Frieszleben v. Shallcross

The questions presented in the arguments of this case by the counsel of the plaintiff are many; but they are all within the scope of .those made by the case stated, and questions reserved thereon, which, in effect, are whether the legislation of

In order to properly comprehend and decide the first question, it is necessary—at least I think it-will be useful—to go back into the political history of the state, or rather of the territory of which it is composed, and ascertain what, down to the time of the Revolutionary War, was the law with regard to the suffrage, or right to vote for public officers at elections. Before doing this, it will be well that a proper understanding should obtain in regard to the participation of men in the government they are under; that is, the power of deciding by ballot, at elections held for that purpose, who shall administer public affairs.

It is not directly denied on behalf of the plaintiff—in fact, it is conceded—that the power to use the ballot is one of those derived from government, or the political society in which the elector resides. At the same time the contention here is the outgrowth of the idea that the primary object of government is universality of electorate. It is, of course, entirely consistent with the hopes of most men, members of a political body, (as one of the states of the Union,) that every person recognized by society as acting sui juris should participate in the ballot; and all such, it is believed, are accorded that privilege. But in this state, as no doubt in most of the others, it is conferred only upon the condition of contributing to the support of the government. The paramount duty of organized society is not to make the use of the ballot “ free ” to every such person, but to provide the means for its own sustenance, which is done by taxation, and, after that, but altogether subordinate to it, however, to secure to the payer of taxes, not the mere taxable, the privilege, or “ right,” as it is generally called, to vote at elections. There is no natural right to vote. It is one conferred by a community at large upon certain of its members, which implies the power and authority to withhold it from others. The whole idea of our original government—that before 1776—was that only those

It is a great mistake to suppose that the first law for a poll-tax, as alleged by plaintiff’s counsel in argument, was the act of 1796. The fact is that before William Penn came to America, to take possession of the territory granted him by Charles II, (March, 1681, ) he promulgated a “ frame ” of government for his province of Pennsylvania, and a Code called “ Laws Agreed upon in England,” which latter defines those who are to be considered as freemen to use the ballot. In the language of the “ frame,” by the second clause or paragraph, the freemen were to choose the provincial council, and, by the fourteenth, the members of the general assembly. There is, however, no definition therein of a “freeman.” The date of this is the 25th of April, (then the second month,) 1682. On the following 5th of May, the latter rescript was passed, which in the second clause defines the term “ freeman,” used in the former and in the first clause of the latter, in the following words: “ Second. That every inhabitant of said province [Pennsylvania] that is or shall be a purchaser of one hundred acres of land, or upwards, his heirs and assigns, and every person who shall have paid his passage, and taken up one hundred acres of land at one penny an acre, and have cultivated ten acres thereof, and every person that hath been a servant or bondsman, and is free by his service, • that shall have taken up fifty acres of land, and cultivated twenty thereof, and every inhabitant, artificer, or other resident in the said province that pays scot and lot to the government, shall be deemed and accounted a freeman of said province; and every such person shall be, and may be, capable of electing, or being elected, representatives of the people in provincial council or general assembly

In the “ act of union ” by which the counties which now form this state were, by the desire of the inhabitants, annexed by Penn (who had become enfeoffed of them by deed of the Duke of York, who succeeded his brother, Charles II., as James II.) to his province of Pennsylvania, those inhabitants were guaranteed to be governed by the same laws, and to enjoy the same privileges, in all respects, as the inhabitants of Pennsylvania, etc. Freemen?in the counties were then the same as freemen in the province; that is, those who paid “scot and lot,” or “customary contribution laid upon all subjects according to their ability,” as it is defined by the lexicographer, Bailey. The date is 7th of December, 1682. Id. 104. On the same date as the “act of union,” Penn, “with the advice and consent of the deputies of the freemen of this province and counties aforesaid,” (the Delaware counties,) enacted what is called “ The Great Laws, or Body of Laws,” by chapter 58 of which it is provided as follows: “ And, that elections may not be corruptly managed, upon which the present and future good of the province so much depends, be it,” etc., “ that all elections of members or representatives of the people and freemen of the province of Pennsylvania, and territories annexed, [now Delaware,] to serve in the assembly thereof, shall be free and voluntary; and that the elector that shall receive any reward or gift, in meat, drink, moneys, or otherwise, shall forfeit his right to elect; and such person as shall give, promise, or bestow any such reward, as aforesaid, to be elected, shall forfeit his election, and be thereby incapable to serve as aforesaid; and the assembly shall be sole judges of the regularity or irregularity of the election of the members thereof.”

