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Opinion of the Justices

Supreme Court of Delaware

April 9, 1963

OPINION OF THE JUSTICES of the Supreme Court in Response to a Question Propounded by the Governor of Delaware.

To His Excellency Elbert N. Carvel, Governor of Delaware:

Reference is made to your letter of April 1, 1963, addressed to the Chief Justice, requesting, in accordance with 29 Del.C. § 2102, the opinion of the members of the Supreme Court as to the effective date of 'AN ACT AGREEING TO A PROPOSED AMENDMENT TO ARTICLE II OF THE CONSTITUTION OF THE STATE OF DELAWARE, RELATING TO THE COMPOSITION OF THE HOUSE AND SENATE, BY PROVIDING FOR EXPANSION AND REAPPORTIONMENT.' (54 Laws, Ch. 1.)

It appears that this Act was passed by the House of Representatives on January 15, 1963, and by the Senate on January 17, 1963. It further appears that the Act was

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not duly certified by the Speaker of the House, the President of the Senate and the other certifying officers of the [56 Del. 119] General Assembly until February 4, 1963. This series of events, however, does not affect the fact that Article II of the Constitution has been effectively amended by the passage of the Act.

The question is, however, as to what date the amendment of Article II became effective. This question becomes urgent because of the requirement of the amendment that the Governor, within 120 days of its effective date, file with the Secretary of State the plan for the redistricting and reapportioning of the General Assembly prepared by the Redistricting Commission created by the amendment.

We assume that the practice of requiring certain officers of the Senate and House to certify acts which have passed their respective Houses is required by the rules of both branches of the General Assembly adopted at the opening of each session for the orderly discharge of the legislative business. This is not referred to by you, but we make the assumption because we find in neither the Constitution nor the statutes of this State any provision requiring the certifying of acts of the General Assembly by its officers, with the exception of 29 Del.C. § 904(c) which is applicable only to acts passed over the veto of the Governor.

In any event, the existence of rules of procedure of the General Assembly or statutes purporting to govern such procedure could not prevail to change a constitutional provision governing a particular matter. The question you have asked us is governed specifically by Article XVI, Section 1 of the Constitution. The pertinent part of this section applying to final passage of a proposed constitutional amendment by the next succeeding General Assembly is as follows:

'* * *; and if in the General Assembly next after the said election such proposed amendment or amendments [56 Del. 120] shall upon yea and nay vote be agreed to by two-thirds of all the members elected to each House, the same shall thereupon became part of the Constitution.'

Article II, Section 10 of the Constitution requires that each House of the General Assembly shall keep a journal of its proceedings in which the final vote by yeas and nays upon all bills finally passed by the particular House shall be entered. We are, of course, quite sure that this provision was followed with respect to the final passage of the amendment before us.

Article XVI, Section 1 provides that when final passage of a proposed amendment by yea and nay vote has taken place in both Houses of the General Assembly, 'the same shall thereupon become part of the Constitution.' This final passage is evidenced by the record of such yea and nay votes in the respective journals of the Senate and ...


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