Evening journal., 1901-05-17
COURT DEGREES THAT ADAMS
TAX Law Is UNCONSTITUTIONAL
Judge BOyce Files Supplemental Dissenting Opinion in
Which He Holds That Substitution Of Section n
Act Does Not Repeal Section Il

that the subject OF taxation for municipal
purposes is not within the title of the act
in question which is confined to State and
county purposes. and so much Of the
amending act as relates to that subject Is
therefore unconstitutional and void
our next inquiry must be to what ex-
tent the act as amended is affected by
these unconstitutional provisions 1t is
claimed by the defendant that II 50 much
of section Of the act Of 1898 which en-
bodies the new section p as relating to
municipal taxation should be declared
void, that section p Of the original act
of 1897 would stand and still leave the
statute effective.
Under all the rules Of construction. the
striking out or repeal. and the inserting
of the substituted section, are not so In
separately connected in terms. in this
case, that II one falls the other must fall;
but are separable each being a distinct
substantive. and complete thing in itself
when separated. Are they then made in
separable by legislative intent?
BY coupling together In one section OF
the amending act. the express repeal of
old section l2 and the substitute new sec
tion y, the legislative intent that they
are inseparable Is no more manifest, than
If in one section of the amending act old
section 12 had been repealed, and in some
other remote section, or In an entirely
independent act, a substitute for old sec
ton l. had been provided. without saying
in lieu thereof or any other express words
OF substitution; yet the substitution in
that case would be just as complete by
Implication, as II declared in express
terms In such case It would hardly be
contended that the distinct repeating sec
ton would be void, because the remote
section or independent act actually pro-
viding a substitute was void. The rule
and reasoning would be the same in each
case.
| II the Legislature had said strike out
section u, and insert in lieu thereof az
follows"-and then had not filled up the
following or intended section. but had
left it blank. it could hardly be said that
IL did not intend to strike out. when 1t
has expressly said so, because IT had pro-
vded nothing to take its place. the blank
substitute being a nullity. Yet this is in
effect the case before us; where an un-
constitutional substitute, is nothing. just
as much as a blank substitute is nothing.
I W NhnelQtl llldl lnt l4tElcl4AAAt uAQ III
tend TO strike out. for It has said so ex-
pressly. True it has not provided a sub
stitute. but that is an omission only as
to the substitute. and does not affect the
validity OF the striking out
In view Of the express repeal OF old
section p. and the implied intention not
TO have It, by enacdng new section y,
which I'm some of its provisions IS radi-
lcally different from the old section; would
It not be speculation pure and simple to
say that the Legislature did intend to re-
tain the old section If the new section
should prove to be unconstitutional?
Would not this be entering upon the
realm Of judicial legislation. and the sub
stitution of the hypothesis Of the judici-
airy for the win OF the Legislature; with
nothing to guide us as to what the Legis-
lature would actually have done in such
a contingency?
It is somewhat remarkable that after
the most diligent search, no case has
been found In the books which directly
supports such a proposition.
! 1t IS claimed, further, however, that as
the unconstitutional part of new section
j relates only to taxation for municipal
7 purposes that the act as amended is still
effective for State and city purposes
= II the unconstitutional parts are capable
Of separation from the remainder of the
act; that is. in the language Of the de-
fendant. If THAT which is left is com
plete in itself, sensible, and capable o.
e being executed" OF course II this be SO
under well settled rules OF construction
r the law still would be valid.
A careful examination OF the act az
amended shows that the provision fol
taxation for municipal purposes, relates
not alone to the payment to the city o
: the money so received as and for it's use
but necessarily enters into the assess
e ment, levy and collection thereof as well
= indeed It pervades every material featur
= Of the act as essential parts of its struc
J. ture as a method of raising revenue b.
= taxation. and is therefore incapable o
e separation; inasmuch as said section y a
amended says. THAT of the moneys whic
y shall be levied and collected under tn
provisions Of this act, in New Cast
y county within the limits OF the city q
~ Wilmington two-fourths hereof shall b
~ for the us of the mayor and Council {
t. Wilmington" The faint of unconstitr
tlonality applies therefore 20 the levy an
ie collection of the tax as well as to its dis
~ tribution, and may not be separated froi
ie the residue without destroying the mi
ls chinery for ievying and collecting tax'
for all purposes.
It may be said, moreover, that so muc
of new section y being void, as relat
to the distribution of the tax; the origin
vi statute as amended becomes inoperativ
o' because the object for which the tax
levied is eliminated therefrom; thus lea
as ing the statute without a purpose; pra
ID tcally a nullity.
ne Our conclusion is, that as section II
OF the original act was repealed by secti
ice of the amending act; that as so mu
ia OF said new section y as relates to tax
ton for municipal purposes I'm the amen
I'VE ing act is unconstitutional and void,
pal cause It is not covered by the title; a
'pe that as the unconstitutional part cam
ur- be separated from the residue, wltho
ina emasculating the statute, that therefS
co the act as amended is unconstitutional a