In chapter 127 following, it is enacted in these words: “ And,

On the 20th of October, 1691, William and Mary took the .government of the province and territories (the Delaware counties) into their own hands. In this state, on dispossession of Penn, they appointed, as captain general and governor, Benjamin Fletcher; one of the first acts of whose administration was to procure the passage of a law for granting a penny in the pound to the sovereigns, towards the support of the government under him. The fourth clause of the act provides that the tax shall be a charge upon real and personal estate for a year only, and then declares that “ all freemen within this province and territories as have been out of their servitude by the space of six months, and shall not be otherwise rated by this act, nor worth one hundred pounds, shall pay unto the use aforesaid the sum of six shillings per head, with a proviso that our chief proprietary and his late deputies shall not be assessed or otherwise chargeable by virtue of this act.” Id. 221, 222. By section 17 of this act, (the law about counties levies,) it is provided that the grand jury shall present any sum necessary to be raised, either for the paying of any public debt, or other occasion for the public utility of the county, “and the justices [of the

William Penn was restored to the government of his province and territories by William and Mary in the sixth year of their reign, (21st October, 1693,) and appointed his nephew, William Markham, his deputy, who, with the advice and consent of the council and representatives of the province and territories, passed an act or body of laws, the first clause of which, after the preamble defines the term “ freemen,” (that is, those who were to vote for council and assemblymen,) as follows: “ That no inhabitant of this province or territories shall have right of electing or being elected as aforesaid unless they be free denizens of this government, and are of the age of twenty-one years of age or upwards, and have fifty acres of land, ten acres whereof are seated and cleared, or be otherwise worth fifty pounds lawful money of this government, clear estate, and have resident within this government for the space of two years next before such election.” Id., 247. By this law, Penn made the electoral qualification one entirely of property. In the second chapter of the enactment is il An act for raising the rate of one penny per pound, and six shillings per head, upon such as are not otherwise rated thereby, to be employed by the government for the time being as is hereinafter limited and appointed •” the enacting section of which fixes the rate for housekeepers, and then provides that all males within this province and territories of this act who have been free of their servitude by the space of six months, and shall be above the age of 21 years, being worth £72 and upwards, shall be assessed and pay after the rate of 1 penny per pound clear estate as aforesaid, and that such of the said males only as be not worth £72 shall pay six shillings per head. In 1704 the separation between the territories and the province took place; and thereafter they had separate legislative bodies, though under

There is no other act relating to the qualification of elector in the colonial period. In the year 1797 an act of the general assembly of thé state was passed which established a different rule from that then prevailing for assessing the polls of freemen, that is, the personal rate; This fixed it at not more than £1,000 of the then currency, nor less than £200. This is the act erroneously supposed to have first created the poll-tax. Hall’s Dig.1 Laws Del., 390-In the revision of 1852 the phraseology is changed, the highest rate of poll tax being $2,700, the equivalent of £1,000, and the lowest $140, the virtual equivalent of £50, Delaware currency. Such is the law of the state at this day.

From this review of the law which has always prevailed here in regard to the qualification of voters, two things seem to be clear, —that is, that the right to vote was conditional altogether upon the

The law of 7th George II., (1736,) continued, as that fixing the qualification of voters, until the constitution of the state, of 1792, was made; for that of the 20th September, 1776, (1 Laws Del. App., 83,) expressly provides that “ the right of suffrage in the election of members of both houses shall remain as exercised by law at present;” etc. Article 5. In the former the right is thus defined. Article 4, § 1: “ All elections of governor, senators and representatives shall be by ballot; and, in such elections, every

By the law in force prior to the year 1843, upon the allowance by the levy court to a collector, in its settlement with him at th e March session, of a party upon his duplicate as a delinquent, the practice was to drop his name from the assessment list; and it remained off until the next general assessment of persons and personal property, when it was restored. This was in virtue of the rule that a condition once shown to exist is presumed to continue until the contrary be established. If the statute had not provided that there should be a general assessment of persons and personal property, (quoad ante,) the name would have remained off the list until the delinquent had himself applied to have it restored, which would not, of course, have been- done without some proof that the condition no longer existed; and, in accordance with this presumption, a collector was allowed two years to collect the taxes on his duplicate, (copy of the assessment list, with calculation of tax,) and no more. Then the tax was treated as extinguished entirely. Hall, Dig., 380. But it was discovered that collectors, in their zeal to promote the interest of the political party to which they owed their appointment, were in the habit, after the expiry of the two years, of allowing the taxes more than two years old of delinquents on their own sides, or on any other side, provided they would vote the ticket of the collector’s party, to be paid, with a view of qualifying them to vote. As the collector’s receipt was evidence of right to vote, there was no gainsaying it, without resort to the records of the levy court, which was impracticable. To prevent this fraud upon the election law, which contemplated, not the payment of taxes allowed as delinquent, and thus extinguished in fact, but payment of existing rates, the legislature, at the session of 1843, passed an act entitled “ An act to amend the election laws

The preambles to the first and second sections show the motive and purpose of the legislature; the latter being that above ascribed to it. As corroborative of the allegation above made, that the payment of existing rates by a party offering to vote was contemplated, it is only necessary to refer back to the statute already cited from Hall’s Dig., 573, where, near the close of the fourth section, will be found this language in relation to the returns of the assessors of the assessments, correction of them by the court, etc.: “ And, in the year in which a general rate of persons and valuation of per

