Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1892-03-10

placed thereon by anybody. Clearly such
a name did not legally appear thereon.
the very name which cannot thus
illegally" appear on the assessment--noth- |
ing is left to the judicial determination of |
any one in order to ascertain them. But |
this cannot apply to names which some |
person or persons, no matter how respon-
by reason of some alleged transgression Of |
the law by the assessor, but which cannot |
be determined except by judicial inquiry.
The presumption of the law is
that the assessor has performed
his duty, and when he returns
his assessment at the time and in the
manner provided by law, the names
makes the contrary appear by pointing out
ascertained names that are forbidden to
appear thereon. 10 drop these involves
only the performance Of a ministerial
duty. But to drop those which the answer
of the majority of the Levy Court declares
they intend TO drop, involves d very differ
ent kind of duty, to wit, quasi judicial
one. That this is true we need only refer
TO paragraph IL of tho answer of ma
jority of the defendants, which states ex-
plicitly and frankly the power claimed by
them and what, if not restrained, they in
tend to do in this regard. II is as follows
I'll. These defendants further answering
say, that since Tuesday, the second day Of
February, instant, snndry reputable and
responsible citizens and taxpayers of New 4
Castle county have openly and publicly
charged that a very large plumber of
names appearing upon some Of the said
assessment lists returned by said assessors
to the said Levy Court on the second day
of February; instant were unlawfully
placed and do not legally appear upon said
assessment lists. and that the said names
so unlawfully placed upon said assessment
lists, include a large number of ficti-
tious names placed upon said lists in
State in that behalf, and also
large number of names of poll
taxables who were not residents of the
hundreds or assessment districts from
which they were respectively returned by
said assessors as assessed, placed upon said
lists in direct violation of the statute of
this State in that behalf, and also large
number of names of poll taxables already
assessed and standing upon the assessment
lists of said hundreds or assessment dis
tricts respectively, and unlawfully placed
upon said assessment lists returned on the
second day. of February. instant, as afore-
said; and also large number Of names of
poll taxables unlawfIlly and fraudulently
| duplicated upon said assessment lists, re-
turned as aforesaid. That they are now
engaged in the examination of said assess
ment lists, SO returned as aforesaid, for the
purpose of ascertaining whether or not
names appearing upon said lists have been
unlawfully placed thereon as aforesaid;
and these, as constituting majority of
the said Levy Court, propose and intend,
should they be satisfied, upon due ex-
| animation, that any names have been so
unlawfully placed upon said assessment
lists. so returned as aforesaid and do not
legally appear thereon, to cause the same
to be stricken from said lists, not by
obliteration, erasement, DETACHMENT or
| mutilation of said lists, or any part thereof,
but by the placing of a distinguishing
mark upon or opposite to such name AS
shall be stricken from said lists
| Here is a claim of a judicial power of
very high and important character. No
mode is prescribed in the law for the exer-
else of this power. They may have evil
| dence or not as they please, they may or
not rest satisfied with the charges and be-
lieving them to be true proceed forthwith,
without hearing or notice, to drop any or
add the names thus inculpated. There is
no instance of amy previous or subsequent
| legislation undertaking to grant such a
power. | need not dwell upon the import
ance and value of the rights II proposes to
deal with. Ii it exists it can make the
lists Of persons qualified to vote what the
majority of the Levy Court pleases; surely
the assertion of power so far reaching as
to be able to overthrow all the security of
the elective franchise should not be made
except upon direct and express authority
of the Legislature. But there is no direct
or express authority anywhere to be found
in the statutes of the state for such mon
strosity of assumption. AT best it is claimed
to rest upon the 'implication" arising
from the use of the word illegally" in the
sixth section of the act of 1881. The argu-
ment is that inasmuch the act says II shall
not be lawful for the Levy Court or any
member thereof to take from the assess
.sxf
any person legally appearing thereon"
therefore the Levy Court may take from
such assessment the name of any person
which they may judge to be there Illegally.
Without pausing to repeat what we have
before said, that such power must rest
upon positive, and direct expression of the
legislative will and not upon implication,
we observe that the implication legally"
clothed the Levy Court with this high
judicial power, il may be well argued that
it clothed with like power amy member
thereof" The language being that it shall
not be lawful for the Levy Court or ANY
member thereof" to take from the assess
ment lists the name of any person legally
appearing thereon. This, Of course, might
be said to be monstrous, but 1t serves TO
show the danger of arguing the existence
of the judicial power from anything ex-
cept the express grant of legislative enact
ment Nosuch power exists in the Levy
Court of New Castle county.
The law of 1873 in regard to the return
by the collectors of delinquent poll taxes
and thcii allowance by the Levy Court
and the requirement that the names of
such delinqncnts be dropped by the Levy
Court from the assessment and that they
should not be put on again by the asses
sorS for the period of II months has been
repealed by the act of May 18th, 1891, and
May 18th, 1901.
The conclusion is therefore reached that
the defendants, the members of the Levy
Court of New Castle county, are not
authorized by law to drop from the assess
ment lists returned to 1t by the several
! assessors Of said county any names APP
} pearng thereon, or to do any of those
things which in the l1th paragraph the
, majority of said court say they propose
} and intend to do. It seems clear, there
, fore, from the best consideration which
have been able to give to the subject i'll the
brief period in which it has been consid-
} cred by me that the clerk of the peace of
New Castle county has special interest in
regard to the duties of his office as i'm
posed by law, in the integrity of the as
sessment lists rs they left the hands of the
assessors.
ut is q mcnstrous proposition" !" said Mr..
Bradford i'll his argument in this cause,
: that the Levy Court clothed with this
power, had not the right for the purpose
J of settling true basis for the adjustment
of the tax rate, to strike from the assess
ment lists required TO be submitted to it
for its revision and correction fictitious
names and other names illegally placed
thereon" How much more monstrous is
the proposition that the Levy Court has
the power to strike from the assessment
lists returned to it or the clerk of the peace
the names of persons on the assessment
, lists so returned when the clerk of the