Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1901-05-23
INVESTMENT TAX LAW
Is DECLARED INVALID
Court In Banc Decides That II
is Unconstitutional.
TITLE IS NOT COMPREHENSIVE
Judge Boyce Dissents From
the Opinion.


ments exists in Delaware. Such in
| effect is the decision OF a majority Of
| the Court in Bauo as announced in
lengthy opinion Thursday afternoon.
Chief Justice Lore and Associate
Judges Spruance, Grub and Pennewill
| Joined in the decision. Associate Judge
| Boyue delivered dissenting opinion.
The Adams tax law has had q pre-
carious existence. Some revenue has
been received from it by State'oity and
| county, but the City Council and the
| Levy Court had counted upon receiving
much more from it than they have re-
| ceived. Failure to get the amount ex-
pected, simply adds to the financial
distress Of city and county. Collectors
Donahoe and Dickey are understood to
have about S15, 600 Ia bank of invest
| ment tax collected in this city, which
| they never turned over because Of the
| litigation. Muney raid to the collectors
under protest will be returned: the rest
| will be kept for county. State and city
purposes.
All FIVE members of the Court in
Bano were present when the opinions
we're read. Chief Justice Lore read
that for the majority OF the court. The
case is that OF the Equitable Guarantee
and Trust Go. ys, John P. Donahoe,
collector of ta1es for the Northern dis.
trict OF the city OF Wilmington. Ii was
an action in assumpait brought TO re-
cover certain taxes assessed for 1898
and 1899 against the plaintiff under the
prov isions of chapter 3Sl, Vol. Xxx Of
the Laws of Delaware, passed May
10th, 1897, entitled IAN act to
Equalize Taxation for State and
County Purposes, and under the pro-
visions of chapter "a. Vol. XXI,
approved May 18th, 1893, entitled can
Act to Amend Chapter 3Sl, Vol. Xxx,
&c., which taxes were paid by the
plaintiff under protest.
The amending act provided that OF
the money collected in Wilmington one
fourth was to be for the State, one.
4 fourth for the county and wo-fourths
for the city. The constitution requires
that mo bill OF joint resolution except
! bills appropriating money for public
} purposes, shall embrace more than ont
!, subject, which shall be expressed in
Il the title. . Under this provision and
Il after considering authorities the courl
held that the subject of taxation fol
municipal purposes is not within the
title OF the act, and that so much o.
the amending act as relates to that
subject is unconstitutional and void.
Considering the effect of the uncon'
!. stitutiopal provisions upon the act al
amended the court said that under
section 4 Of the amending oct Of 1885,
I section IL OF the original act Ia ex
pressly repealed by these words
"Aniend the said chapter by striking
out all of section IL thereof. ThiI
repeal left the original act without
! section ~, and liz the substitute there
for be unconstitutional the origina
! statute has no nsectiun IL and tn,
statute as amended is emasculated Il
that extent FN
In view of the express repeal Of ok
section II, and the implied intention
, not to have it, by euacting new section
,; u, which 10 some OF Its provisions j
/ radically different from the old section
would It not be speculation pure AMI
(; simple to say that the Legislature di,
intend to retain the old section if tn
new section should prove to he un
constitutionalY Would not this b
entering upon the realm of judicia
: legislation, and the substitution OF tn
hypothesis of the Judiciary for the viii
Of the Legislature; with nothing +
guide US as to what the Legislator
"a would actually have done in such
L contingency?
1t is somewhat remarkable that afte
q the most diligent search, no case ha
4; been found in tho books which directl
!. supports such proposition.
10 1t had been claimed, however, tina
4 as the unconstitutional part of ne,
" section II relates only to taxation 70
municipal purposes that the statute
still effective for State aud county Eur
poses, il the unconstitutional parts ar
n capable of separation from the remain
der of the act.
n "a careful examination of the acts,
said the court, Shows that the pre-
y vision for taxation for municipal pun
poses, relates not alone to the paymer
u to the city of the money SO receive
"A and for ite use, but necessarily enter
!. into the assessment, levy and oolleotio
thereof as we'll; indeed it peivadt
IN every material feature of the act q
/. essential parts OF its structure, as
a. method Of raising revenue by taxation
and is therefore incapable of separation
IN inasmuoh as said section IL as amende
N says that of tho moneys which shall
at levied and collected under the pre-
-
~ county, within the limits OF the Gil
II of Wilmington, two-fourths there,
BY shall be for the use of the Mayor an
!, Council of Wilmington. The taii
Of unconstitutionality applies therefor
to the levy and collection of the tax I
we'll as to it's distribution, and ms
a. not he separated from the residue witt
at out destroying the machinery for lev.
ing land collecting taxes for all pu
70. poses 1t may be said. moreover, thi
'st 80 much of new section IL being vol,
as relates to the distribution OF Il
OF tax; the original act as amended b
81 comes imperative, because the ohio
on for which the tax IS levied is elm
:. mated therefrcmi thus leaving I'll
m statute without a purpose; practical
ne nullity. .
on "Our conclusion is, that az sectis
IL Of the original scs was repealed
ed section of the amending aci that
,05 SO much of said new section II as I
ne lates to taxation for municipal pu
az poses ia tho amending act is unoonsI
Il tutional and void, because it is n
x cuvered by the title; and that as the u
a constitutional part cannot be separat
the from the residue, without emasculati
ey the statute, that therefore that the a
Il III Al