The act of 1843 stood unchallenged upon the statute-book until the year 1847, when a supplement to it was passed, the second section of which provides as follow: “ That it shall be the duty of each of the assessors of this state, in the annual assessments for their respective hundreds, according to the law of this state, to assess all such persons as may have been returned and allowed as delinquents at any session of the levy court preceding the period fixed by the act to which this is a supplement, for the completion of his assessment: provided, such persons reside at the time in the hundred for which he is assessor. And any resolution or order of the levy court, in either of the counties of this state, adverse to the provisions of this act, be, and the same is hereby, declared null and void; and any practice authorizing the said assessors to omit the assessment of such delinquents until the period of the assessment of persons and personal property next following the time when such persons shall have been allowed as delinquents be, and the same is hereby, directed to be discontinued.” Volume 10, p. 171. Though not doing so in terms, this act virtually repealed that portion of the original act of 1843 which provided differently with respect to delinquents; but there is no suggestion or hint in it that the repealed feature of the latter act was in any sense hostile to the constitutional provisions concerning the privilege of suffrage. It therefore should be treated rather in the light of a revenue provision. At the session of 1851 an act was passed entitled “ An act to extend the rights and privileges of poor white taxables within the state.” It is in the lollowing words, (Act 10, vol. 518:) “ Whereas, the present law of this state, requiring the names of delinquent taxables to be stricken from the assessment lists, does, in substance, treat poverty as a crime amounting to disfranchisement ; and whereas, it may, and frequently does, happen that, from sickness or othermisfortune, poor persons become temporarily unableto pay thepublie taxes assessed against them, who are

I have already pointed out that in this state there are periodic general assessments of persons and personal property, as well as of real estate. Now they are, by modification of former law, to be made every four years; and now, as heretofore, annual assessments of persons and personal property, in addition to the general assessment, are to be made, for the purpose of including new-comers, persons who have arrived at age since the prior assessment, and personal property since acquired, and to correct omissions, etc. The “ Act for the valuation of property ” (Rev. Code, 84) provides for the periodic assessment of property and persons, but it was modified by chapter 394 of volume 13 so as to reduce the time for the

By the tenth section of the chapter next succeeding, (chapter 12, of “ Collectors,”) each collector must, on the first Tuesday of March next succeeding the date of his warrant, render to the levy ■court a true account of all taxes it was his duty to collect, of all payments made, and of all delinquents; and by section 1 of chapter 372 of volume 14 of the Laws, (Rev. Code, 90,) it is made the collector’s duty, within 30 days after he has received his duplicate, to give public notice by advertisements, posted in 10 or more of the most public places of his territory, stating his place of business or residence, and his readiness to receive taxes; and it is also made his duty, in the month of January in each year, again to give public notice, as aforesaid, of at least 10 days, said notice to state the times and places at which he will attend to receive unpaid taxes. It is then made the duty of the levy court, upon proof by the collector’s affidavit filed in the office of the clerk of the peace, setting forth that he gave the notice required, and that, in accordance with the last required notice, he did attend at the time and place designated, and there remained for the space of 5 hours each day, for .the period of at least 3 days, for the purpose of collecting the taxes aforesaid, to allow him as delinquencies the uncollected taxes; and then declares that the names of the delinquents shall be dropped from the assessment list by the levy court, and not be placed thereon again for the period of 12 months from the date of the allowance. The section is made applicable to persons liable to pay poll-tax alone; for the reason that those owning real property can always be made to pay by sale of their property, taxes being a prior lien thereon. It is true there is the ultimate remedy by im

I think I have now given—in brief in most cases, but in some verbatim et literatim—the provisions of law now in force in relation to the assessment and collection of taxes, and the allowance of delinquents, and the requirement when this is to be done. It will now tie useful to compare the old with the present legislation, with a view of seeing what is the difference between them,—whether that difference does deprive the citizen of the right or privilege of suffrage; it being contended by the plaintiff’s counsel, not only that the new legislation was designed to disfranchise a certain class of voters, but that such is the necessary effect. Leaving out of view the question of design, which has no place in this discussion, the point to be decided is, does the legislation of 1873 necessarily impair the voting right of the citizen ? It will be well, in this inquiry, to look at the state of things existing at the time it was passed, as contrasted with that it displaced.

