James R. POYNTER, Petitioner,
Joseph R. WALLING, Mayor of the Town of Elsmere, Respondent. Earl E. DAVIS, Petitioner,
Joseph R. WALLING, Mayor of the Town of Elsmere, Respondent.
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[54 Del. 411] Henry A. Wise, Jr., Wilmington, for petitioner, James R. poynter.
David B. Coxe, Jr., and Emmett J. Conte, Jr., Wilmington, for petitioner, Earl E. Davis.
Aubrey B. Lank, and Victor F. Battaglia, of Theisen & Lank, Wilmington, for respondent.
Petitioner, James R. Poynter, was charged with driving a motor vehicle in excess of the speed limit in violation of Ordinance No. 74(17)(a)(1)(a), and with operating a motor vehicle while under the influence of intoxicating liquor in violation of Ordinance No. 74(1)(a), both of the Town of Elsmere. Petitioner, Earl E. Davis, was charged with violation of the latter Ordinance--No. 74(1)(a). Both Petitioners filed petitions for a Writ of Prohibition and a rule to show cause in this Court. This Court issued, in each case, a rule to show cause why a Writ of Prohibition should not issue against Joseph R. Walling, Mayor of the Town of Elsmere, prohibiting him from proceeding further, and ordering a stay of proceedings until final disposition of these petitions. All parties filed briefs covering the legal questions involved.
This opinion consolidates the two cases since they involve identical legal questions and since the briefs have been filed in view of such consolidation.
Petitioners have set forth a number of contentions in support of the issuance of Writs of Prohibition. I consider two such contentions of extreme importance and will consider these two in detail. The other contentions will be disposed of rather summarily.
First, Petitioners assert that certain provisions of An Act to Re-incorporate the Town of Elsmere are unconstitutional[54 Del. 412] insofar as they grant to the Mayor the powers of a Justice of the Peace. The argument is that the same person cannot constitutionally be vested with both judicial and executive powers.
This necessitates a somewhat detailed consideration of the Enabling Act creating the Town of Elsmere. 50 Del.Laws, Ch. 428 (1955). Section 5 thereof states that the government of the Town shall be vested in a Mayor and a Town Council. The Mayor shall receive an annual salary of $300.00. Section 8. 'The Mayor shall be the executive of the Town. He shall preside at meetings of the Council, but shall have no vote therein, except in case of ties.' Section 10. 'The Council shall constitute the legislative body of the Town of Elsmere.' Section 11. Section 20 provides as follows:
'* * * The Mayor shall have and exercise, within the limits of the Town, all the powers, authorities, jurisdiction and cognizance of a Justice of the Peace of and over all breaches of the peace and other offenses within the said Town, with power to arrest and hold for bail, or fine and imprison all offenders, and of and over all fines, forfeitures and penalties which may be prescribed by any law of this state or by ordinances of the Town Council regularly passed and enacted for the government of the said Town; * * *. The fees of said Mayor shall be the same as are allowed Justices of the Peace for similar services under the law of this State; * * *. It shall be the duty of the Mayor to keep a book
or docket to be called the 'Mayor's Court Docket of Elsmere' to be provided by the Council, in which all his official acts shall be entered, which docket may be inspected from time to time by the Council, * * *.
'The Mayor shall submit to the Council at each regular meeting thereof a report of all fines and costs collected by him during the ensuing period, and shall pay over to the Council all such fines as well as costs whereupon the Council, if it be satisfied with his report, shall pay to him the amount [54 Del. 413] of said costs in the same manner as other disbursements are allowed and paid. Failure by the Mayor to pay over said finces and costs or failure to make a report to the Council as aforesaid shall constitute a misdemeanor, which shall be cognizable before any Justice of the Peace resident in New Castle County and shall be punished by a fine of not less than one hundred dollars ($100.00) nor more than five hundred dollars ($500.00).'
It is Petitioners' contention that these provisions are unconstitutional, insofar as they vest both the executive and the judicial powers in the Mayor, on the following grounds: (1) the two functions are incompatible; and (2) the provisions violate the doctrine of separation of powers of the Delaware Constitution.
Petitioners do not point out in what ways the Mayor's two functions are incompatible other than the broad assertion that vesting both judicial and executive powers in one person is incompatible per se. Nor does any conflict in the two duties appear from the reading of the provisions. Though the Mayor is the executive of the Town, he has very limited authority to act unless authorized to so act by the Town Council which is the legislative body. See Section 10. The Mayor receives a stated annual salary plus the costs of cases he hears, at the discretion of the Council. His judicial duties are closely checked by the Council. See Section 20. He is not a member of the Council and has no vote at Council meetings except in case of a tie.
What constitutes incompatibility of offices or functions is a difficult question. No standard rule can be laid down. Incompatibility is said to exist where one duty is in subordination of another; where there is a conflict in the two offices; or where the duties and functions are inherently inconsistent and repugnant. 42 Am.Jur. Public Officers § 70 (1942); Throop, ...