Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1890-01-30
JUDGE HOUSTON DISSENvS
EXT OF MS OPINION ON TEE TAX
LAWS VdLIDITf.
Ehc u.ayv OF 1873 and the Practice OF
the Levy Court Both in Direct Con-
4 sravsntion 20 thc Provisions of the
Constitution.

Tho formal opinions OF Chief Justice
Co:negy's and Judge Grubb, sustaining
the constitutionality of the tax laws,
were concurred 10 by Chancellor Ssuls-
bury and Judge Paynter, Judge Houston
alone dissenting. Judge Paynter did not |
\ prepare written opinion, but stated that |
he regarded Legislative action in passing |
the tax law of 1873 as a proper exercise
Y of the power OF the Legislature to regu-
late the imnosition and collection %
taxes, and that the rot was in full accord |
with the constitution Of tue State.
Chancellor salisbury said he had no
doubt of tho entire constitutionaiity of
tho law, and he did not think TINT tire
court of any state or OF the United States
would declare it unconstitutional.
JUDGE HoUsToN's OPINION.
e Judge Houston said that the question of
ehe meaning OF that portion Of the Gonsti-
tuition concerning suffrage Ind always
been an interesting ons TO him. He RS.
ferred to Judge Gllpln In complimentary
terms. He said the constitution gave man
an inherent right to vote. hen were
spoken of as citizens and the qualifications
OF citizenship were residence In state d
certain ttmn. Although the portions OF
the constitute were framed for tho pur-
pose OF raising revenue 1t Intended that
every one should have the fundamental
right to vote, and this, he thought, could
not bo interfored with by the Legislature.
Fl II the statute OF 1873 has the effect TO inn
pede, impair or limit the right to qualify
s to vote 1t controverts the idea OF the con-
btltutlon. The constitution contemplated
that every one should have full, Tree and
reasonable opportunity to vote. He said
again that voting was o RICH and not a
private or particular privilege. A privi-
lego IA something granted to one by some
person who could withhold 1t from others.
W rho Judge then said: "The design and
purpose OF GU state constitution, from tbs
beginning after the achievement of the In
Ky dependence OF this country by the war OF
the revolution In 1915, was to ordain and
establish In express and explicit terms,
s. within its territorial limits, republican
form OF government, or In other words,
tl seifgovernment OF the people In It for the
people and by the people, OF the citlz3no OF
it. And as 1t was framed by delegates
elected by all tho citizens of 1t then quail
fisd % vote NJ elections for members OF the
VA Legislature OF II, for the purpose OF form
ing our first State constitution, they seemed
a to have assumed and recognized that every
s. such ctiz IN of 1t should constitute one OF
the component members OF his government
or body poli.lc thus formed by and for the
n purpose of putting and continuing In oper-
alton the machinery o II, II may ua such
ia n figure of speech, devised and ordained
4 by lnem, should have CONSTITUTIONAL and
legn right to vote AT AL popular elections
N provided Tor or under It, subject to such
limitations, restrictions and conditions
N as they saw proter 10 prescribe In relation
~ theceto. L. vas therefore fundamental
anh Inherent right. recognized and con-
ceded by the constitution 20 belong to
every citizen of ths state 10 vote at all cleo
A lions under who possessed those qualitica-
tons Tor voting. II ia not privilege
nicely hs ono have supposed. but legal
and constitutional right conc ded to lin
hot hn m a. In aTenf I'm him
j, cousti u-ut meGnber OF such d popular form
= OF government Mt md before the formation
OF It,. AS African slavery then had before
that been Introduced Into the state, and
women, even OF the white ra3e. were no
ia considered on u par wiki males of thar raet
In This respect the concession was limited
expressly and exclusively to ever
s& male white citZAn OF the reduis Il
IN age and possessing the other qualica
.g lions prescribed In 1t. And this bainL
the evd9ut meaning and Intent OF the con
stitutlon. that every citizen OF the Stat
IA possessing The qualifications prescribed II
IL should have u legal right to vote at wha
are now cllled all general elections unde
It, Aud while 1t so comedies and recognize
6 his LEGAL right to vote at such election
IN under 1t, 1t prescr!bes among other quaiit
cations that he stall have paid count
"a tax IN manner and form as prescribed II
~ IL. think the true meaning aud intenttol
OF tls constitution requires as we'll a
REASONABLY expects Ilht bucu county lhAe
az had heretofore heeI usually assesse
and levied In the several counties on tn
taXubles, and voters In them would con
ttnue thereafter to be assessed and levie'
upon thcm SO that all the citizens OF It on
tilted TO vote and who had desire to d
80 should have fair and reasonable OF
portunity of paying within the time pre-
scrlbsd, any cOunty tax lawfully assesse
against him and by the payment c
which no could fully quality himse
~ to exercise his electoral franchise and th
IA legal right conferred upon by the constitu
tlou to do 80 on complying with that eond
tion And, therefore, have 40 hesitatio
In Bnying that II the provision OF the s'atul
q 1873 10 Question, or the pri1csice OF IN
fxsy court under 1t Of striking from II
assessment let or LIFTS OF their county wilt
a view TO deprive thereby any person Law
fully asseesed thereon OF hts right TO vol
ut my election IN said county, and &
that the provision OF the statute in questo
and the practice OF tho levy court US Hior'
said, are, In my opinion, both In direct col
travention of the true meaning and Intel
ton of the provisions OF the constitution
and consequently Illegal and void. Tt
right of n taxable and lawfully assess'
and taxed citizen to pay county taxes lay
fully assessed against him, being otherwi
lawfully qualified to vote at any election
order to complete his other lawful quail
cation, for II Is In my opinion, a constlt
tional right within the true meaning al
intention OF tbs constitution, and su
being the case l must be IN favor OF jud
ment for the plaintiff.
1t is altogether likely that the great I
eeasment Inv care, which was decided
the court OF errors and appeals on +
day, will end with this decieion, and W
+ not he carried to the Supreme o urt
the Uuited Sites, ns many of the Repu
lican leaders claimed would be do
while the matter Yas awaiting decisio
In the firs. place there is nothing
the case stated which was previous
agreed upon between counsel In the ca
AND presented 20 the court, and viii
constitutes the official record OF
action, TINT alleges any damage to
plaintiff through being deprived of q
right guaranteed him by the CONSTITUTE
or laws of the Uaitsd States. The e
eral rule Of the Supreme Court OF
United States is that the record must
forth such claim before that court
taks cogn:zancs of case.
Another feature that indicates that
decision of the court will be final is tn
Ch4 court OF errors and appeals havi
lad the case referred to ii by the super
SQUIRT, will report its judgment 10
after court. If an appeal is taken fr
this Judgment, the appeal must be
proved by tn judges o. the court
errors and aypeals before the case cau
carried to the higher court, aud 1t is
likely this approval will be granted
this instance. SO, in all probability,
great tax lay case has been huallT
~ M V..NN k.R