Before emancipation of slaves, and the adoption of the fifteenth amendment to the constitution of the United States, voting in Delaware was confined to white males of over 21 years, with the exceptions before given; and so steady and constant was our population everywhere, except in Wilmington, that such persons as were selected to be assessors were usually acquainted personally with nearly all the voting class. It was for this reason, no doubt, that the law made no requirement of notice by the assessors that they were about to proceed, or would proceed, to make the assessment. At the February session of the levy court, the assessments were returnable ; and, by the practice of the court and the law, they were liable to correction by the levy court, in order to perfect them. But the March term was an appeal term from assessments, at which any person aggrieved at not being assessed at all, or who, or whose

In the political campaign of 1846 when the dominant party lost their candidate for governor, a fierce assault was made upon it, and chiefly because of the act of 1843, and the manner in which that law dealt with delinquents. The legislature, however, was not lost; and accordingly, at the session following the election, the act of 1847 was passed, which was repealed, as has been stated, by that

The party which passed the act of 1851 lost its ascendency in the legislature at the election of 1852, but retained its majority in the senate. Of course, there was no prospect of repealing that which had been so great a desideratum with it,—on whose side the great body of the delinquents was. At the election of 1854, a totally new party came into power, and by what was then a large majority. Both branches of the legislature were of its members, —the house entirely, and two-thirds of the senate. It was a very strong party, and had no need to concern itself with legislation about delinquents. A great mistake of legislation made at that session so shattered its ranks that the political power of the state passed away from it utterly, and the party itself practically disbanded. Such result restored to power the makers of the legislation of 1851, which, suiting the dominant party perfectly, remained in force until it was repealed by that of 1873. By the latter, the provision contained in the law of 1843 for dropping the name of a delinquent from the list, was re-enacted; and by the assessment act, (14 Laws Del., c. 371, Rev. Code, p. 82,) passed at the same session, (on the day preceding the delinquent act,) or 14 Laws Del., c. 372, Rev. Code, p. 90, assessors were forbidden to assess a delinquent “ until after the expiration of twelve months ” from the time allowance as delinquent was made by the levy court. Why was the act of 1843 practically revived, as to dropping delinquents from the assessment list ? That question has been answered before by what was said with respect to the necessity claimed for the legislation of the 9th of February, 1873. An immense number of

The plaintiff’s counsel contend that the object of the legislation of 1873 was the disfranchisement of voters, and that its effect has been to deny the ballot to citizens who should exercise it. In order to make their point good, they have given the court an example to show how a voter is by the law deprived of his right to vote. But the example is impossible, except upon an assumption that the party having the right to vote is defeated, or deprived of it, in spite of his efforts to enjoy it. This is pure assumption; the fact being that the law cannot operate without the co-operation or consent of the complaining party. If he desire to vote at elections, he has nothing to do but see to it that his name is kept upon the

Treating the suffrage as a valuable political right, to be exercised conscientiously and intelligently, and for the public, rather than the welfare of a party, it would have been much better for the state if that feature of the act of 1843 which provided for dropping from the assessment lists those returned delinquent had been re-enacted in the act of 1873; for it is not true that delinquency is the effect of poverty. There" are none so poor that they cannot pay their poll-taxes, which for them is “ scot and lot;” less than two days’ hire out of the wages of the common laborer being sufficient for that purpose. Labor everywhere, and always among us, is in demand. There is no hardship upon any in requiring him to pay his taxes, which in this state are county taxes alone; there being no general state tax of any kind. Men who live by their labor, or without work, who have no property, are assessed for a poll so low as to be almost insignificant. It is not poverty that creates delinquency, but a want of appreciation of the moral and political nature of the franchise, which privilege is prized by many white men, and the mass of the colored, simply because it enables them to get money by the sale of it. The notorious practice of purchasing votes by all parties here, as well as in other states, attests the truth of this assertion, and justifies the opinion expressed before about the re-enactment of the feature referred to in the act of 1843. That act was not repealed, as has been said, because it

Taxes being necessary to the support of government, a state has the right to adopt any measures short of actual disfranchisement to compel their payment. No one doubts the validity of the provision in our statute for imprisonment of non-paying taxables. Would the law be unconstitutional because the collector might choose to take the ultimate course,—upon the eve of an election to shut up in jail non-paying citizens to whom it applied? Why would it not be ? Simply because imprisonment is an extreme remedy for non-payment of liabilities, as old as the law. Then, if such a provision be valid, why is it not that for dropping from the assessment list for 12 months valid ? Such an imprisonment as mentioned would effectually cut off, pro hao vice, the suffrage right, whereas the dropping from the list would, under the circumstances pointed out by the plaintiff’s counsel, do nothing more; and in that case the dropping could not be otherwise taken than as done by the voter’s consent, who had almost a whole year in which to pay his poll-tax, and thus save himself from delinquency. If the operation of the legislation of 1873 was, proprio vigore, to disfranchise a voter, by preventing him from paying his taxes as others are obliged to do, there would be force in the argument of the plaintiff’s counsel; but, as it does not so act, and never at all except as a consequence of his own neglect, which many others in like condition of circumstances in life do not suffer themselves to be guilty of, it cannot be charged to the law that he loses temporarily the privilege of voting, but only to his own inattention to his opportunity to retain it. He has simply omitted a duty he owed to himself, and to the public,—if such persons can be supposed to be under any obligation to the body politic,—and deserves all the consequences resulting from his indifference to his interest. Without it can be shown, which it was not, and cannot be, (and that fact seemed to embarrass the learned counsel in their elaborate argu

