Equitable Guarantee & Trust Co. v. Donahoe

Court in Banc.

Lore, C. J.:

This is an action of assumpsit, brought by the i Equitable Guarantee and Trust Company, the plaintiff, to recover from John P. Donahoe, Collector of Taxes for the Northern Dis- \ trict of the City of Wilmington, the defendant, certain taxes assessed for the years 1898 and 1899 against the plaintiff, under the pro- ) visions of Chapter 381, Volume 20, Laws of Delaware, passed May 29, 1897, entitled “An Act to Equalize Taxation for State and County Purposes,” and under the provisions of Chapter 24, Volume 21, Laws of Delaware, approved May 25, 1898, entitled “ An Act to Amend Chapter 381, Volume 82, of the Laws of Delaware, entitled ‘An Act to Equalize Taxation for State and County Purpose;’” which said taxes were paid by the plaintiff under protest.

The plaintiff claims that these acts, collectively known as the Adams Tax Law, are unconstitutional, null and void, for the following reasons:

First, because neither the title of the original act of 1897 (Chapter 381, Volume 20), nor of the amending act of 1898 (Chapter 24, Volume 21), discloses the subject of municipal, taxation, which is embraced in the text of the amending act, and is therefore within the inhibition of Section 15, Article 8 of the Constitution of 1897.

Second, because the title is deceptive, false and misleading; in that it claims to be an act “.to equalize,” when in fact the provisions of the amending act of 1898 produce inequality in taxation; requiring as it does citizens of rural New Castle County to contribute three times as much for county purposes as is required of a citizen of Wilmington.

Third. The plaintiff further claims, that in any event it must recover the amount paid as taxes for 1898, because the tax for that year was not assessed according to law; in that no opportunity of review or of appeal from the assessment was given to the taxable; that he had no day in court.

The first inquiry is, does the title disclose the subject of municipal taxation, within the scope of Section 16, Article 8, of the Constitution of 1897.

The title of the original act of 1897 is, “An Act to Equalize Taxation for State and County Purposes.”

The text of that act relates to the assessment and collection of taxes for State and County purposes, upon all investments paying interest or yielding an income which are not taxed for either State or County purposes or exempt from taxation, and provides that one-fourth of the money so raised in each county shall be for the use of the State, and the other three-fourths for the use of the county in which the same was levied and collected.

The title of the amending act of 1898 is, “An Act to Amend Chapter 381, Volume 20, Laws of Delaware, entitled 'An Act to Equalize Taxation for State and County Purposes.’ ”

Section 7 of the latter act provides as to New Castle County as follows: “ That of the moneys which shall be levied and collected under the provisions of this act, within the limits of the City of Wilmington, one-fourth thereof shall be for the use of the State and another one-fourth thereof shall be for the use of New Castle County, and the remaining two-fourths thereof shall be for the use of'The Mayor and Council of Wilmington.’ ”

Thus introducing into the act as amended the subject of municipal taxation.

Section 16, Article 2 of the Constitution of 1897, as already stated, is as follows: “ No bill or joint resolution except bills appropriating money for public purposes, shall embrace more than one subject, which shall be expressed in the title.”

Judge Cooley in his work on Constitutional Limitations, lfS has concisely stated the reasons for the insertion of provisions like this in State Constitutions. He says: “It may be assumed as settled, that the purpose of these provisions was, first to prevent hodge-podge or log-rolling legislation:

“ Second, to prevent surprise or fraud upon the Legislature by means of provisions in bills of which the titles give no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted;

“ Third, to fairly apprise the people through such publication of legislative proceedings as is usually made of the subjects of legislation that are being considered, in order that they may have an opportunity of being heqrd thereon, by petition or otherwise, if they shall so desire.”

So far as the subject of taxation for municipal purposes is concerned, is not this title open to all of the three objections stated by Judge Cooley ? First, as tending to log rolling or omnibus legislation ; second, surprise or fraud upon the Legislature, there being no intimation of this subject; third, giving no fair notice to the people of this subject of legislation. 1

In addition, does not the title negative the presence of legislation for municipal purposes, by expressly confining the scope of the act to be “ for State and County purposes; ” and to that extent deceiving and misleading the Legislature and the people ?

If the title had stopped with the words “ An Act to Equalize Taxation; ” a different question would have been presented. In that case, the general subject of taxation, without any qualification other than that of equality, would be covered. When to these words, however, are added the limitation u for State and County purposes;” it becomes the legislative declaration that no other than state and county taxation are contemplated.

In Montgomery Building and Loan Association vs. Robinson, 69 Ala. 417, this whole subject is very ably discussed, and this clear rule is laid down. “ The question must always be, whether, taking from the title the subject, we can find anything in the bill which cannot be referred to that subject. If we do, the law embraces a subject not described in the title.” The provision of the Alabama Constitution is as follows: “ Each law shall embrace but one subject, which shall be described in the title.”

In the case of Sewickley Borough vs. State, 168 Pa. St., 169, it was held that under “an act to exempt from taxation public property used for public purposes and places of religious worship,” etc. that a provision in the act taxing other property not used for such purposes was unconstitutional, under the following constitutional provision: “ No bill except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in the title.”

It was decided in Hymen vs. The State, 87 Tenn., 109, that “A statute prohibiting sales of liquor to drunken husbands is unconstitutional and void if enacted either as an original or amended act, under the caption (An Act to Prevent the Sale, Giving or Delivery of Liquor to Minors.’ Its purview is not germane to its caption.”

The provision of the Tennessee Constitution was that “No bill shall become a law which embraces more than one subject, that subject to be expressed in the title.”

