Civil Division
The Honorable Bruce C. Ennis
House of Representatives
Legislative Hall
Dover, Delaware 19901 D580C
Re: Interpretation of 9 Del.C.
§4104(c)
Dear Representative Ennis:
You have asked for an opinion of whether 9 Del.C. §4104(c) prohibits
the President and Vice-President of the Levy Court of Kent County from
receiving compensation above the amount established by ordinance pursuant
to 9 Del.C. §4104(a). You have described
the additional compensation as a bonus from Kent County for performing
duties not undertaken by the other Commissioners, but which are nonetheless
undertaken in the course of the performance of those official duties. In
your inquiry, you note that this statute has been revised several times
and that the original language has been modified over time. You ask whether
the Code Revisors acted in excess of their statutory authority in revising
the statute in 1953 when the words "or further" were dropped. You also
ask whether 9 Del.C. §4104(c) is a true and correct statement of
the law.
Your initial inquiry is whether the Code
Revisors exceeded their authority in changing some of the language during
the revision of the Delaware Code in 1953. Specifically, you write that
it appears that the words "or further" were removed from the Code without
express authorization to do so, noting that the relevant section had formerly
read as follows:
'...and the said Levy Court Commissioners shall not be entitled to have or receive any other or further compensation for any services done or performed by them, or any of them, in the said office of Levy Court Commissioner." (Emphasis added.)
Section 1189 of the 1935 Code (governing
the Levy Court of Kent County)
Your concern is whether elimination of
the phrase "or further" in the later revision of the statute manifested
a Legislative intent to allow "further" compensation to Levy Court Commissioners
under certain circumstances. To answer your question, it is helpful to
review the legislative history of the section in question.
Section 1189 of the 1935 Code was amended
by the General Assembly in 1945 by 45 Del.Laws, c. 122, §1 which provided
that the Levy Court Commissioners "shall not be entitled to have or receive
any other or further compensation for any services done or performed by
them, or any of them, in the said office of Levy Court Commissioner.
In 1949, by 47 Del.Laws, c. 377 ("An Act
Providing for the Appointment of a Commission to Revise the Public Laws
of the State of Delaware and Codify and Arrange the same; Appropriation
for Expense Thereof), the General Assembly provided for the creation of
the Revised Code Commission with authority to revise the public laws of
the State of Delaware and codify and arrange them. Id. §1. While
this Commission was not authorized to "omit, amend, change or vary the
meaning of any existing law" (Id. §4), it was authorized "to reject
superfluous words, to condense into as concise and comprehensive form as
is consistent with a full, clear and exact expression of the will of the
Legislature, all circuitous, tautological and ambiguous phraseology..."
Id. §5.
In 1951, the General Assembly amended chapter
377 and reaffirmed that while the Commission was not authorized to "omit,
amend, change or vary the meaning of any existing law," it was authorized
to rewrite statutes in simple, direct and clear language. It also provided
that "incongruities shall be resolved by the Commission in such manner
as to effectuate the true legislative intent." Id. §10.
The omission of the words "or further"
first appeared by House Bill 9 of the 117th General Assembly. This bill
consisted of the entire 1953 code and, due to its length of approximately
5,000 pages, its publication in the session laws was expressly exempted
by 49 Del.Laws, c. 3.
Section 1189 of the 1935 Code was codified
into 9 Del.C. §309 by House Bill 9, and §309(d) provided that "the
Levy Court Commissioners shall not receive from any county any other compensation
for services performed by them, or any of them, in the office of Levy Court
Commissioner." The revision note to the 1953 code merely states the new
9 Del.C. §309 "consolidates sections 1152, 1189 and 1199 of Code
1935."
Therefore, given that the Code Revisors
were authorized to eliminate redundant language and to rewrite statutes
in simple, direct and clear language, it must be concluded that the Revisors
found the phrase "or further" in the compensation clause to have been redundant
in that it came within the plain meaning of the word "other." In fact,
this interpretation is supported by the definition in BLACK'S LAW DICTIONARY
1101 (6th ed. 1990), which defines "other" as "different or distinct from
that already mentioned; additional, or further." Moreover, the elimination
of the words "or further" does not affect the original import of the provision,
which was to limit compensation to the Levy Court Commissioners to that
provided by statute. The General Assembly's enactment of 9 Del.C.
§309 into law made it the law of the land.
9 Del.C. §309 was the predecessor to the present 9 Del.C. §4104 (Salaries of elected officials of the county governing body) which provides as follows:
(a) In Kent County each of the elected officials of the county
governing body shall receive a salary in an amount to be set
by ordinance of the Kent County Levy Court.
(b) The salaries of the officials shall be paid in equal semimonthly
installments in Kent County by warrants according to the
form prescribed by the county government.
(c) Such officials shall not receive any other compensation for
services performed by them, or any of them, in the office of
elected official.
The legal analysis depends upon the application
of principles of statutory construction. It is settled Delaware law that
where the meaning of the statute is clear, one is limited to the application
of the literal meaning of the words. Coastal Barge Corp. v. Coastal
Zone Industrial Control Board, Del.Supr., 492 A.2d 1242, 1246
(1985); Matter of Surcharge Classification 0133 By Delaware Rating Bureau,
Inc., Del.Super., 655 A.2d 295 (1994), aff'd. Del.Supr. 655
A.2d 309 (1995). In considering application of this principle, the
Superior Court has set forth a framework in which to examine and interpret the provisions
of a statute:
The foundational rule of statutory construction is that a court must give a
statute its plain meaning if the statutory language is clear and unambiguous.
That is, the court is "bound to give effect to the literal meaning without
consulting other indicia of intent or meaning when the meaning of the
statutory text itself is 'plain' or 'clear and unambiguous." This rule makes
it necessary first to determine whether a statute has a plain meaning or is
ambiguous in order to know whether other indicia of intent or meaning
should be considered.
Bestemps v. Gibbs, Super.Ct., C.A. No. 98A-04-003, Barron, J.
(October 22, 1998) at 2 (citations omitted).
"Before resort can be made to the usual secondary sources of statutory
construction, a Court under our law must at least find ambiguity as to
the legislative intent . . . in the language of the statute itself." Townshend
v. Liberty Mutual Insurance Co., Super. Ct., C.A. No. 96C-10-180-WTQ,
Quillen, J. (May 22, 1998) at 3.
A reading of the plain language of Subsection (c) indicates that Levy
Commissioners are to receive no compensation for their official duties
other than that compensation specified in Subsection (a). Therefore, bonuses
for any duties taken in the course of the performance of their official
duties as Levy Court Commissioners would be prohibited.
Application of the above principles of statutory interpretation leads
this office to the conclusion that the Code
Revisors' elimination of the words "or further" in the 1953 code revision
was authorized by statute and that 9 Del.C. §4104(c) prohibits the
President and Vice-President of the Levy Court of Kent County from receiving
additional compensation, in the form of yearly bonuses, above the amount
established by ordinance pursuant to 9 Del.C. §4104(a).
Should you have any additional questions or comments, please do not hesitate to contact this office.
Very truly yours,
Ilona M. Kirshon
Deputy Attorney General
APPROVED
Michael J. Rich
State Solicitor
cc: The Honorable M. Jane Brady
Attorney General
Philip Johnson
Opinion Coordinator