It seems not necessary to say more than this in regard to the objection to the legislation on the ground of its alleged hostility to the fourteenth and fifteenth amendments of the constitution of the United States,—that in this state every man, rich or poor, black or white, has the equal protection of the laws at all times, whether he be a legal voter or not; the. ability to vote being no more necessary to secure that protection in his case than in that of women and minors, who, and whose property, are as much under the shield of the law’s protection as is that of any man, great or small. A delinquent taxable is as much safeguarded in his personal rights as is he who owns houses and land. The notion that the right to exercise the suffrage is, in Delaware, necessary for the protection of one’s person or property, is purely fanciful, and without any reality of reason. The fifteenth amendment was meant to secure the right to vote to colored people, and has done it everywhere. Their delinquency generally as tax-payers, or failure to become assessed, is not the fault of the statute, and cannot properly be charged against it. To hold the assessment act void as in conflict with that amendment would be a strain of interpretation which would seem to be repugnant to plain common sense.

[concurring.) This case is before us upon questions reserved and directed to be heard in this court upon a case stated in an action on the case in the superior court in and for New Castle county, for the recovery of damages resulting to the plaintiff by reason of his having been deprived by the defendants, when acting as members of the levy court of said county, of all opportunity of paying a county tax for the year 1886, and thereby qualifying himself to vote at the general election in that year. It is shown by

In this connection, it is important to note that the plaintiff does not complain that he was deprived at any time of the opportunity to pay his tax for 1885, either before or after he was returned and allowed as a delinquent as to said tax, and thereby of the right to qualify himself as an elector at said election. He rests his case, as the record shows, exclusively upon his exclusion from the assessment list for 1888, and from all opportunity to pay a tax for that particular year. His suit is instituted for damages for his non-assessment for 1886, by reason of the “dropping” of the plaintiff from the assessment list of 1885, and his exclusion from the assessment list of 1886 by the defendants pursuant to the express requirements of the provisions of section 1, c. 372, and of section 9, c. 371, vol. 14, aforesaid. It is not instituted because of the “ extinguishment ” of his tax for 1885 pursuant to the express requirements of the provisions of section 18, c. 12, Amend. Code, (enacted prior to said acts of 1873,) whereby he was prevented from paying said tax at any time prior to the said election of 1886. Therefore, all objections urged at the argument against the validity of said provisions of the acts of 1873 on the ground that the plaintiff was not permitted to pay his tax for 1885 at any time up to the said election, and was thereby precluded from obtaining a receipt therefor, as the evidence of his being qualified to vote thereat, are not pertinent to the present inquiry. Consequently,

The first of these questions raises the following principal inquiries : First. Are said controverted provisions of the acts of 1873, in their primary purpose and design, a regulation of the assessment and collection of county taxes, or a regulation of the qualification of electors ? Second. If the former, are they a legitimate and appropriate exercise of the taxing power; that is to say, in accord with the inherent nature, essential characteristics, and true meaning and purpose of taxation ? Third. If they be such legitimate exercise of the taxing power by the general assembly, are said provisions of the acts of 1873 nevertheless unconstitutional and void because they have caused the plaintiff to be excluded from the assessment list for 1886, and, consequently, precluded him from being qualified to vote at the general election in that year. These-inquiries necessitate the consideration of the said acts of 1873, construed in connection with the pre-existing statutes of the state in force at the time of their enactment, and relating to the apportionment, assessment, and collection of taxes. They also require the true interpretation of the constitution of this state in respect to the scope of the legislative authority in the exercise of the taxing

In the exercise of the power of taxation, the general assembly has designated and empowered certain instrumentalities or agencies for the assessment and collection of county taxes. These are the levy courts and the assessors and collectors in the several counties. Their duties are prescribed, and their powers conferred, by statutory provisions which, in the legislative judgment, are deemed necessary and appropriate. The system of county taxation existing and in operation at the time of the enactment of the said acts of 1873, under pre-existing statutory provisions then in force, was, substantially, as follows: In each countv the assessors were required to assess, in the first instance, and the levy court to correct and complete the assessment of all real and personal property not exempted by law, and all polls of every freeman above the age of 21. A general assessment was to be made once in every four years, and a supplementary assessment annually. The assessor in each hundred or assessment district was required to complete his assessment by the 1st day of January in every year, and, after posting the same, and giving public notice as prescribed by law, to sit for the purpose of correcting any errors therein, or for the purpose of assessing persons omitted. Thereupon he must return his assessment to the levy court on the first Tuesday of February. It was made the duty of the levy court to sit as a court of appeal on the first Tuesday of March in every year, and such other days as should be necessary, to determine appeals against the assessments returned by the assessors, and to add to and correct the same, and to complete said assessments by the last day of March. Thereupon the levy court was required to ascertain the amount necessary to be raised by taxation for the year, and to apportion and lay the taxes

Under the legislation prior to the enactments of 1873, provision was made expressly requiring the dropping of the names of those who had died or had removed from the state in any year from the assessment lists of the next ensuing year. But no such provision was made for the dropping also of the names of those who had been found by the collector to be incapable of paying any tax, or to be fictitious and non-existent, and therefore incapable of dying or removing from the state. Humanum est errare. In the nature of things, therefore, under said legislation, many such names would inevitably creep into and accumulate upon the assessment lists from year to year, for obvious reasons, in the administration, through human agencies, of a system which, though primarily designed for the raising of public revenue, yet also, incidentally, furnished the means for qualifying as voters,—especially for closely-contested elections,—by the payment of a county tax as prescribed by the constitution of the state. But, unless the assessment of property and polls be accurate and reliable, it must necessarily follow that the tax-rate based upon it for raising the amount of revenue needed in any year will be inadequate, and a deficit in the county treasury will consequently ensue.

