Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1890-01-30

attended for the reception OF taxes as re-
quired by law, duly returned the plaintiff
to the lsvy court In March, 1855, ss n delil-
quent, the plaintiff not having paid his poll
TAX to him Rs such collector.
1t is also admitted that the plaintiff was
not dead and had not left the State; that
the levy court had no evidence On the sub.
ject bsfore 1t except the collectors return
Of the plaintiff as delinquent, and his am
davlt, made and nled rs prescribed by luw.
II Is also admitted that subsequently, on
March 29th 1883, the defendants, as such
levy court, did ALLOW TO the collector the
said poll tax of the plaintiff, ana did cause
the name OF the plsintliY TO be struck and
dropped from the said assessment list,
whereoy no tax was assessed or laid upon
the person Of the plaintiff for the year next
ensuing ClsS6), and the pialLuf was Ge-
prived OF any and all opportunity, At any
time thereafter, TO pay county tax tor tho
said year Qs6B), then next ensuing, and
thereby Of the right to quslify himself as an
elector to vote at the general election in
said county ip November OF said year. Il Is
further admitted that the plairrif had paid
no tax, under my preceding assessment
within the tive years OF and prior 10 said
election.
The defendants instify their action In
dropping and striking the name OF the
plaintiff from said assessment list and IN
falling to lay tax on him for the year
1886, under the provision Of the act entitled
'AU HCt III felAItOD 10 tQe gOlieDTQD OF
tsxes In this srato, passed Arril 10th, 1873,
being chapter 372 volume NV, Delaware
Laws, and also under section Of ths act
entitl d "An act In relation TO the duties of
assessurs al OF the levy courts IN tue
several counties of this State passed April
9fh 1873 being chapter S7l Of said volume
XIV, Delaware Laws, and defendants also
claim that they cannot be held personally
liable In damages for their action Is mem
bors OK said levy court, while on the con-
trary the plaintiff claims that the provl-
slons OF said acts under which the dafan-
dEnts justify their action as afora' aid are
unconstitutional and void, and that the de-
PENDANTS are personally liahle to him ior
thelr said action.
In this connection 1t Is important TO note
that the plaintiff does not complain that he
was deprived. at any time. OF the oppor-
tunity to pay mis- tex for 1886, either before
or after he was returned or allowed as
delinquent as to said tax, and thereby de-
privod OF the Right to qualify himself as
ain elector at said election. He rests his
clss, rs the record shows exclusively upon
his exclusion from the assessment list for
1885, and from ali opportunity to pay q
county tax for that particular year, pur-
suant to the provisions Of section OF said
chapter 372, and Of eeetion 0 of said chapter
S7i, volume XIV, Aforesaid. BIS SUR is
not Instituted because Of the "eytinguish-
ment' OF his tex for 1885, pursuant TO tae
requirements OF section IS. chapter 12,
Revised Code (anacted prior TO said acts of
| 1879, and whereby he was prevented from
4, payi1g said tax at any time subsequently
TO such allowance as delinquent and prior
to sEid election OF 1886. Therefore, the
real question in this case IL: Whether or
not the said provisions of seld actg Of S73,
| requiring the exclusion Of the plaintiff in
March, 1886, from assessment in and for
that year as poll taxable because he w7s,
In said month. returned and allowed as de-
Nr nv vi f1af4 fpf IL. nd
not whether tao provisions OF eald section
1S, chapter ~, Revised Code. requiring tue
! eEtlnguishment Of the tax OF such de-
| lndnent for 1885, are or nre NOT so, Oon-
| ssqlently, the determination of th latter
! question, upon the present occasion, would
be obiter diutum in the case before us and
obviously improper.
Accordingly, the questions actually re-
| served for the decision CT this court
are: First, Whether or not the saidpro-
| ntne XIV. considered with reftrsnce to
the ease of the psiniG rs pre-
septsd OF record, are Unconstitutional and
| void; and second, II said provisions be SO,
| whethec or not the deisndants are person.
ally liable to the plaiptiI In damages for
| their action hereunder us members Of the
said levy court.
The first OF those questions raises the
following general aud principal inquiries:
| First. Are said eoEtruVartod pr visions
Of said acts OF 1878, in their primary pur-
pose and dest IN, regulation Of the assess.
ment and collection Of county taxes, or
regulation OF the qualification of electors 7
Second. II the former, are they 9 leCih-
mate and appropriate exercise of the tax
ing power-that is TO say, In accordance
with the inherent nature, essential
characteristics and true meaning and pur-
pose CT taxation2
Third. II they be such legitimate exer-
else OF the taxing power OF the General
Assembly, are said provisions OF the acts of
| 1878, nevertheless. unconstitutional aud
void, because they have caused the plain
| till to Us excluded from the assessment list
Of 1886. and, consequently prsclude1 him
from being qualified TO vote at this general
election In thnt year?
These inquiries necsssItate the consldara-
tion OF the said acts of 1873, construed 10
connection with the pre-exlstiug q atutas OF
the State in force et the time OF their enact
ment relating to the assessment and coitec-
| tlon Of taxes. They also require the trus
Interpretation Of the constitution OF this
State in respect to the scope OF Legislative
authority In the exercise OF the taxing
power, as we'll IS In regard TO the nature OF
the elective franchise, with the view Of
aseertaining whether the latter !s aubord-
inate or paramount 70 the legitimate e1er-
elsa by the GsnerRl Assembly OF tho taxing
power for the purpose Of raising with Tsgu-
iarity and certainty the public revenue
|
aud the promotion Of the general wsif4re.
! In the exercise OF thB power OF taxation
ths General Assembly has designated and
empowered certain insrrumentailries or
| sEsACies for the assessment and collection
OF county taxes. These axe she lovy courts
aud he psssssors AMI collectors In the
several counties. Their duties are pra-
scrib and thelt powers conferred by staJu.
tory provisions wLieh IN 20 Legislative
Judgment, ara deemed necessary aud appro-
PIRATE pne system OF county taxation exist
ing and In ogJl a5ioh at tbe time OF tho en-
aGtmsnt OF tGs said acts oil 1878 under pre-
existing statutory provisions than 10 force
| was substantially as 10 lows: Tao assessors
! wafa required to assess IN the tlrst instance, ,
and tte levy court 10 correct aud compile u
tho assessment ii all real and personal
property nor exempted by law and all polls
OF every freeman EOJya tue aga OF 2l.
general esges meut thereof was to bs mad Q
oHe6 IN every tour yeasI and q supplem ep.
tary gsssssm3ut Ruaua!ly.
Hsre follows syncpsia ot the provi-
sioBs ot the law existing prior TO the
passage Of the said Rcrs OF 1873, respect.
ing the duties of the Essessprs and lsvy
courts in respect TO the making, the cor
reGgion, she return and tine appeal from
and completion Of the assessment lists,
tie laying of tine tax rate, DC; and
also OF the oollactoea snd levy coucts in
respect 10 ths collection OF taxes, the re-
turns and allowance OF delinqEeuts, the
extinguishmsnt OF delinquent taxes, &c.
The opinion OF Ju1ga Grubb then con-
tinues
The foregoing system Rud the statutory
provisions relating TO g. which are material
TO the present inquiry, are still IN operation