CHAPTER 261
CONSTITUTIONAL AMENDMENT
RELATING TO JUDICIARY
AN ACT PROPOSING CERTAIN AMENDMENTS TO ARTICLE IV OF THE CONSTITUTION OF THE STATE OF DELAWARE, RELATING TO THE JUDICIARY.
Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met (two-thirds of all the Members elected to each House agreeing thereto):
Section 1. That Article IV of the Constitution of the State of Delaware be amended so as to read as follows:
Section 1. The judicial power of this State shall be vested in a Supreme Court, a Superior Court, a Court of Chancery, an Orphans' Court, a Register's Court, Justices of the Peace, and such other courts as the General Assembly, with the concurrence of two-thirds of all the Members elected to each House, shall have by law established prior to the time this amended Article IV of this Constitution becomes effective or shall from time to time by law establish after such time.
Section 2. There shall be three Justices of the Supreme Court who shall be citizens of the State and learned in the law. One of them shall be the Chief Justice who shall be designated as such by his appointment and who when present shall preside at all sittings of the Court. In the absence of the Chief Justice the Justice present who is senior in length of service shall preside. If it is otherwise impossible to determine seniority among the Justices, they shall determine it by lot and certify accordingly to the Governor.
There shall be six other State Judges who shall be citizens of the State and learned in the, law. One of them shall be Chancellor, one of them President Judge of the Superior Court and of the Orphans' Court and the other four of them Associate Judges of the Superior Court and of the Orphans' Court. Three of the said Associate Judges shall be resident Associate Judges and one of them shall after appointment reside in each County of the State. If it is otherwise impossible to determine seniority of service among the said Associate Judges, they shall determine it by lot and certify accordingly to the Governor.
There shall also be such number of other State Judges to be known as Vice-Chancellors as shall have been provided for by the Constitution or by Act of the General Assembly prior to the time this amended Article N of this Constitution becomes effective and as may be provided for by Act of the General Assembly after such time. Each of such Vice-Chancellors shall be citizens of the State and learned in the law.
Section 3. The Justices of the Supreme Court, the Chancellor and the Vice-Chancellor or Vice-Chancellors, and the President Judge and Associate Judges of the Superior Court and of the Orphans' Court shall be appointed by the Governor, by and with the consent of a majority of all the Members elected to the Senate, for the term of twelve years each, and the persons so appointed shall enter upon the discharge of the duties of their respective offices upon taking the oath of office prescribed by this Constitution. 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 (30) 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.
Appointments to the offices of the State Judiciary shall at all times be subject to all of the following limitations:
First, no more than two of the three Justices of the Supreme Court in office at the same time, shall be of the same major political party, at least one of said Justices shall be of the other major political party;
be of the same major political party, at least two of the five Judges shall be of the other major political party;
Third, at any time when the total number of the offices of the three Justices of the Supreme Court, the five Judges of the Superior Court and Orphans' Court, the Chancellor and all Vice-Chancellors, shall be an even number, not more than one-half of the members of all of such offices shall be of the same major political party; and at any time when the total number of such offices shall be an odd number, then not more than a bare majority of the members of all of such offices shall be of the same major political party, the remaining members of the Courts above enumerated shall be of the other major political party.
Section 4. The Justices of the Supreme Court, the Chancellor and the Vice-Chancellor or Vice-Chancellors, and the President Judge and Associate Judges of the Superior Court and of the Orphans' Court shall respectively receive from the State for their services compensations which shall be fixed by law and paid monthly 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 5. The President Judge of the Superior Court and of the Orphans' Court and the four Associate Judges thereof shall compose the Superior Court and the Orphans' Court, as hereinafter prescribed. The said five Judges shall designate those of their number who shall hold the said courts in the several counties. No more than three of them shall sit together in either of the said courts. In each of the said courts the President Judge when present shall preside and in his absence the senior Associate Judge present shall preside.
One Judge shall constitute a quorum of the said Courts, respectively, except in the Superior Court sitting to try a criminal case involving a charge of capital felony, when three Judges shall constitute a quorum, and except in the Superior Court sitting to try cases of prosecution under Section 8 of Article V of this Constitution, when two Judges shall constitute a quorum, and except in the Orphans' Court sitting to hear appeals from
a Register's Court, when two Judges shall constitute a quorum. One Judge may open and adjourn any of said Courts.
