * * according to * * * the law of the land * * *’ .
The result, therefore, is that the general equity jurisdiction of the Court of Chancery is measured in terms of the general equity jurisdiction of the High Court of Chancery of
Create Britain and is a constitutional grant not subject to legislative curtailment, except in so far as the proviso now found in Section 4367, R.C.1935, but originally found as Section 25 of the Colonial Act of 1726-1736, operates to curtail it.
The proviso is to the effect that the Chancellor [32 Del.Ch. 423] shall not hear and determine any cause where a sufficient remedy exists at law. As such, it is both a restriction upon the Chancellor in the exercise of the general equity powers of the Court of Chancery and, at the same time, an implied grant of authority to the Legislature to restrict the Chancellor in the exercise of those powers by the creation of a sufficient remedy in some other tribunal and by making such remedy exclusive to the other tribunal.
When the Legislature under its implied constitutional authority expressly or by necessary ...