The Wilmington daily Republican., 1901-03-27
LICENSE LAW
OPINION.

Attorney General Ward yesterday for.
| warded to Governor Hum his opinion
us to the constitutionality of the act al
lowing Incorporated cities and towns to
retain Il certain portion of the liquor
license taxes collected therein, which be-
came Il law on appeals to the chairs in
the houses of the General Assembly.
1t indicates that the governor will
veto the bill, and the city Of Whining
ton therefore lose the S2l, 900 it had hope
to derive from the operation of the law.
The opinion is:
Wilmington, Del, March 25, 1901.
To His ENcellcncy, John Hum, Gov.
ernor, Dover, Delaware.
Mr.. Dear Sir: In response to your re-
quest Of the I'D instant, that l examine
an act of the last General Assembly, en-
titled AN act to amend chapter AIS,
volume IA, Laws Of Delaware, by pro-
wiling that one-third of the moneys aris-
ing from licenses for the sale Of intox-
icatmg liquors shall be paid To the incor-
poratcd cities and towns in which the Ii
rcnScd places are located" and that l
give you my view as to your approval
thereof, | have to say:
| understand that upon the unani-
nous opinion Of the three paid coun-
sci for the General Assembly, the
speakers of each ttouse ruled that in
each of said houses the bill failed to
receive constitutional majority of the
, members thereof, and that the bill passed
each ol said HOUSES of the General AS
scmby upon appeals from the decisions
of the speakers and by a majority vote.
| shall take no space in attempting
to frame II definite opinion rs to the
legality of the vote by which this bill
was passed. The fact that there is
such Il question, and, under the circum-
stances, presumably serious question,
seems to me Il conclusive fact, consider
ing the necessary consequences thereof
hereafter mentioned, to determine your
action upon the question of the approval
of the bill. Under the circumstances,
IA law suit, in which the State would be
a party, must inevitably follow your ap-
prova of the bill.
If there be a question as to whether
the statute in question has become a
law by receiving the necessary major
ity in the Legislature, it would clearly
be the duty of the State treasurer to
prevent the diversion of the funds. which
would otherwise be payable into the
State treasury, into the trasuries OF
cities and incorporated towns intending
to be benefited by the act. Not only in
behalf of the said incorporated cities
and towns, but also in behalf of the
State of Delaware, notices would he
served upon each of the clerks of the
peace in the three counties of the State,
warning them to pay over the moneys
in question. to either Of the respective
claimants thereof, at their peril. Such
clerks Of the peace are each of them
Liable to heavy penalties in default of
their accounting for the license money
coming into their hands, not only under
chapter AIS, volume IA, Laws of Della
ware. but also under the proposed
amendment thereto now under discus
sion. Such clerks of the peace would be
compelled to determine, far in advance
of any possible decision. upon the legality
of the said proposed amendment,
whether such proposed amendment was
Il law Of the State or not. Upon such
guess of the said clerks of the peace
or Of their counsel. would depend the
liability Of the said clerks of the peace
possibly TO account for large sums Of
money which they may have wrongfully
paid over.
We're these inconvcnicnccs TO these
public officers. and such litigation, the
only matters involved in the approval
Of the bill, public interest might not
suffer sufficiently because thereof to
ovrrhaance the present hcn"iit to the
inhabitants Of the city of Wilmington
and other incorporated towns by the
| increased revenue given TO them under
| the hill in question.
Section of the bill provides as fol
| lows:
THE clerk Of the peace in each of the
| three counties, within seven days after
| the receipt of the moneys arising from
| the license fees, hn"" AMI forfcitnrcs
| pertaining TO incorporated cities and
towns mentioned in section of this act,
| shall pay over, by certified check, to the
! city or town trrnSurrrS Of tn" inr0rpor-
atrd cities or towns entitled thereto, all
the above mentioned moneys which shall
come into his hands for the use of the
said incorporated cities or towns under
| the provisions of this act. A failure by
| the clerk Of the peace of any county
| to pay said moneys as aforesaid shall
! he Il miSdcm"anOr, forfeiting ipSO facto
| his office. and shall also be Il breach
| of his official bond"
| Under til" conditions hcrcinbcforc out.
| lined. the clerks Of the peace in each Of
tn" three counties could not safely pay
over the moneys mentioned in the bill
to the Incorporated cities and towns
referred TO in the bill. within seven days
after The receipt Of the moneys in QucS
ti"n from license fees. etc. And yet The
bill provides that "a failure by the cl"rR
Of the peace of any county to pay said
moneys as aforesaid shall be miSdc
| m"nu0r. fOrictinE il'SU facto his Oill""
| and shall also he n breach of his OfIicia
hond.' That is TO say, seven days after
tho receipt hy the several clerks Of tho
peace in the three counties of any
moneys payable TO incorporated cities
and towns under the provisions Of this
act. aud upon the failure of such clcrkS
of the peace to pay over such moneys
To said cities and towns. the Office o
each of the said clerks of The peace
would be ipso factO vacated. If sucf
offices were thcrcupOn rcfllcd by new
appointments Of the governor. they
take the responsibility on themselves o
gucssion the opinion Of the court OF las
resort of this State upon the legality o.
the statute in question, and their con
scuucnt refusal TO pay over the moneys
in question at their peril for seven days
would again ipSo facto cause vacancies
in the Offices of each Of said clerks o.
the peace. These results would follow
| umlil lhc tinNl determination of the nnns