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Monacelli v. Grimes

Supreme Court of Delaware

August 5, 1953

MONACELLI
v.
GRIMES.

Page 256

Personal injury action against nonresident motorist wherein defendant moved to quash service and dismiss action on ground that service had not been made in accordance with 1953 codification of statute authorizing substituted service on nonresident motorist. The Superior Court of New Castle County certified to the Supreme Court for its answer certain of the questions of law presented. That Court, Southerland, C. J., held that the 1953 codification had changed, rather than merely clarified, the meaning of the statute and distinguishing between ‘ purpose’ and ‘ intent’, held that, notwithstanding the legislative ‘ purpose’ to codify the law without changing it, the General Assembly must be deemed to have ‘ intended’ to alter the procedure for service of process upon a nonresident motorist.

Questions answered in accordance with opinion.

Wolcott, J., dissented in part.

Page 257

[48 Del. 124] Stewart Lynch, of Wilmington, for plaintiff.

William Prickett, of Wilmington, for defendant.

SOUTHERLAND, Chief Justice, WOLCOTT, Justice and LAYTON, Judge, sitting.

SOUTHERLAND, Chief Justice.

The Superior Court of New Castle County has certified to us for answer, under Article IV, Section 11(9), of the Constitution, Del.C., certain questions of law arising out of the following facts:

In the court below plaintiff brought suit against defendant to recover damages for personal injuries suffered in an automobile accident that had occurred in the State of Delaware. Defendant was at the time of the accident and still is a resident of the State of Massachusetts. Complaint and praecipe were filed February 24, 1953, and the summons and complaint were served on the Secretary of State February 25. The writ was returned by the Sheriff March 10, 1953, and on that date a copy of the summons showing service thereof, together with a copy of the complaint and a letter from plaintiff's attorney, were sent to defendant by registered mail. Defendant thereafter moved to quash the service and dismiss the action on the ground that the service had not been made as required by law.

Paragraph 4590, Revised Code of 1935, provided that service of process upon nonresident

Page 258

motor vehicle operators involved in an accident in Delaware should be made by serving the process upon the Secretary of State and sending ‘ forthwith’ to the non-resident defendant by registered mail ‘ a copy of the process with notice of such service’ .

In the Code of 1953, which became effective February 12, 1953, the language of this paragraph was changed to provide that there should be sent to the non-resident defendant by registered mail, ‘ not later than the day following the commencement of the action a copy of the process and notice that service * * * has or will soon be made upon the Secretary of State’ .10 Del.C. § 3112.

[48 Del. 126] The service in this case was in accordance with the language of the 1935 Code; it did not conform to the language of the 1953 Code.

The Superior Court has certified to us four questions as follows:

‘ 1. In enacting the Delaware Code of 1953, did the General Assembly of the State of Delaware intend to alter the procedure for service of process upon non-residents as set forth in Section 4590 of the Revised Code of 1935, to the method of service set forth in Title 10, Section 3112 of the Delaware Code of 1953?

‘ 1 A. What is the proper construction of Title 10, § 3112, of the Delaware Code of 1953, and the effect of its passage upon the procedure for service of process upon non-residents as set forth in § 4590 of the Revised Code of 1935?

‘ 2. If the answer to the first question is in the affirmative, is the provision for service in Title 10, Section 3112 Delaware Code of 1953 applicable to causes of action which arose prior to its effective date?

‘ 3. If the answer to both of the preceding questions is in the affirmative, is the title of the Act of the General Assembly by which the 1953 Code was adopted sufficient to meet the requirements of Article 2, Section 16 of the Delaware Constitution?’

We take up Question 1.

The Act of the General Assembly approved February 12, 1953, adopted a revision and codification of the public and general statutes of the State.Del.C.Ann., vol. 2, p. 118. It was enacted as positive law. The circumstances of its preparation, submission, and passage are as follows:

By act approved June 30, 1949, Vol. 47, Laws of Del.Ch. 377, there was created The Revised Code Commission, consisting of three commissioners with appropriate qualifications to be appointed by the Governor. The Commission was authorized and directed ‘ to revise, codify and arrange in a systematic and condensed [48 Del. 127] form, all the statute laws of the State of Delaware of a public and general nature’ . Section 3. The Commission was to follow as nearly as possible the general scheme of the Code of 1935, ‘ but in no case is the said Commission authorized to omit, add to, amend, alter, change or vary the meaning of any existing law to be embraced in said work.’ Section 4.