The clear, explicit, unambiguous provisions of the acts of 1873, throughout their entire extent and scope, disclose an unmistakable intention, and a pervading purpose, to supply the deficiencies of previous legislation, and secure a more accurate assessment of the property and polls in the several counties, in order to have a more exact basis for fixing an adequate rate of taxation in every year. Accordingly, the act passed April 9, 1873, and entitled “ An act in relation to the duties of assessors, and of the levy courts, in the several counties of this state,” being 14 Del. Laws, c. 371, makes express, explicit, and very careful provision for the accomplishment

It is clear, beyond question, that the object of this act was, through very specific provisions, enforced by positive penalties, to secure an accurate assessment, by excluding therefrom, in the first instance, so far as the assessors could detect them, and do so, all fictitious names, as well as the names of those who were disqualified for assessment for want of the prescribed age or residence. But it was manifest that, to make the assessment accurate, for the purpose of preventing a needless deficit, the lists must be purged, not only of these fictitious names which had escaped the vigilance of the assessors, and could subsequently be discovered by the collectors, but also of the names of all those whose tax the collector should find could not be effectually collected, even by means of legal process; in short, of those who should be ascertained to be unproductive as taxables. An act auxiliary and supplementary to said chapter 371 was therefore needful. Accordingly, on the day next, after the enactment of said chapter 371, the general assembly passed an act entitled “ An act in relation to the collection of taxes

Prior to the enactment of chapter 372, none but the names of delinquents who were dead or had removed from the state were permitted by law to be struck from the assessment list. All others were required to be retained thereon, and to be entered oh the collector’s duplicate for the next ensuing year. By the requirements of the foregoing provision, of said chapter, therefore, in addition to to the names of the dead, and of the removed from the state, the names of the fictitious which have been erroneously assessed by the assessors or the levy court, as well as of those whose taxes shall be found uncollectible by legal process, shall, when returned as delinquents by the collector, be dropped from the assessment, .and shall not be placed thereon for the next ensuing year. The collector is thus made an efficient auxiliary in purging the lists of unproductive taxables, and securing an accurate assessment; thus preventing a deficit for the next ensuing year. Through the operation of sec

In addition to the foregoing, there are other important provisions of the acts of 1873. They define with greater precision the duties of the county revenue officials, and prescribe specifically what shall be a performance and full discharge of duty in certain respects. In so doing, they relieve public functionaries from embarrassing uncertainty as to their duty, and from harassing anxieties as to their liability, which are unjust to the officer, and detrimental to the public service. At the same time, they afford the individual citizen due notice, and ample opportunity to become assessed and to pay his tax, if he exercise reasonable diligence, and take care to see that the obligations and the penalties which the law imposes are enforced against those officials who presume to violate those provisions which the legislature has enacted for the vindication of his rights, and the promotion of the public welfare.

Further analysis of these acts is needless. They speak for themselves. There is no ambiguity in their language, and no room for doubt as to their design. Everywhere throughout them there is apparent, in the natural meaning of their phraseology, and in the plain import of their provisions, a dominating purpose so to amend the revenue system as to provide for the assessment and collection of county taxes with greater exactness and regularity, and to define the duties and liabilities of the revenue officials with greater precision and certainty. This purpose is indicated in their titles, is

We now come to the second general inquiry, whether or not, if the said provisions be considered as primarily a revenue regulation, they are a legitimate exercise of the true function of taxation, that is to say, in accord with its essential characteristics and purpose, and not in conflict with those limitations upon it which have been held by courts of high authority elsewhere to inhere in the very nature of the power of taxation itself, and to be equally im

Taxes are defined to be, to use the language of Judge Cooley, “ burdens or charges imposed by the legislative power upon persons or property to raise money for public purposes. The power to (ax rests upon necessity, and is inherent in every sovereignty. The legislature of every free state will possess it under the general grant of legislative power, whether particularly specified in the constitution among the powers to be exercised by it or not.” Cooley, Const. Lim., 479. Chief Justice Marshall has said of this power: “ The power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised on the objects to which it is applicable to the utmost extent to which the government may choose to carry it. * * * The people of a state, therefore, give to their government a right of taxing themselves and their property; and, as the exigencies of government cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislator, and on the influence of the constituents over their representative, to guard them against its abuse.” McCullough v. Maryland, 4 Wheat., 428 . Judge Cooley continues: “ Having thus indicated the extent of the taxing power, it is necessary to add that certain elements are essential in all taxation, and that it will not follow, as of course, because the power is so vast, that everything which may be done under pretense of its exercise will leave the citizen without redress, even though there be no conflict with express constitutional inhibitions. Everything that may be done under the name of taxation is not necessarily a tax; and it may happen that an oppressive burden imposed by the government, when it comes to be carefully scrutinized, will prove, instead of a tax, to be an unlawful confiscation of property, unwarranted by any principle