Section 6. Subject to the provisions of Section 5 of this Article, two or more sessions of the Superior Court and of the Orphans' Court may at the same time be held in the same county or in different counties, and the business in the several counties may be distributed and apportioned in such manner as shall be provided by the rules of the said Courts, respectively.
Section 7. The Superior Court shall have jurisdiction of all causes of a civil nature, real, personal and mixed, at common law and all other the jurisdiction and powers vested by the laws of this State in the formerly existing Superior Court; and also shall have all the jurisdiction and powers vested by the laws of this State in the formerly existing Court of General Sessions of the Peace and Jail Delivery; and also shall have all the jurisdiction and powers vested by the laws of this State in the formerly existing Court of General Sessions; and also shall have all the jurisdiction and powers vested by the laws of this State in the formerly existing Court of Oyer and Terminer.
Section 8. The phrase "Supreme Court" as used in Section 4 of Article V of this Constitution and the phrases "Superior Court," "Court of General Sessions of the Peace and Jail Delivery," "Court of Oyer and Terminer" and "Court of General Sessions" wherever found in the law of this State, elsewhere than in this amended Article IV of this Constitution, shall be read as and taken to mean, and hereafter printed as, the Superior Court provided for in this amended Article IV of this Constitution; and the phrase "Chief Justice" wherever found in the law of this State existing at the time this amended Article IV of this Constitution becomes effective, elsewhere than in this amended Article IV of this Constitution, shall be read as and taken to mean, and hereafter printed as President Judge of the Superior Court and of the Orphans' Court, as provided for in this amended Article IV of this Constitution.
Section 9. The Orphans' Court shall have all the jurisdiction and powers vested by the laws of this State in the Orphans' Court.
Section 10. The Chancellor and the Vice-Chancellor or Vice-Chancellors shall hold the Court of Chancery. One of them, respectively, shall sit alone in that court. This court shall have all the jurisdiction and powers vested by the laws of this State in the Court of Chancery. The business of the court shall be distributed by the Chancellor and the Vice-Chancellor or Vice-Chancellors between or among themselves in such manner as to expedite it. The rules of the Court of Chancery shall be made by the Chancellor and he may make general rules providing for the distribution of the business of the court between or among the Chancellor and the Vice-Chancellor or Vice-Chancellors. In any cause or matter in the Court of Chancery that is initiated by an application to a Judge of that Court, the application may be made directly to the Chancellor or a Vice-Chancellor. Causes or proceedings in the Court of Chancery shall be decided, and orders or decrees therein shall be made, by the Chancellor or Vice-Chancellor who hears them, respectively.
In cases of temporary emergency, upon written request made by the Chancellor to the President Judge of the Superior Court and of the Orphans' Court, or to the Senior Associate Judge of said Courts if the said President Judge should be incapacitated or absent from the State, such President Judge or senior Associate Judge, as the case may be, shall be authorized and it shall be his duty to designate one or more of the five Judges of the Superior Court and of the Orphans' Court to sit separately as Acting Vice-Chancellor, or Acting Vice-Chancellors, and hear and decide such causes in the Court of Chancery as the Chancellor may indicate prior to such designation that he desires to be so heard and decided. It shall be the duty of the Judges so designated to serve accordingly as Acting Vice-Chancellors. The Judges hearing and deciding such causes as such Acting Vice-Chancellors shall make all appropriate orders and decrees therein, in their own names as Acting Vice-Chancellors, and, for the purpose of said causes, shall be Judges of the Court of Chancery.
Section 11. The Supreme Court shall have jurisdiction as follows:
(1) To issue writs of error in civil causes to the Superior Court and to determine finally all matters in error in the judg
ments and proceedings of said Superior Court in civil causes.
(2) To issue upon application of the accused, after conviction and sentence, writs of error in criminal causes to the Superior Court in all cases in which the sentence shall be death, imprisonment exceeding one month, or fine exceeding One Hundred Dollars ($100.00), and in such other cases as shall be provided by law; and to determine finally all matters in error in the judgments and proceedings of said Superior Court in such criminal causes; provided, however, that there shall be no writ of error to the Superior Court in cases of prosecution under Section 8 of Article V of this Constitution.
(3) To receive appeals from the Superior Court in cases of prosecution under Section 8 of Article V of this Constitution and to determine finally all matters of appeal in such cases.
