Action by discharged Secretary of the Department of Elections of Sussex County for a judgment declaring that election of his successor was invalid and that plaintiff should be reinstated as Secretary and recover from successor all compensation received by successor as Secretary. On defendants' motion to dismiss complaint, the Superior Court, Herrmann, J., held that position of Secretary of the Department of Elections of Sussex County was a public employment and not a public office and that hence an information in the nature of quo warranto was not a proper remedy by which to determine validity of discharge of Secretary and election of his successor.
Motion to dismiss denied.
[48 Del. 369] Samuel R. Russell (of Tunnell & Tunnell), Georgetown, for plaintiff.
Frederick P. Whitney, Georgetown, for defendants.
This is an action for a declaratory judgment.
On February 1, 1952, the plaintiff was elected Secretary of the Department of Elections of Sussex. On March 12, 1953, the plaintiff was discharged by the Department and the defendant Lank was elected Secretary in his place. By this action, the plaintiff seeks the declaration of this Court that the election of Lank was invalid, that the plaintiff should be
reinstated as Secretary and that the plaintiff is entitled to recover from Lank all compensation received by Lank as Secretary.
The defendants move to dismiss the complaint on the ground that title to the post of Secretary of the Department of Elections should be tried in a quo warranto proceeding brought by the Attorney General on behalf of the State and that, therefore, the Court does not have jurisdiction to grant, and the plaintiff does not have the standing to seek, a declaratory judgment in this case.
[48 Del. 370] The defendants' argument may be accepted only if a public office is involved in this controversy. See State ex rel.
Green v. Glenn, 9 W.W.Harr. 584, 4 A.2d 366; Marshall v. Hill, Del.Super., 93 A.2d 524; Brooks v. State ex rel.
Richards, 3 Boyce 1, 79 A. 790, 51 L.R.A.N.S., 1126. I am of the opinion that the position of Secretary of the Department of Elections of Sussex County is not a ‘ public office’ within the recognized meaning of the term as used in the law governing quo warranto proceedings.
The following provisions of the Statute, relating to the Department of Elections, are particularly pertinent:
15 Del.C. § 109 provides:
‘ In New Castle County on the fourth Monday in April in each odd-numbered year, and in Kent and Sussex Counties on the fourth Tuesday in January in each even-numbered year, the members of each Department shall meet and organize by electing one of their members to be president. They shall at the same time elect a secretary. The terms of office of the president and secretary shall be ...