Section 5 of the act of 1949 provides:

‘ That the said Commission is authorized to omit enactments that are redundant and have ceased to have any effect on existing rights and remedies, to reject superfluous words, to condense into as concise and comprehensive form as is consistent with a full, clear and exact expression of the will of the Legislature, all circuitous, tautological and ambiguous phraseology, and in a separate report to be made to the next biennial session of the General Assembly, to suggest any mistakes, omissions, inconsistencies and imperfections that may appear in the laws to be revised, codified and arranged in accordance with the provisions of this Act, and the manner in which they may be corrected, supplied and amended by act of the General Assembly.’

Page 259

The Commission was directed to make full report of its work to the next biennial session of the General Assembly.

On January 1, 1951, the Commission submitted its report. Explaining certain difficulties it had met with, it recommended, among other things, that the time for the completion of the Code be extended until the next biennial session. In the course of its report the Commission said:

‘ In a project of this nature, there are three possible methods that may be followed:

‘ (1) The preparation of a compilation which is nothing more than the assembling or collation of the effective present statutes, as nearly as possible in the order in which they appear in the old code that is to be superseded, without changing the language of the statutes in any way that is not patently essential. This is what is generally meant by the term ‘ codification.’

[48 Del. 128] ‘ (2) The preparation of a revision and reformation proposing changes in the substance of the law according to the opinion of the draftsmen.

‘ (3) The preparation of a revision, properly speaking, in which manifest errors are corrected, obsolete, amended and repealed statutes eliminated, incongruities removed, and (to the extent that time and other circumstances permit) the law restated simply and understandably.’ (First Report to Legislature on Delaware Code Revision, p. 6.)

The Commission pointed out that the second method was not intended by the legislature and referred to the language of Section 4 of the act of 1949 forbidding it to change the meaning of any existing law.

The Commission expressed some doubt whether the first or third methods was intended by the legislature, but reported that after consideration it had determined upon the third method, believing that to be within the powers conferred by the act of 1949.

The Commission reported its basic policy to be as follows:

‘ The revision is not to be a mere compilation of existing laws. Neither is it to embody policy changes in the substance of the law.’ (First Report, p. 8.)

The Commission further reported that it had departed from the arrangement of the 1935 Code, and had adopted a system of titles characteristic of the United States Code and of other recent state codes.

The General Assembly, in evident approval of the Commission's report, amended the act of 1949 to carry out certain recommendations of the Commission, including the extension of time requested. See Vol. 48, Laws of Del., Ch. 128. By an amendatory section 9 authority was in effect conferred upon the Commission to prepare a revision-not a mere compilation-, to eliminate obsolete and unconstitutional laws, to resolve incongruities, [48 Del. 129] and to integrate and synthesize statutes dealing with the same subject; but this authority was limited as before by a mandate that ‘ in no case is the Commission authorized to omit, add to, amend, alter, change or vary the meaning of any existing law to be embraced in the work.’

Having completed its work, the Commission submitted the Revised Code to the 1953 session of the General Assembly, together with a report dated December 31, 1952.Del.C.Ann., vol. 2, p. IX. A section of the report, under the heading ‘ Nature and Extent of Revision of Statutes', dealt with certain changes in the revision which were substantial in nature. The Commission reported that there had been omitted from the Code statutes which had been found to be obsolete, to have been fully executed, to have been superseded by later enactments, to be in conflict with court rules authorized by statute, or to have been declared unconstitutional. The Commission further reported:

‘ Incongruities and inconsistencies found in the statutes were resolved

Page 260

after a careful analysis of the statutes involved and with a conscientious effort to ascertain and effectuate the true legislative intent.’

Changes made necessary by the reorganization of the courts resulting from the 1951 amendments to the judiciary article of the Constitution were referred to; and specific attention was called to revisions of the statutes relating to the jurisdiction of inferior courts in criminal cases.

The Commission then said:

‘ The Commission has made no changes in the substance or meaning of the law as it has existed heretofore, except those of the character mentioned above and which the Commission regarded as within the scope of its powers.’ (Report of the Revised Code Commission, p. 10.)

Thereafter the Code was duly adopted by the requisite vote of each house of the General Assembly and approved by the Governor.

[48 Del. 130] From the foregoing outline of the background of the preparation and adoption of the 1953 Code it is clear that, except to the limited extent indicated in its report, the Code Commission had not intended to recommend, and it was not the purpose of the legislature to adopt, any changes in substantive law. It was, however, inevitable that in grappling with a task of such magnitude questions of judgment with respect to the precise limitation of the Commission's authority should arise. Moreover, it is not surprising that attempts to simplify or clarify procedural provisions in the statutes might unintentionally effect a real change in substance or meaning.

The first question before us is whether the changes made by the Commission in rewriting Paragraph 4590 of the 1935 Code effected ...


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