(4) To receive appeals from the Court of Chancery and to determine finally all matters of appeal in the interlocutory or final decrees and other proceedings in chancery.
(5) To receive appeals from the Orphans' Court and to determine finally all matters of appeal in the interlocutory or final decrees and judgments and other proceedings in the Orphans' Court.
(6) To issue writs of prohibition, quo warranto, certiorari and mandamus to the Superior Court, the Court of Chancery and the Orphans' Court, or any of the Judges of the said courts and also to any inferior court or courts established or to be established by law and to any of the Judges thereof and to issue all orders, rules and processes proper to give effect to the same. The General Assembly shall have power to provide by law in what manner the jurisdiction and power hereby conferred may be exercised in vacation and whether by one or more Justices of the Supreme Court.
(7) To issue such temporary writs or orders in causes pending on appeal, or on writ of error, as may be necessary to protect the rights of parties and any Justice of the Supreme Court may exercise this power when the court is not in session.
(8) To exercise such other jurisdiction by way of appeal, writ of error or of certiorari as the General Assembly may from time to time confer upon it.
(9) To hear and determine questions of law certified to it by the Court of Chancery, Superior Court or Orphans' Court where it appears to the Supreme Court that there are important and urgent reasons for an immediate determination of such questions by it. The Supreme Court may by rules define generally the conditions under which questions may be certified to it and prescribe methods of certification.
Section 12. The Supreme Court shall always consist of the three Justices composing it except in case of a vacancy or vacancies in their number or in case any one or two of them shall be incapacitated or disqualified to sit by reason of interest, in any of which cases the Chief Justice of the Supreme Court, or if he be disqualified or incapacitated or if there be a vacancy in that office, the Justice who by seniority is next in rank to the Chief Justice, shall have the power to designate from among the Chancellor, the Vice-Chancellor or Vice-Chancellors, and the Judges of the Superior Court, one or more persons to sit in the Supreme Court temporarily to fill up the number of that court to three Justices and it shall be the duty of the person or persons so designated to sit accordingly, provided, however, that no one shall be so designated to sit in the Supreme Court to hear any cause in which he sat below. Three Justices shall constitute a quorum in the Supreme Court. Any one of the Justices of the Supreme Court may open and adjourn court.
Section 13. In matters of chancery jurisdiction in which the Chancellor and all the Vice-Chancellors are interested or otherwise disqualified, the President Judge of the Superior Court and of the Orphans' Court shall have jurisdiction, or, if the said President Judge is interested or otherwise disqualified, the senior Associate Judge not interested or otherwise disqualified shall have jurisdiction.
Section 14. The President Judge of the Superior Court and of the Orphans' Court or any Associate Judge shall have power, in the absence of the Chancellor and all the Vice-Chancellors
from the county where any suit in equity may be instituted or during the temporary disability of the Chancellor and all the Vice-Chancellors, to grant restraining orders, and the said President Judge or any Associate Judge shall have power, during the absence of the Chancellor and all the Vice-Chancellors from the State or his and their temporary disability, to grant preliminary injunctions pursuant to the rules and practice of the Court of Chancery; provided that nothing herein contained shall be construed to confer general jurisdiction over the case.
Section 15. The Governor shall have power to commission a judge or judges ad litem to sit in any cause in any of said Courts when by reason of legal exception to the Judges authorized to sit therein, or for other cause, there are not a sufficient number of Judges available to hold such Court. The commission in such case shall confine the office to the cause and it shall expire on the determination of the cause. The judge so appointed shall receive reasonable compensation to be fixed by the General Assembly. A Member of Congress, or any person holding or exercising an office under the United States, shall not be disqualified from being appointed a judge ad litem.
Section 16. The jurisdiction of each of the aforesaid courts shall be co-extensive with the State. Process may be issued out of each court, in any county, into every county. No costs shall be awarded against any party to a cause by reason of the fact that suit is brought in a county other than that in which the defendant or defendants may reside at the time of bringing suit.
Section 17. The General Assembly, notwithstanding anything contained in this Article, shall have power to repeal or alter any Act of the General Assembly giving jurisdiction to the former Court of Oyer and Terminer, the former Superior Court, the former Court of General Sessions of the Peace and Jail Delivery, the former Court of General Sessions, the Superior Court hereby established, the Orphans' Court or the Court of Chancery, in any matter, or giving any power to either of the said courts. The General Assembly shall also have power to confer upon the Superior Court, the Orphans' Court and the Court of Chancery jurisdiction and powers in addition to those hereinbefore mentioned. Until the General Assembly shall otherwise direct, there shall be an appeal to the Supreme Court in all cases in which there is an appeal, according to any Act of the General Assembly, to the former Court of Errors and Appeals or to the former Supreme Court of this State.