The foregoing extracts from Judge Cooley’s valuable treatise on Constitutional Limitations, present clearly, comprehensively, and succinctly the leading principles illustrating the nature and extent of the power of taxation, and the limitations upon its exercise inherent in the nature thereof, which have been approved by courts and text-writers of acknowledged authority. Without being understood either to define or to declare to what extent, in all cases, said principles shall, in all respects, be applicable and authoritative in this state, it is nevertheless proper to consider whether the said provisions which are complained of in this case are not, so far as they affect the plaintiff, in accord, instead of in conflict, with said principles. By section 1, art. 2, of the constitution of Delaware, the legislative power of this state is vested in the general assembly. There being no express grant of the power of taxation, it passed to the general assembly, under the' general grant of legislative power, as an attribute of sovereignty essential to the existence of the government, and indispensable to the promotion of 'the general welfare. Excepting the provisions of section 14, art. 2, of the constitution of this state, respecting the mode of framing and passing bills for the raising of revenue, there is no express limitation therein upon the exercise by the legislature of the taxing power. Unless, therefore, some clearly implied restriction be found, inherent in the nature of taxation itself, or in some express constitutional provision, the statutory provisions in question must be sustained as a valid exercise of the taxing power. It has not been shown that they were enacted for other than a public purpose. Nor does it appear anywhere in the case before us that they impose any fiscal burdens upon the plaintiff, and are for that reason not uniform and equal. As a matter of fact, instead of imposing taxation upon him for the year 1886, they demonstrate that he is incapable of

But, even if it were otherwise, and the non-delinquents, by operation of the said provisions, could rightfully complain that thereby the non-assessment of the plaintiff because delinquent imposed his share of taxation upon them without due process of law, yet the plaintiff cannot in this case avail himself of their cause of action. He has sued in the case before us for damages, because, by operation of the said provisions, no tax was imposed upon him in 1886, and not because he is wronged by an unequal burden of taxation. He cannot successfully urge that which is not an injury to himself as a ground for invalidating these statutory provisions. He does not complain on that ground, nor is he in a situation to so complain as being one who has been obliged to payan unequal tax. It is well settled that the courts will never pronounce a statute unconstitutional because it may impair the right of others not complaining. A statute is assumed to be valid until some one complains whose right it invades. Antoni v. Wright, 22 Grat., 857 ; Cooley, Const. Lim., 164. As was said by this court, upon this very point, in Coyle v. Commissioners, (1884, not yet published:) “ It will be time enough to consider this question, and the rights of the parties that may be affected thereby, when it shall be presented for our consideration by parties capable of making it, and having an interest in its determination. No such parties are before us.” As heretofore stated, the primary purpose of the enactment of said provisions of the acts of 1873 was to secure a more reliable assess

The delinquent cannot complain that he has had no “ day in court,” and no opportunity to disprove the fact conclusively established by the return. In contemplation of law, he has received notice to appear, through the notices given by the collector at the precise time specified for the giving thereof in said section 1 of chapter 372. Thereby he has his opportunity to show his capacity as a taxable for the next ensuing year by appearing in accordance with said notices, and paying his tax to the collector. Not having done so, he is legally concluded by the determination and the return of the collector. Hagar v. Reclamation Dist., 111 U. S., 701 -715; 4 Sup. Ct. Rep., 663 . In the present instance the plaintiff admits, as the record discloses, that he was duly assessed as a poll taxable, and that he had legal notice and opportu

In this connection, some observations may be made which seem both appropriate and material to the present inquiry, as being illustrative of the serious and not trivial importance as well as of the real necessity of these legislative provisions for ascertaining what portion of the citizens belong to the productive class, and what portion to the unproductive class, of poll taxables, with a view to securing an accurate assessment, and thus prevent, through an exact and business-like administration of the county revenue system, an annually recurring deficit. As hereinbefore shown, the collection law of 1873 was enacted to be auxiliary to the assessment law of that year, for the purpose of excluding from the assessment lists in any year, through the inquiry and return of the collector, all fictitious names, and also the names of all others who would be unproductive taxables in such year, which had been placed upon the assessment list in the preceding year through the error, or otherwise, of the assessor or levy court. It was argued by counsel for plaintiff that thousands of poll taxables are annually returned as delinquents, but that this is done by the collectors arbitrarily, and without just reason or necessity. The fact is true as stated, but the

