Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1901-06-20
Road BED CASE IN cnllBI
-
question OF Right of City to Tax yyilmin
ton A Sortbor,, r,.ttn...s r,.,--.,

n9oIu argument IN the case OF Eugene
~. Sayers, assessor and collector for
the southern district OF Wilmington
Vs. the Wilmington & Northern Kali
road 20. which involves The right of
the CITY to tax the roadbed of railroads.
All the law judges were on the bench,
namely, Chief Justice Lore and Asso.
oiate Judges Spruance, Grubb. Pen
newill and Bcyce. Before hearing argu-
ment. Chief Justice Lore asked counsel
u tney would agree to acdept the de-
cisiou OF the court as final. He ex-
planned that should the court agree,
'and an appeal be taken to the Supreme
Court. 1t would be question as to the
constitution Of that body. Chancellor
Nicholson would sit, and for two asso-
ciates IL might be necessary to have
two Judges ad Item appointed. Then
OF these three, two might render n,
decieion oVerrulng the decision of the
i've law judges. Such situation would
entail great expense upon the State. 1t
would be an anomalous thing for two
men to oyerrule five, and as Judge
Spruance suggested one of the men
might be appointed for that very pur-
pose.
Levi O. Bird of counsel for tho de-
fondant, spoke of possible desire to
carry the case to the Supreme Court Uf
the United States. which could be done
only through the Supreme Court of the
State. Then Chief Justice Lore sug-
gested having the argument before the
Superior Court.
After conference among attorneys
interested, however, Mr.. Bird an
nounoed that it Was agreed to have
the Court in Bano hear the argument
and to waive the right Of appeal.
The case wns opened by Robert G..
Hnrmnn, representing Tax Collector
Sayers, who said that Mr.. Ssyers had
assessed the roadbed of the Whining
ton a Northern Railroad Co., as real
estate; the company claims that the
assessment was illegal, because Of an
exemption clause under % special act Of
1857, and the plaintiff holds that law
TO have been repealed by consti-
tutional provision bearing upon taxa
ton.
The plaintiff claims:
THAT section of article Of the
Constitution subjects all real estate to
taxation.
THAT section l of article 8 of the
| Constitution is self executing because
when 1t went into effect, June 4th,
1897, there already was in existence a
law that was general tax law; tax
law that was uniform upon the same
olas5 OF subjects, and tax law THAT
was operative throughout the territorial
limits Of the authority ievying the tax
that Is operative throughout the city
Of Wilmington, and levied by the
Mayor and Council OF Wilmington. In
other words, that when said ConHti.
tuition went into effect there was
already in foroe and existence, tax
law that in all respects met and com.
| piled with all the constitutional re.
quirements, so that said constitutional
provision being self-executing, put in
| operation, at once, the above genera
| tax law, and under and by virtue OF itt
| provision. the roadbed Of the defendant
company became, and was, subject tc
taxation.
THAT the said section / of article
| OF the said Constitution expressly maket
| provision as to the exemption o.
| property; and a mere glance at thii
exemption feature of this constitutions
provision shows clearly: That 1t, itself
exempts nothing whatever, and tina
the exemption of property is left en-
tirsly with the Legislature, and ii
prospective only.
Therefore, as the Legislature hal
not, since the Constitution went int
effect, exempted The said roadhed o
the said DESCENDANT company from
taxation, 1t is subject to taxation unde
the first part of the said Constitutions
provision above explained.
Section l of article Is as follows
stAll taxes shall be uniform upon tn,
same class OF subjects within the ter
ritoria limits of the authority levyinI
the tax, aud shall be levied and col
lected under general laws, but tn
General Assembly may by general laws
exempt from, taxation such property as
in the opinion of the General AEsembl.
will best promote the public welfare. ;
After arguing that the exemption
provision was prospective Only, Mr.
Hartman made the contention that tn
rondbed OF a railroad is real estate
ana as such is subIeci to taxation.
The railroad company is Represented
by Levi q. Bird, Andrew =. Sanborl
and Charles NJ. Curtis. From thei
statement OF the case it appears tina
the amount OF taxes assessed on tn
property is s1,6St.62. !.
| lin their brief the defendant
attorneys hold that the rondbed Is no
subject to municipal taxation, "'for tn
reason that tho roadbed of all railroad
, within the State of Delaware is OK
pressly exempted from such taxation
] by the act of March 3lst, 1887"
1.-The grounds for the conclusion tina
the said act of March 31st, 1887, Is l
force and constitutional are;
"First-,rhat the Constitution Q
1897 was not self-executing and there
fore ali laws, then In existence in re
latjon to taxation upon railroads, re
main in full force until the powe
given to the General Assembly !
section /, article 8, of the Const
tuition, be exercised by subsequer
, General Assemblies, as to taxation.
ssSecond- the act of Marc
:31st, 1887, exempting the roadbed
railroads in the State Of Delaware frol
county aud municipal taxation, is keI
, in force by the express terms of tt
] Constitution of 1881, and the'schedu
thereto.
Delaware, having unlimited pow,
over the sub jeot OF taxation, under Ii
/ Constitution then in force, enacted Il
/ law of March 31st, 1887, This Law
' representing the sovereign will of Il
neopIe. must continue in force
4 originally adopted, until repealed
4 modified by Subsequent act of II
4 Legislature; or by the adoption Of
! nav Constitution, which repeats q
4 former laws OF taxation relating to raj
= roads. Such laws, unless expressly pr
= vided for 10 the Constitution, and NJ
4 reneaied in express language by Il