Section 18. Until the General Assembly shall otherwise provide, the Chancellor and the Vice-Chancellor or Vice-Chancellors, respectively, shall 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 President Judge of the Superior Court and of the Orphans' Court and the Associate Judges of said Courts shall each singly exercise all the powers which any law of this State vests in the Judges singly of the former Superior Court, whether as members of the Court or otherwise.
Section 19. Judges shall not charge juries with respect to matters of fact, but may state the questions of fact in issue and declare the law.
Section 20. In civil causes where matters of fact are at issue, if the parties agree, such matters of fact shall be tried by the court, and judgment rendered upon their decision thereon as upon a verdict by a jury.
Section 21. In civil causes, when pending, the Superior Court shall have the power, before judgment, of directing, upon such terms as it shall deem reasonable, amendments in pleadings and legal proceedings, so that by error in any of them, the determination of causes, according to their real merits, shall not be hindered; and also of directing the examination of witnesses and parties litigant.
Section 22. At any time pending an action for debt or damages, the defendant may bring into court a sum of money for discharging the same, together with the costs then accrued and the plaintiff not accepting the same, if upon the final decision of the cause, he shall not recover a greater sum than that so paid into court for him, he shall not recover any costs accruing after such payment, except where the plaintiff is an executor or administrator.
Section 23. By the death of any party, no suit in chancery or at law, where the cause of action survives, shall abate, but, until the General Assembly shall otherwise provide, suggestion of such death being entered of record, the executor or administrator of a deceased petitioner or plaintiff may prosecute the said suit; and if a respondent or defendant dies, the executor or administrator being duly serviced with a scire facias thirty (30) days before the return thereof shall be considered as a party to the suit, in the same manner as if he had voluntarily made himself a party; and in any of those cases, the court shall pass a decree, or render judgment for or against executors or administrators as to right appertains. But where an executor or administrator of a deceased respondent or defendant becomes a party, the court upon motion shall grant such a continuance of the cause as to the judges shall appear proper.
Section 24. Whenever a person, not being an executor or administrator, appeals or applies to the Supreme Court for a writ of error, such appeal or writ shall be no stay of proceedings in the court below unless the appellant or plaintiff in error shall give sufficient security to be approved by the court below or by a judge of the Supreme Court 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.
Section 25. No writ of error shall be brought upon any judgment heretofore confessed, entered or rendered, or upon any judgment hereafter to be confessed, entered or rendered, but within six (6) months after the confessing, entering or rendering thereof; unless the person entitled to such writ be an infant, non compos mentis, or a prisoner, and then within six months exclusive of the .time of such disability.
Section 26. The Prothonotary of each County shall be the Clerk of the Superior Court in and for the County in which he holds office. He may issue process, take recognizance of bail and enter judgments, according to law and the practice of the court. No judgment in one county shall bind lands or tenements in another until a testatum fieri facias being issued shall be entered
of record in the office of the Prothonotary of the County wherein the lands or tenements are situated. Such Prothonotary shall perform all duties heretofore performed by the Clerk of the Peace as Clerk of the former Court of General Sessions and the former Court of Oyer and Terminer.
Section 27. The Supreme Court shall have the power to appoint a Clerk to hold office at the pleasure of the said Court. He shall receive from the State for his services a compensation which shall be fixed from time to time by the said Court and paid monthly.
Section 28. The General Assembly may by law give to any inferior courts by it established or to be established, or to one or more justices of the peace, jurisdiction of the criminal matters following, that is to say--assaults and batteries, carrying concealed a deadly weapon, disturbing meetings held for the purpose of religious worship, nuisances, and such other misdemeanors as the General Assembly may from time to time, with the concurrence of two-thirds of all the Members elected to each House, prescribe.
The General Assembly may by law regulate this jurisdiction, and provide that the proceedings shall be with or without indictment by grand jury, or trial by petit jury, and may grant or deny the privilege of appeal to the Superior Court; provided, however, that there shall be an appeal to the Superior Court in all cases in which the sentence shall be imprisonment exceeding one (1) month, or a fine exceeding One Hundred Dollars ($100.00).