The consideration of the third general inquiry is now reached. It is contended in behalf of the plaintiff that the provisions of the acts of 1873, of which he complains, by causing his exclusion from the assessment lists for 1886, thereby, operated to deprive him of the opportunity to pay a county poll-tax, as his qualification for the enjoyment of the right of an'elector of this state at the general election in that year, and therefore that these provisions are unconstitutional and void, as being violative of sec. 1, art. 4, and of sec. 3, art. 1, of the constitution of this state. Section 1, art. 4, provides that a citizen of the age of 22 years or upwards, (and otherwise qualified,) “ and having, within two years next before the election, paid a county tax, which shall have been assessed at least six months before the election, shall enjoy the right of an elector.” Section 3 of article

If examined according to these approved rules of construction, ■can it be said that any restriction upon the taxing power, as exercised by the legislature in the present instance, appears by clear implication from the said provisions of article 4 relating.to the •qualifications of electors ? The language of said article, “ having, within two years next before the election, paid a county tax, which shall have been assessed at least six months before the election,” •clearly contemplates the necessity of a preceding assessment. The right to qualify for the suffrage, therefore, is by the constitution itself made dependent upon the action of the legislature in the exercise of the taxing power. Unless the legislature has authority to prescribe an appropriate and necessary mode of ascertaining who will be unproductive subjects of taxation in any year, and to exclude such from assessment in that year, it cannot successfully raise, with certainty and regularity, adequate revenue for support of the .government, and thus fulfill the purpose for which it was vested with the taxing power; for, if required to assess those who have been ascertained by such mode to be unproductive as taxables, an annual deficit must inevitably result, and the purpose of the taxing power be thus frustrated. To hold, therefore, that the legislature is imperatively required to assess a citizen so found to be unproductive is to assert that the existence of government is of subordinate importance to the privilege of suffrage. Such a proposition is untenable, as it is absurd. Without organized government, there •can be neither qualification for, or exercise of, the suffrage, nor protection of life, liberty, or property, nor promotion of the general welfare. Without adequate revenue, raised with regularity and ■certainty, efficient and stable government cannot successfully be maintained. It necessarily follows that the authority of the legis-.

The language of the above quoted provision of article 4 should be construed, if possible, so as to harmonize with this implication of the general grant of the taxing power, and yet be operative according to its true meaning and purpose. This may be accomplished by construing said provision to mean that those citizens only shall be qualified for assessment in any particular year who have first been ascertained, by an appropriate mode prescribed by the legislature, to be capable of paying a county tax for said year. In other words, it means that capacity to pay a county tax is the test of fitness to be assessed, and, as the framers of said provision manifestly designed, of the capacity essential to the proper exercise of the elective franchise. That this was the view of those who framed said provision of article 4 admits of no doubt, as will be found by recourse to the debates in the constitutional convention of 183Í, which adopted it. In that convention, the proposition was made to abolish the prerequisite of paying a tax as a qualification for voting. In the course of the very able discussion of this question, conducted by the most eminent constitutional lawyers of the state, the principle upon which that prerequisite is based was very forcibly and plainly stated. In reference to this subject, Judge Hall said : “ I do not regard the tax qualification as making an invidious distinction between the poor and the rich. If I did, I should vote against it. But I look upon the assessment of a tax as the

The plaintiff’s exclusion from assessment for the year 1886 as an unproductive taxable, pursuant to said enactments as such regulations, was in accord with the true meaning and purpose of the constitution that he, and all those who have been similarly ascertained to be unproductive taxables for a particular year, shall not be qualified for assessment for such year. . Such citizens, in constitutional contemplation, are not permitted, under the said provision of article 4, to qualify as electors by the paying of a tax for such year, and hence cannot belong to the “ voting class.” For this reason, the said provisions of the acts of 1873 are not inhibited by the injunction of section 3 of article 1, that “all elections shall be free and equal.” This injunction does not apply to those who have neither a right to vote, nor to qualify as electors, under the constitution of this state, which establishes, exclusively, the qualifications of those entitled to vote therein. In reality, however, said provisions, in their operation, are equal, and do not discriminate between any persons belonging to the same class of citizens who are in like condition, situation, or circumstances. The constitution itself, in

The conclusion, therefore, seems unavoidable that the said provisions of the acts of 1873, considered with reference to the case of the plaintiff as presented by the record, are not unconstitutional and void, but the contrary, and that it should be so certified to the court below. The objections to their constitutional validity, with the numerous authorities in support thereof, which were presented by the counsel for the plaintiff so earnestly and so ably, have been carefully examined, and deliberately considered, as was due to the eminent counsel on both sides, and demanded by the gravity of the subject. But they have failed to show that the opposition between said provisions and the constitution is such that, as Chief Justice Marshall observed in Fletcher v. Peck, 6 Cranch, 128 , "the judge feels a strong and clear conviction of their incompatibility with

Saulsbury, Ch., and Paynter, J., concurred. Houston, J., dissented. (Opinion not written.)