CHAPTER 324

AMENDMENT TO CONSTITUTION

AN ACT PROPOSING AN AMENDMENT TO ARTICLE IV OF THE CONSTITUTION OF THE STATE OF DELAWARE RELATING TO THE NUMBER OF STATE JUDGES, AND THE CREATION OF THE CONSTITUTIONAL OFFICE OF VICE CHANCELLOR.

Be it enacted by the Senate and the House of Representatives of the State of Delaware in General Assembly met (two-thirds of all members elected to each House concurring therein):

Section 1. That Article IV of the Constitution of the State of Delaware be and the same is hereby amended by striking out all of Section 2 thereof and by substituting in lieu thereof the following new Section 2:

Section 2. There shall be seven State Judges who shall be learned in the law. One of them shall be Chancellor, one of them shall be Chief Justice, one of them shall be Vice Chancellor, and the other four of them shall be Associate Judges.

The Chancellor, Chief Justice, Vice Chancellor and one of the Associate Judges may be appointed from and reside in any part of the State. The other three Associate Judges may be appointed from any part of the State. They shall be resident Associate Judges, and one of them shall reside in each county.

In case the commission of two or more of the Vice Chancellor and the Associate Judges shall be of the same date, they shall as soon as conveniently may be after their appointment, determine their seniority by lot, and certify the result to the Governor.

Section 2. That Article IV of the Constitution of the State of Delaware be and the same is hereby amended by striking out all of Section 3 thereof and by substituting in lieu thereof the following new Section 3:

Section 3. The Chancellor, Chief Justice, Vice Chancellor and Associate Judges shall be appointed by the Governor, by and with the consent of a majority of all members elected to the Senate, for the term of twelve years. Provided, however, that the present incumbents in the offices of Chancellor, Chief Justice and Associate Judges, shall continue in said offices until the expiration of the terms of office for* which they may have been appointed.

If a vacancy shall occur, by expiration of term or otherwise, at a time when the Senate shall not be in session, the Governor shall within thirty days after the happening of any such vacancy convene the Senate for the purpose of confirming his appointment to fill said vacancy, and the transaction of such other executive business as may come before it. Such vacancy shall be filled as aforesaid for the full term. The said appointments shall be such that no more than four of the persons occupying said offices at the same time shall have been appointed from the same political party.

Section 3. That Article IV of the Constitution of the State of Delaware be and the same is hereby amended by striking out all of Section 4 thereof and by substituting in lieu thereof the following new Section 4:

Section 4. The Chancellor, Chief Justice, Vice Chancellor and Associate Judges shall respectively receive from the State for their services a compensation which shall be fixed by law and paid monthly and shall not be less than the annual sum of ten thousand dollars, and they shall not receive any fees or perquisites in addition to their salaries for business done by them except as provided by law. They shall hold no other office of profit.

Section 4. That Article IV of the Constitution of the State of Delaware be and the same is hereby amended by striking out all of Section 10 thereof and by substituting in lieu thereof the following new Section 10:

Section 10. The Chancellor and the. Vice Chancellor shall hold the Court of Chancery. One shall constitute a quorum of the said court. The Chancellor shall be the senior and presiding judge of said court. This court shall have all the jurisdiction and powers vested by the laws of this State in the Court of Chancery, and the Vice Chancellor shall exercise all powers given by law to the Chancellor as the Judge holding the Court of Chancery as fully as though said powers had been specifically given to the Vice Chancellor.

Section 5. That Article IV of the Constitution of the State of Delaware be and the same is hereby amended by striking out all of Section 13 thereof and by substituting in lieu thereof the following new Section 13:

Section 13. The Supreme Court upon a writ of error to the Superior Court, Court of Oyer and Terminer, or Court of General Sessions or upon appeal from the Court of General Sessions shall consist of the Chancellor, the. Vice Chancellor and such of the other five Judges as did not sit in the cause below. The Chancellor when present shall preside and in his absence the Chief Justice when present shall preside, and in his absence the senior judge present of the Vice Chancellor and the Associate Judges shall preside. Any three of them shall constitute a quorum, and one of them may open and adjourn the Supreme Court.

Section 6. That Article IV of the Constitution of the State of Delaware be and the same is hereby amended by striking out all of Section 16 thereof and by substituting in lieu thereof the following new Section 16:

Section 16. In matters of Chancery jurisdiction in which the Chancellor and Vice Chancellor are both interested or otherwise disqualified, the Chief Justice shall have jurisdiction, and there shall be an appeal to the Supreme Court, which shall in that case consist of the four Associate Judges, the senior Associate Judge present presiding. Any three of them shall constitute a quorum, and any one of them may open and adjourn court.

Section 7. That Article IV of the Constitution of the State of Delaware as amended by 32 Delaware Laws, Chapter 1, be and the same is hereby further amended by striking out all of Section 17 thereof and by substituting in lieu thereof the following new Section 17:

Section 17. The Chief Justice or any Judge of the Superior Court of the State of Delaware shall have power, in the absence of the Chancellor and Vice Chancellor, from the county where any suit in equity may be instituted, or during the temporary disability of the Chancellor and Vice Chancellor, to grant restraining orders, and the Chief Justice or any Judge of the Superior Court of the State of Delaware, shall have power, during the absence of the Chancellor and Vice Chancellor from the State or their temporary disability, to grant preliminary injunctions, pursuant to the rules of the Court of Chancery; provided that nothing herein contained shall be construed to confer general jurisdiction over the case.

Section 8. That Article IV of the Constitution of the State of Delaware be and the same is hereby amended by striking out all of Section 21 thereof and by substituting in lieu thereof the following new Section 21:

Section 21. Until the General Assembly shall otherwise provide, the Chancellor and Vice Chancellor shall each singly exercise all the powers which any law of this State vests in the Chancellor besides the general powers of the Court of Chancery, and the Chief Justice and Associate Judges shall each singly exercise all the powers which any law of this State vests in the judges singly of the Superior Court.

Section 9. That Article IV of the Constitution of the State of Delaware be and the same is hereby amended by striking out all of Section 27 thereof and by substituting in lieu thereof the following new Section 27:

Section 27. Whenever a person, not being an executor or administrator, appeals from a decree entered in the Court of Chancery, or applies for a writ of error, such appeal or writ shall be no stay of proceedings in Chancery, or the court to which the writ issues, unless the appellant or plaintiff in error shall give sufficient security, to be approved respectively by the Chancellor or Vice Chancellor, who signed the decree appealed from, or by a judge of the court from which the writ issues, that the appellant or plaintiff in error shall prosecute respectively his appeal or writ to effect, and pay the condemnation money and all costs, or otherwise abide the decree in appeal or the judgment in error if he fail to make his plea good.

SCHEDULE

That no conflict or confusion may arise from these amendments, it is hereby declared and ordained as follows:

Section 1. That the present incumbents in the office of Chancellor, Chief Justice and Associate Judges shall continue in said offices respectively until the expiration of the terms of office for which they have been appointed respectively.

Section 2. That the present incumbent in the office of Vice Chancellor shall be deemed to have been appointed to the office of Vice Chancellor, provided for by the Constitution as amended as of the date of his original appointment as Vice Chancellor, pursuant to law, and said Vice Chancellor shall hold said office of Vice Chancellor for a term of twelve years from the date of his original appointment and thereafter the office of Vice Chancellor shall be appointed as provided by the Constitution as amended.

Section 3. The salary now provided for the office of Vice Chancellor pursuant to law shall be the salary for the office of Vice Chancellor provided for by this Constitution as amended until otherwise provided by law.