Section 29. There shall be appointed, as hereinafter provided, such number of persons to the office of Justice of the Peace as shall be directed by law, who shall be commissioned for four (4) years.
Section 30. Justices of the Peace and the judges of such courts as the General Assembly may establish, or shall have established prior to the time this amended Article IV of this Constitution becomes effective, pursuant to the provisions of Section 1 or Section 28 of this Article, shall be appointed by
the Governor, by and with the consent of a majority of all the Members elected to the Senate, for such terms as shall be fixed by this Constitution or by law.
Section 31. The Registers of Wills of the several counties shall respectively hold the Register's Court in each County.. Upon the litigation of a cause the depositions of the witnesses examined shall be taken at large in writing and made part of the proceedings in the cause. This court may issue process throughout the State. Appeals may be taken from a Register's Court to the Orphans' Court. In cases where a Register of Wills is interested in questions concerning the probate of wills, the granting of letters of administration, or executors' or administrators' accounts, the cognizance thereof shall belong to the Orphans' Court.
Section 32. An executor or administrator shall file every account with the Register of Wills for the County, who shall, as soon as conveniently may be, carefully examine the particulars with the proofs thereof, in the presence of such executor or administrator, and shall adjust and settle the same according to the right of the matter and the law of the land; which account so settled shall remain in his office for inspection; and the executor, or administrator, shall within three (3) months after such settlement give notice in writing to all persons entitled to shares of the estate, or to their guardians, respectively, if residing within the State, that the account is lodged in the said office for inspection.
Exceptions may be made by persons concerned to both sides of every such account, either denying the justice of the allowances made to the accountant or alleging further charges against him; and the exceptions shall be heard in the Orphans' Court for the County; and thereupon the account shall be adjusted and settled according to the right of the matter and the law of the land.
The General Assembly shall have power to transfer to the Orphans' Court all or a part of the jurisdiction by this Constitution vested in the Register of Wills and to vest in the Orphans' Court all or a part of such jurisdiction and to provide for appeals from that Court exercising such jurisdiction.
Section 33. The style in all process and public acts shall be THE STATE OF DELAWARE. Prosecutions shall be carried on in the name of the State.
Section 34. The Chancellor, Chief Justice and Associate Judges in office at and immediately before the time this amended Article IV of this Constitution becomes effective shall hold their respective offices until the expiration of their terms respectively and shall receive the compensation provided by law. They shall, however, be hereafter designated as follows:
The Chancellor shall continue to be designated as Chancellor;
The Chief Justice shall hereafter be designated as President Judge of the Superior Court and of the Orphans' Court;
The Associate Judges shall hereafter be designated as Associate Judges of the Superior Court and of the Orphans' Court.
The Vice-Chancellor in office at and immediately before the time this amended Article IV of this Constitution becomes effective shall hold his office until the expiration of the period of twelve years from the date of the commission for the office of Vice-Chancellor held by him at the time this amended Article IV of this Constitution becomes effective and shall receive the compensation provided by law. He shall continue to be designated as Vice-Chancellor.
Section 35. All writs of error and appeals and proceedings pending, at the time this amended Article IV of this Constitution becomes effective, in the Supreme Court as heretofore constituted shall be proceeded within the Supreme Court hereby established, and all the books, records and papers of the said Supreme Court as heretofore constituted shall be the books, records and papers of the Supreme Court hereby established.
All suits, proceedings and matters pending, at the time this amended Article IV of this Constitution becomes effective, in the Superior Court as heretofore constituted shall be proceeded within the Superior Court hereby established and all the books,
records and papers of the said Superior Court as heretofore constituted shall be the books, records and papers of the Superior Court hereby established.
All indictments, proceedings and matters of a criminal nature pending in the former Court of General Sessions and in the former Court of Oyer and Terminer, at the time this amended Article IV of this Constitution becomes effective, and all books, records and papers of said former Court of General Sessions and former Court of Oyer and Terminer shall be transferred to the Superior Court hereby established, and the said indictments, proceedings and matters pending shall be proceeded with to final judgment and determination in the said Superior Court hereby established.
The Court of Chancery is not affected by this amended Article IV of this Constitution otherwise than by the provisions with respect to a Vice-Chancellor or Vice-Chancellors.