Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1901-05-23
THE INVESTMENT TAX LAW.
Judge Grubb Discusses Section IL of As
of 1s07 and SECTION of Amending lot.


of 1907 and Section of Amending Act.
Judge Grubb, who concurred with
the decision OF the Court In Bano on
Tax law UNCONSTITUTIONAL, made these
additional remarks:
| would say that while concur gen.
orally in tho conclusions renched by
the majority OF the court and also 10
the line OF reasoning aud 10 the
language generally, nevertheless there
Is one consideration essential to the
determination OF this case which, for
want OF time properly to Incorporate
IL in the opinion OF the majority of the
court, will now endenvor to present
as explicitly and concHely as possible.
Whilst it is apparent from the act of
1898 that the Legislature intended that
taxation upon Investments should con-
tiuue. yet " is equally apparent there
from that the Legislature also unques.
tionably intended that 1t should not
continue for the purposes as expressed
In section IL oil the act of 1887 For
the repeating clause of section Of the
anne nding act expressly, ana the sub
stitutionary clause impliedly shows be-
You'd all doubt, that the total taxes to
be collected from Investments should
no longer be distributed exclusively
for Siats and county purposes alone.
Therefore, although the Legislature
intended to amend section L Of the
act of 1897 and to continue taxation of
Investments. yet it clearly did not in
tend to amend it by continuing the
distribution provisions Of said section
upaltere1.
In view Of the express declaration of
said repeating clause, and of The neoes.
sary implication of the substitutionary
clause OF said section Z, IL Is reasona
BILE to presume that, in-the Judgment
of the Legislature of 1893, the dia.ribu-
tion provisions of section IL OF the act
Of 1897, were unequal, unjust, or other
wise Questionable in their operation,
and therefore should not longer con-
tinus in force. Accordingly they de-
termined and provided, as the act Of
1893 disolosas, first for their repeal
and discontinuance, and second for the
continuance of taxation of Investments
for radically different purpose.
To contond therefore that, because
they intended to amend the original
act and continue the taxation OF in
vestments for distinctly different
purposs--as the said municipal purpose
was-therefore the Legislature intended
to continue the very provisions Of SEQ
tion IL of the original act, when by
the provisions OF section 7 of the
amending act they both expressly and
implicitly show the contrary, is both
an erroneous inference and an I'M
warranted assumption. From these
actual circumstances it Ia mapifestly
more reasonable to- presume that the
/ / oni IRt txra .f kau al
the title Of their amending act so as to
include taxation for municipal pur-
poses. IL they had foreseen that other
wise the said distribution clause would
be unconstitutional and void.
In the absolute repeal clause Of said
section OF the act Of 1893, the Legis-
lature expressly repealed and actually
annulled snid provisions OF section ~
of the original act. This part of the
Legislative purpose Was unqti estionably
and Internationally accomplished.
The substitutionary clause providing
for the intended remedy of the faults
of the old section IL failed, but by nc
intent or expectation Of the Legis-
lature. But because this one OF their
two purposes may have failed through
the decision OF this court, that does
not warrant US IN, holding that what
the Legislature clearly intended should
not continue, shall nevertheless be de.
clared to continue, 1t Is simply the
failure of the Legislature to effect ons,
but not the other OF their manifest
purposes, In the opinion of the majority
Of this court.
Whilst we have no evidence of whaj
the Legislature would have done IL /,
had know n that its intended substitu
tionary clause was unconstitutional anc
void, yet We have the inherent testi
mony Of the amending act itself thai
the said provisions of section IL of thu
original act were, 10 the Judgment O.
the Legislature, presumably,s so unequal
unjust or otherwise Objectionable tina
they intended and declared that the,
| Should be Discontinued and no longe
be operative or in FORCE.
Under these circumstances it Il
neither within the proper sphere, O
duty OF the court, either to conjecture
or declare that which is exclusively
matter OF legislative power and discre
tion. Hence, II the General Assembly
having, as we consider, Intentionally
absolutely and Internationally re
pealed section 10 of the act OF 1897
have failed, for any reason, to enact
valid substitute therefore. the remed,
must be sought In Legislative, aud no
judicial action.
|