Evening journal., 1922-02-17
contlnued from Flrst Page

d AdN Dtphi lIntnl may ItVuit
Provided. that in case OF women re-
ceiving mothers pensions, inmates
OF almshouses and other charitable
institutions, persons receiving out
side support from Trustees OF the
Poor. and persons who. because OF
age, infirmity or mental disability,
are wholly dependent for support,
no return need be made under this
I Act, and no tax shall be paid
In Section ] Of the same Article,
( the word taxable" is defined TO be,
"a natural person twenty-one years
OF age or over who is a citizen or
resident OF the state OF Delaware, or
minor with a net income or one
thousand dollars. or more who Is a
citizen or resident Of the State Of
Delaware"
In Article g. the word taxable" is
defined to mean. ANY individual,
partnership or corporation subject to
taxes imposed by Articles ] and II
of this Act"
BY Section 10 Of Article 3, It is pro
vided as follow:
Upon fling the annual return
provided for under Articles 1. IL and
I III OF this Act. the taxable shall pay
Go the Tax Department a fling fee
Z Of Three Dollars. The Tax depart
ment shall not receive and file re-
turn until said filing fee is paid, and
/ the offer TO file such return without
/ paying such fee shall not be con
strued to be a compliance with the
requirement to fle return and
shall not relieve the taxable from the
penalties provided for failure to file
such return"
Paragraph Z. Section 2s OF Article
/ 3. provides that ANY taxable who
shall refuse or neglect to make the
return required to be made under
Article OF this Act within thirty
days after the last day for making
such return, or who shall refuse or
neglect to pay the filing fee required
/ TO be paid upon the filing Of such
return, shall be deemed guilty Of a
misd demeanor. etc"
The relator in this case, a taxable
under the Act sought to make his
income tax return without paying
the filing fee. and the Tax Depart
ment declined to accept the same,
whereupon the relator filed petit
ton asking that a writ OF peremp-
tory mandamus be Issued compelling
/ the Tax Department to receive and
nle his return without the payment
OF the filing fee. The Tax, Depart
ment. respondent, has moved that
the REALTORS petition be dismissed
because Il does not appear from any
thing alleged therein that the re-
lator is legally entitled to the relief
sought.
The relator claims that he should
not be compelled to pay the films
fee, because the act in so far as II
requires the payment OF such fee
upon making his income tax return
is unconstitutional and void.
The constitutionality OF this act Il
attacked on several grounds, but be
fore stating them specifically, thu
relator makes the following conten
} tion:
The so-called "nling fee" OF three
dollars provided 10 be paid by a
taxable when fling his return is In
the nature OF a tax. and the method
OF raising II and not the purpose or
object for which il is to be expend-
ed. determines the character OF the
tax.
II must be conceded. we think,
that the "hiing fee" provided for in
the act is a tax. or, as the relator
contends. in the nature OF a tax
This is not seriously controverted by
the State.
II is none the less a tax because
called by some name. II comes
clearly within the definition OF a tax
found in Ruling Case Law on Tax
ation,g ., Pars. 1S and IA. and cases
/ cited. viz: "A tax IS an enforced
/ contribution OF money or otker
property. assessed in accordance
with some reasonable rule OF appor-
tionment by authority OF the sover-
eign state on persons or property
within its jurisdiction for the pur
pose OF defraying the public ex'
pense."
II the primary purpose OF the Leg
stature in imposing such a charg'
is revenue. It is tax. 26 r. c. L
Taxation" Par. IT; State Y
Ashbrook, 4s J.. r. A. 265. 5s S. w
627. 154 Mo. S75: Royal v. Virginia
116 y. s. 572, 20 L. Ed. 1856.
Courts will examine the Act ant
ascertain the purpose OF the pro
g vision by its probable or naturan
: anticipated effect. state v. Ashbrook
i, (supra.); Robinson V. Norfolk. 60
, e. 1852; Is l.. r. A. On. 81 294
II the so-called fee or regulation
= Note-36 Am. Rep. 522.
is obviously In excess OF the cost o
4 inspection. and service 10 be rem
Il dered. and the like. It is a tax.
p charge OF fixed amount bearing n
z relation 20 the cost Of a service rem
dered such as inspection, and IN
T. like. and payable into the genera
treasury OF the state. is tax. Smit
II " Alabama, 124 n. S. 465, 81 l.. ES
u sos: Postal Tel Co. v. Taylor. 10
L. S. s4. as l.. Ed. S42: Georgi
l. Packing Co. v. Macon. so Fed. ~
II 20 L. r. A. 775; Munlenbrick v. ]
Branch Convis. ~ n. ]. l.. s64, 3
Ss Am. Rep. SIS and notes; Cowley O
It Taxation. 3rd Ed. 1141: Pittsbure
J. r. CO. " state, 40 Okio st. 1ss; z
es n. E. 4s6, is l.. r. A. $50. 26 R.
- L. Taxation" par. 6.
The specific grounds on which u
w "hling fee" part OF the act is claim,
'e' 10 be unconstitutional are the 10
lowing:
.n /. The legislature can provide Z
.ss the raising OF money from the eli
US zens OF the State for revenue pu
poses. only for a public purpose, al