Evening journal., 1890-01-25

"This case is before us upon questions
reserved and directed TO be heard in this
court upon a case stated, In an action on
the case in the Superior Court in and for
New Castle county, for the recovery Of
damages resulting to the plaintiff by
reason Of his having been deprived by the
defendants of the opportunity Of paying a
county tax for the year 1886, and thereby
qualifying himself to vote at the general
election In that year.
1T Is shown by the record and adj
mltted that the plaintiff was otherwise
qualified by residence, age, etc, TO enjoy
the right of an elector in this state; that
he was duly assessed for poll tax for
the year 1885 IN the north collection
district Of Wilmington hundred, that the
collector Of taxes, having given the
notices prescribed by law and attended
for the reception oftaxes AS required by
law, duly returned the plaintiff to the
Levy Court in March, 1886, as delin-
quent, the plaintiff not having paid his
poll tax TO him as such collector,
1.-THE defendants justify their action
in dropping aud striking the name OF the
plaintiff from said assessment list and In
failing to lay tax on him for the year
1886, under the provision of the act
entitled An act In relation to the collec
ton Of taxes in this State, passed April
9Th 1873, and also under section o Of the act
entitled AN act In relation to the duties
Of assessors and of the levy courts Ia the
several counties Of this State, passed
April 9th 1878, and defendants also claim
that they cannot be held personally liable
In damages for their action as members
of levy court.
''In this connection II is important to
note that the plaintiff does not complain
that he was depriv we'd, at any time, OF the
opportunity to pay his tax for 1885. either
before or after be was returned or al.
lowed as delinquent as 20 said tax, and
thereby as an elector at said election
Then follows q synopsis Of the law ex.
| listing previous TO 1873, and lengthy
discussion and review of the act Of 1878
with It's bearing on the case.
1T has not beeu shown that they were
enacted for other than public purpose
Nor does IL appear anywhere in the case
before us that said provisions impose any
fiscal burdens upon the plaintiff himself,
and are, for that reason, not uniform and
equal. He cannot successfully urge that
which is not an injury to himself but to
another, as a ground for invalidsting
statutory provisions. IL is well settled
that the courts will not pronounce
statute unconstitutional because IL may
impair the rights OF others not complain
ing. A statute Is assumed to be valid
until some one complains whose right It
invndes
cas- heretofore stated, the primary
purpose of the enactment Of said pro-
visions of the acts of 1873 was to secure
more reliable assessment by excluding
therefrom all unproductive taxables in
order 10 prevent a constantly recurring
annual deficit. -.
aA'The duties of theassessors and collec-
tors and also Of the Levy Court undey
the law are plainly set forth.
THE delinquent cannot complain that
ne has no day in court and no opportun.
ity to disprove the fact conclusivelv es.
tablished by the return. In contempla.
ton Of law lac has received notice to ap.
pear through the notice given BY the col.
lector at the precise times specified for
the giving thereof In said section / OF
chapter 3i2. Thereby he has his oppor-
tunity to show his capacity as a taxable
for the next ensuing year, by appearing
in accordance with said notices and pay
ing his tax to the collector Not having
done so, he is legally concluded by the
determination and return Of the collector
In the present instance the plaintiff
admits that he had not, within the two
years next before the gen aral election in
that year paid any tax, and does not
allege or show that he was able or willing
to pay any tax, either for 1885 or 1886
He admits that the collector was in at.
tendance for the reception of his tax.
conformably to his notice given as pre-
scribed by the act, but he does not aliege
or show that the collector ever refused to
receive Il, or deprived him Of a free and
ample opportunity TO pay it. Nor does he
allege or show that the collector had not
fully and in good faith discharged his Off
cial duty and exhausted all lawful and
eifectual means in an earnest effort to coll
lect his tax before he returned him as a
delinquent and unproductlve taxable. So
that the verify OF the statutory presump.
ton established by the collectors return
is nowhere impeached by the record.
''As heretofore shown. the collection
law of 1872 was enacted to be auxiliary
to the assessment law of that year, for
the purpose of excluding from the assess
ment lists in any year, through the in
quiry and return Of the collector all
fictitious names and also the names Of all
others who would be unproductive taxa
blt9 III sum 4this WHICH nhu Dtbn placed
upon the assessment list in the proceed
ing year through the error, or otherwise,
Of the assessor or levy court
ut was agreed by counsel for the plain
tiff that thousands Of poll taxabes are
annually returned as delinquents, but
that this is done by the collectors arbi-
trarily and without just reason or neces-
sity. The fact is true as stated but the
deduction therefrom was unwarranted
The fact that thousands Of poll taxables
are annually returned as delinquents BY
the collectors is not shown by the record
in the case before us, but IL is shown by
the official records Of the county revenue
officers. Careful examination of these
shows that, in addition to those who sub
sequently die OF remove from the state
there have been placed upon the assess
ment lists in a single year in Whining
ton alone, not only hundreds but thous-
ands of names of persons who never ex-
listed, and also great numbers Of those
whose taxes could not be collected even
by legal process.
"The plaintiffs contention, therefore.
directly raises the question: Has the
General Assembly, according to the true
meaning and intent of the constitution
of this State. authority to exclude from
assessment, In any particular year, a
citizen who has been ascertainsd by a
mode appropriate and essential to the
effectual exercise Of the taxing power, TO
be, in the legislative judgment, an I'M
productive taxable for that Year,