The Wilmington daily Republican. (Wilmington, Del.) 1890-1902, 1901-05-17

had no day in court. no opportunity to
rcvjew the assessment, or to take an ap-
peal. -
JUDGE GRUBR CONCURS.
Judge Grubb delivered concurring
! opinion. lie said that whilst it was APP
nnrcnt for the act of 1898 that the egis-
iature intended that taxation upon in
ycstments should continue. yet it Is
equally apparent thcrcfrom that the
legislature also unquestionably intended
that it should not continue for the
purposes as expressed In section Il OF
the act of 1897 For the repeating clause
Of section 7 of the amending act ex-
prcssly and the substitutionary clause
implicitly show beyond all doubt that
the total taxes to be collected from m
vcstments should no longer he distributed
exclusively for State and county purposes
alone.
Therefore although tho Legislature in
tended to amend section IL of the act of
1897 md to continue taxation OF invest
mcnts vet it clearly did not intend to
amend it by continuing said section un-
altered. Whilst we have no evidence of
what the legislature would have done
if il had known that its intended sub
stitutionnry clause was unconstitutional
and v,id, yet we have the inherent testi-
mony of the amending act itself that the
said provisions of section u of the orin-
nal act were in the Judgment of the
legislature presumably SO unequal, I'M
Just and otherwise objectionable that
they intended and declared that they
should be discontinued and no longer be
operative or in force.
Under these circumstances it is neither
within the proper sphere or duty of the
court either to con jecture or declare that
which is exclusively matter of legsla-
tive power and discretion. Hence if the
General Assembly having as we consider
Intentionally. absolutely and uncondi-
tionaly repealed section - of the act Of
1897, have failed for any reason to enact
a valid substitute therefore. the remedy
must be sought in legislative and not
judicial action.
JUDGE BOYCE DISSENTS.
Judge Boyce read dissenting opinion.
| He stated that he fully concurred in the
| opinion delivered by Judge Lore in so
| far as it holds in effect that the title Of
| the act to amend chapter 3S1, vol. 20 laws
of Delaware, entitled AN act to eQualize
| taxation for State and county purposes
| is not sufficiently comprehensive, it be-
| ing too restrictive to embrace that part
of section of the salu act which at
| tcmpts to amend section IL of the original
| act by providing that thrrc-fourths of the
moneys collected in " ilmington shall be
| for the use Of the mayor AMI council Of
Wilmington aud that therefore the at
| tempted amendment is unconstitutional.
He says he is compelled with great re-
luctance to differ with the opinion in
maintaining that section - of the o,
| ginal act was expressly repealed by Sec
| ton Z of the amendatory act; and that
said original act Is by reason there
| of imperative and void.
Upon the question whether section
Of the amendatory act repeats section
| 12 Of the original act the substitutionary
| portion of the former section being void,
| cannot escape the conviction that the
Legislature did not intend by attempting
to amend the said original act to de-
feat the main purpose and design thereof
| and thereby to annul the very act itself.
Tie Salu ne nelu lnat section was
single in its purpose Of substitution only
and that it was not separable into two
or more parts. each pertaining to sepa-
rate and distinct objects; and therefore.
1t can only be considered as an inseper-
able whole. The said section in its scope
and purpose signifies no more than IL the
legislature had sought to amend said
section IL in this form: Be it enacted
that said chapter be and the same hereby
amended by substituting for section u
there Of the following; and then had