Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1892-03-10
FULL TEXT OF THE OPINION
The Chancellor's Reasons in
Support of His Order.
NO RIGHT TO STRIKE OFF NAMES
The Levy Court Is Not a
judicial Body.
During Ills Legal Experience of Fifty
Years, the Chancellor Says He Never
Before Heard of the Course the Levy
Court Sought to Pursue--The Opinion in
Full.

WhhSht tOtpElaHuVN ilObi itONtl, uI)-
peared in THE GAZETTE last week:
WILLIAM p. BIeos oour,o,
RICHARD @ BuoKIsaHAM, ct az chanoery.
Ihavc stated above all the material por-
tions of the bill of complaint and the two
answers thereto respectively so that there
may be no mistake or uncertainty in re-
spect to the reasons governing me in the
conclusion to which | have arrived or in
the decision may make.
II the recital or analysis of the provision
pf the bill and answers have been unduly
ong or apparently prolix, it is better to
vfr in these respects than to be wanting in
due and careful consideration in respect
o the matters submitted for my considera-
ion.
Weare all liable to err, however desirous
we may be TO be right. Heis fortunate who
sfter the most careful study and considera-
ton, is assuredly right and has a con-
seriousness of duty carefully and con-
scientiously performed ! would that the
duty of deciding the questions involved in
the controversy arising in this case could
have been imposed upon others. and not
desire to avoid the discharge of any duty
imposed upon me by reason of my official
position, but II is not unreasonable to have
wished that the performance of this duty
might have devolved upon others abler
and more competent to perform ii than
myself But it was said, in the course of
the argument, and ii may be true, that no
tribunal is existing in the State for the
decision of the matters in controversy
other than that of the court of chancery.
l, therefore, assume the duties of my
position without fear, favor, reward or
the hope thereof.
The community constituting the inhabi-
tants of the county of New Castle may
have allowed itself to have been wrought
upto state of excitement and interest,
unreasonable and unnecessary, but we all
must indulge the hope that such excite
ment, If it exists, will pass away, and the
public mind and public feeling become
calm and serene when time has given an
opportunity for rational consideration and
calm reflection.
! shall not notice that portion Of the bill
OF complaint which states that William =.
Biggs is citizen and taxable duly assessed,
OF the county of New Castle, because ii
does not appear if he is such citizen and
taxable that he has been taxed beyond his
proportion of the taxes to which other
citizens and taxables are subject or liable
hut the complainant shows that he is
clerk of the peace Of the said county and
fsiys that the functions, duties and respon-
sibilities of his said office are about to be
impaired, invaded and oyerthrown by the
Threatened and impending action of the
said Levy Court Commissioners in unlaw-
fully altering and reducing the number of
names upon the assessment list so that it
would be morally and legally unjust and
improper for the said clerk of the peace to
join in the certification of the said lists
when names have been so omitted there
from,. and the said clerk of the peace
would also become personally liable
to heavy legal pccuniary penal
ties for certifying and furnishing
duplicate lists to the county ofli-
GERS for collection from which names
are on the assessment lists when returned
BY the assessors had been stricken off by
the said action of the said Levy Court.
Now il is admitted by both answers filed
in this cause that the said William r. Biggs
is clerk of the peace of New Castle county.
and clerk of the Levy Court Of said
county. There is no plea to the jurisdic
ton Of this court 10 hear and determine
the matters in controversy in this cause
for the allegation contained in 18th and
concluding paragraph of answer of the
majority of the Levy Court, that these de-
PENDANTS are advised and believe that the
said complainant, William p. Riggs has
no right to bring or maintain this suit as
citizen, taxable and resident of New
Castle county, and as clerk of the peace
for said county or in any of said capacities.
either in his own behalf, or in behalf of
other taxables, citizens of said county,
does not raise the question of jurisdiction
in this court to hear and determine the
matters i'll controversy in this cause But
only whether the complainant in any or
either of the capacities in which he sues has
right to bring and maintain this suit.
Now have already said that shall not
consider the question whether as u citizen
and taxable of New Castle county he is
liable TO the payment of a tax because his
liability in this respect is the same as that
of other taXables citizens of said county
On this ground, therefore, the complainant
would have no right to maintain his suit
for relief common alike to himself and all
other ritizpn1 and IA aVnhlpq nf Gnih ttt
But 1t is a very different question whether
the complainant being clerk of the peace
of New Castle county and as such being
clerk of the Levy Court of such county
has right to maintain this suit, and has
the right to invoke the equitable interposi
ton of this court.
If the functions duties and responsible
ties of his office of clerk of the peace are
aboss 10 be- impaired invaded or over
thrown by the threatened and impending
action of the said Levy Court commits
sioners in unlawfully altering and rcducins
the number of names upon the said assess
ment lists so that il would be morally ant
legally unjust and improper for the sale
clerk of the peace to join in the certifica
ton of the said lists when names hav,
been so omitted therefrnm. And if tht
said clerk of the peace would also becom
liable to he2yy pecnniary penalties fo
certifying and furnishing duplicate lists /,
the county officers of collection from whicl
names which were on the assessment list
when returned by the assessors had beer
stricken or removed by the said action
the said Levy Court, very different ques
ton arises from that under the question
whether as a citizen and taxable he i
liable or not liable for his proportional,
share of taxes levied upon all other citi
zens and ttxables for the support of th
government OF New Castle county.
Considereti in this view, the complainant
has right TO bring AZ maintain his sui
in this court, il the allegations of his bill
in this respect are true. The grounds o
contention on the part of the defendants
and which were urged at the hearing n
great length and with much ability ans
'vigor, are:
First. That the power given to the Lev,
Court in sections and - of chapter s. o
the Revised Statutes to ''correct and add t
the assessments returned" and to max
''additions to and connections of the assess
ment list the names of amy that they ma.
Judge unlawfully thereon"
Second. That the inhibition contained il
eth section of the act of 1873 as amende,
by act of April Sth. 1881, Vol. XVI, Laws o
Delaware, page 306 to wit: That il shal
NOT be lawful for the Levy Court in eithe
OF the counties of this State or any mem
her thereof To take from the assessmen
returned to the said Levy Court by an.
assessor, the name of any person legal
appearing thereon by implication give
TO the Levy Court the same power an
1 Jurisdiction. :,
A careful examination and consideration