[47 Del. 119] To His Excellency Elbert N. Carvel, Governor of Delaware:
The Justices of the Supreme Court refer to your letter dated January 16, 1952, addressed to the Chief Justice, propounding certain questions upon which the opinions of the Justices are requested. These questions are as follows:
1. In the case referred to in Mr. Reichert's letter, would the Attorney General be disqualified to investigate the charge by Mr. Reichert?
2. If the Attorney General is disqualified in such a case, does the Governor have the power to name a special prosecutor to investigate these charges?
3. Is there any way that this complaint can be laid before the Grand Jury of New Castle County without action by the Attorney General?
The letter referred to concerns a request of the writer for an investigation by the grand jury of alleged vote-buying in recent elections in Blackbird Hundred, New Castle County, and a further request that the Governor appoint a special prosecutor to conduct the investigation because of the alleged disqualification of the Attorney General.
[47 Del. 120] Upon receipt of your letter the Justices of the Supreme Court requested the assistance of counsel to brief and argue the questions propounded in your letter, as well as certain additional questions deemed pertinent to the consideration of the questions propounded.
The additional questions are as follows:
Whether the provisions of Paragraph 374 of the Revised Code of Delaware of 1935 are constitutional and valid.
Whether, if such provisions are constitutional and valid they are applicable to the Supreme Court, or to the members of the Supreme Court, as now constituted.
Whether, if the first two questions are answered in the affirmative, any or all of the questions posed by the Governor fall within the purview of those provisions.
Accordingly, the questions propounded by you, as well as the additional questions, have been briefed and argued by the counsel designated for the purpose.
The Justice of the Supreme Court, having now fully considered the questions upon which their opinions have been requested, as well as the additional questions above mentioned, respectfully submit the opinions set forth below.
1. Upon the Governor's first question the opinion of all the Justices is as follows:
Paragraph 374 of the 1935 Code reads as follows:
'The Chancellor and Judges, whenever the Governor shall require it for public information, or to enable him to discharge the duties of his office with fidelity, shall give him their opinions in writing touching the proper construction of any provision in the Constitution of this State or of the United States, or the constitutionality of any law enacted by the Legislature of this State.'
[47 Del. 121] In our opinion, the subjects upon which advisory opinions may be required are those specified in the statute and none other. The first question propounded is not one touching the construction of any provision in the Constitution of this State or of the United States, or the constitutionality of any law enacted by the Legislature of this State, and hence is not one contemplated by the statute. We find provision in the Constitution of this State which bears upon the subject of disqualification of the Attorney General arising from personal interest or bias in a particular case, or any provision the construction or interpretation of which would supply any answer to this question. Moreover, the question of disqualification is one primarily of fact, to be judicially determined by a court in a proper proceeding; it cannot be determined by the Governor ex parte. Hence an answer to the question is not required to enable the Governor to discharge the duties of his office.
We are of opinion that the first question is not one within the purview of the provisions of Paragraph 374 of the Revised Code of 1935, and must respectfully request to be excused from making answer thereto.
2. Upon the second question the opinion of all the Justices is as follows:
Since the question of the alleged disqualification of the Attorney General has not been determined, the question is a hypothetical one. Members of the judiciary in other states requiring advisory opinions to the other departments of the government have consistently adhered to the rule that answers to hypothetical or theoretical questions may not properly be required or given. The question proponded should have a bearing upon a present constitutional duty awaiting performance by the executive.
In re Opinion of the ...