Evening journal., 1901-03-26
Law
MAY BIZ ILLEGAL
AttOrney-Gencral Ward In
formed Governor 50 day
CITY WILL LOSE $4,000
City Council lIad Hoped That Measure
ROnld be Approved by Chief
Executive

Attorney-General Ward forwarded
to Governor HUM this morning his
|opinion as to the constitutionality of
the act allowing incorporated cities and
towns TO retain a certain portion of
the liquor license taxes collected there
in, which became a law on appeals to-
the chairs in the HOUSES of the Gen
oral Assembly. The opinion is clear I'M
its language, setting out that the con-
stitutiOnality of the measure is in
doubt. and that the chief extcutiveI
will best serve public interest by re-
fusing to- approve the bill This, of
course, indicates that the governor will
veto the bill, and the city of Will
mngton therefore lose the $21 900 it'll
had hope to derive from the operation
OF the law. The opinion of Mr.. Ward
is:
Wilmington, Del, March %, 1901.
To His Excellency, John Hum, Gov
ernor, Dover, Delaware
My Dear Sir: In response to your re-
quest of the 22d instant, that l ex-
anime an act of the last General As
sembly, entitled AN act to amend
chapter 1lS, volume IA, Laws of Dela-I
ware, by providing that cns-third of
the moneys arising from licenses forl
the sale OF Intoxicating liquors shall
be paid to the incorporated cities and
towns in which the licensed places areI
located and that l give you my view
as to your approval thereof, | have toI
say:
understand that upon the unani-
nous opinion of the three paid coun-
sci Tor the General Assembly, theI
speakers of each House ruled that I'M
each of said houses the bill failed toI
receive a constitutional majority oil
the members thereof, and that the bill
passed each of said houses Of the Cen
erai Assembly upon appeals from the
decisions OF the speakers and by a ma
jority vote.
l shall take no space in attempting
to frame a definite opinion as to the
LEGALITY OF the vote by which this bill
was passed. The fact that there isl
such a question, and, under the circum-
stances, presumably a serious question,
seems TO me a conclusive fact, cOnsid-
ering the necessary consequences there
of hereafter mentioned, to determined
your action upon the question of the
approval Of the bill. Under the cir
Icumstances, a law suit, in which the
State would be a party, must inevitably
follow your approval OF the bill.
IL 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 Stale treasurer to
prevent the diversion of the funds
which would otherwise be payable into
the State treasury, into the treasures
or cities and incorporated towns in
tended to be benefited by the act Not
only in behalf of the said incorporated
Icities and town, but also in behalf of
the State of Delaware notices would
be served upon each of the clerks of
the peace in the three counties OF THE
State, warning him to pay over the
moneys in question, to either of the re-
Ispective claimants therefor, at his
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 Delaware, but also under the
proposed amendment thereto now un-
der discussion. 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 a law of the State Ol
not Upon such guess OF the said clerk.
of the peace, or of their counsel, wOulC
depend the liability of the said clerk.
of the peace, possibly 20 account foi
large sums of money which they may
have wrongfully paid over.
We're these inconveniences to thes'
lpublic officers, and such litigation, tn
lonly matters involved in the approva
lof the bill, public interest might no
lsuifer sufficiently because thereof 4
lOverbalance the present benefit 10 tn
Inhabitants OF the city of Wilmington
land other incorporated towns by tn
increased revenue given to them undo
he bill inquestion.
Section 3 OF the bill provides as FOL
lows:
"rhe clerk Of the peace in each 10
the three counties, within seven day
after the receipt of the moneys arisin
from the license fees, fines and forfeit
| lures pertaining to incorporated cite
} land towns mentioned in section 4
l this act. shall pay over, by cgtiie
check. TO the city or town treasurers
> the incorporated cities or towns en-
titled thereto. all the above-mentione
moneys which shall come into hi
hands for the use of the said incOI
porated cities or towns under the pre-
visions of this act A failure by tn
clerk of the peace of any county I
pay said moneys as aforesaid shall
, a misdemeanor. forfeiting ipso fact
his Office, and shall also be a breao
lof his official bond.
y Under the conditions heTeinbefol
loutlined the clerks of the peace
Z each of the three counties could NJ
safely pay over the moneys mentions
in the BILL TO the incorporated citi
! and towns referred TO in the bill. witt
= in seven days after the receipt Of q
e moneys in question from license fee
etc. And yet the bill provides that
I IFatI I,s~ 1,n a1a Of he