The Court in that case uses the following language: “The precise question to be determined in this case is, whether the title of the original act, entitled; ‘ An Act to prevent the Sale or Giving or Delivery of Liquors to Minors/ is broad enough to embrace an amendment, not relating in any way to prohibiting sales or gifts of liquors to minors, but which prohibits the sale or giving liquors to drunken husbands. We are not at all disposed, to construe this constitutional provision strictly. On the contrary it should be given á liberal construction, so as not to embarrass legislation by a construction unnecessary to accomplish the beneficial purposes for which it was adopted. Yet, as stated by the eminent constitutional lawyer already cited (Cooley), the Legislature may make the title to an act as restrictive as they please. It is obvious that they may sometimes so form it, as to preclude many matters being included in the act, which might with entire propriety have been embraced in the enactment with the matter indicated in the title, but which must not be extended because the bill has been made unnecessarily restrictive. The Court cannot enlarge the scope of the title; they are vested with no dispensing power. The Constitution has made the title the conclusive index to the legislative intent, as to what shall have operation. It is no answer to say that the title might have been made more comprehensive if in fact the Legislature has not seen fit to make it so. (Cooley Const. Lims., 179). It is not to be doubted that the Legislature might have in one act, prohibited the sale of liquors to both minors and habitual drunkards, and that many other classes of persons might have been included within the prohibition. But in such case, the title to the act should have been comprehensive enough to have included the several prohibitions.

“ The title of the act in question is an exceedingly restrictive one. It clearly indicates, that the subject of the act is the sale of liquors to minors. The subject of legislation is not the sale or giving of liquors generally, but the sale to a very limited class, to wit; minors. It would never occur to legislator or layman that under such an index would be found legislation prohibiting the sale of liquors to any other class of persons than minors.” Substitute “ State and county -purposes ” for “ minors ; ” and “ Municipal purposes ” for “ drwiken husbands ; ” the reasoning in this case applies with equal force to the one we are now considering; the more emphatic wording of the provision of the Tennessee Constitution being nothing more than what would be the legal interpretation of our own Constitution where the provision is clearly mandatory.

¡In the case of the Mayor and Council of Knoxville vs. Lewis 12 Lea (Tenn.) 180, the Supreme Court of Tennessee seems to have decided the precise question presented in this case.

It held a law to be unconstitutional which was entitled “ An Act to Provide more Just and Equitable Laws for the Assessment and Collection of Revenue for State and County Purposes,” etc.; because in the text of the law provision was made for the collection of municipal tax, while no reference is made in the title.

The Court says, “ That taxes for municipal purposes are not taxes levied for State or county purposes, and are not included under the terms of the title to this act, seems too clear for argument or illustration. If a State tax is not a municipal tax, or a county tax not one, then it is clear the title does not provide for, but excludes any provision for the collection of municipal taxes. The expression of these purposes necessarily excludes a different one.”

Under a liberal construction of our constitutional provision, it must be manifest that the subject of taxation for municipal purposes is not within the title of the act in question, which is confined to State and county purposes; and so much of the amending act as relates to that subject is therefore unconstitutional and void.

Our next inquiry must be to what extent the act as amended is affected by these unconstitutional provisions. It is claimed by the defendant that if so much of Section 7 of the act of 1898, which embodies the new Section 12 as relates to municipal taxation should be declared void, that Section 12 of the original act of 1897 would stand and still leave the statute effective. Upon this point he cites, Cooley on Const. Lims. (5 Ed.), 222; Shepardson vs. M. & B. R. R. Co., 6 Wis., 605; State vs. Judge of County Court, 11 Wis., 50; Sullivan vs. Adams, 6 Gray, 476; DeVoy vs. Mayor, etc., 33 Barb., 264; Coupon vs. Delroe, 14 Mich., 276; Childs vs. Shower, 68 Iowa, 261. These and many other cases have been carefully examined. They all turn upon provisions similar in effect to' section 23 of the amending act of 1898, viz.: “All acts or parts of acts inconsistent with this act are hereby repealed,” and are cases of repeal by implication.

In such cases this reasoning is entirely correct, because the repealing act being void and inoperative from the beginning, it did not effect a repeal, and therefore the original act stood untouched.

Under section 7 of the amending act of 1898, section 12 of the original act is expressly repealed by these words: “Amend the said chapter by striking out all of section 12 thereof.” Here the Legislature has specifically and expressly repealed section 12, which it had the power to do. This left the original act without any section 12; and if the substitute therefor provided by the amended act be unconstitutional the original statute has no section 12 and the statute as amended is emasculated to that extent. This proposition would seem to require no elaboration.

In this connection we will consider cases where the amending act expressly repeals some part of the orignal statute.

Where an amending act, among other things, expressly repeals a section or a part of an original act, and substitutes an unconstitutional section or part in lieu thereof, no court, so far as the most careful investigation discloses, has ever held, that the section or part of the original act so repealed was retained or restored, unless the repealing clause itself was void.

Courts have never attempted to say what a Legislature would have done, if it had anticipated that the substitute would prove to be unconstitutional; unless the Legislature has clearly expressed its intent in such a contingency, amounting substantially to a declaration in the amending act, that in case the new section or part should prove to be void then the old should stand. Indeed to do so, would be to stipulate in umbra, and to formulate and-enact law out of the brains of the Judge, in the face of the express declaration of the Legislature that the old section is stricken out. We can conceive no more dangerous method of substituting the judicial will for legislative enactment.

In cases of express repeal, it seems to be settled, that the old section only remains valid, where the amending act is totally void including the repealing clause; and therefore the original act was in fact repealed. This solves every case of express repeal that we have been able to find.

In Judson vs. City of Bessemer, 87 Alabama, 240, the amending act read as follows: “ That Section 38 of the Charter of the City of Bessemer, Alabama, be and the same is hereby amended by striking out the word fifty in the fifth line of said section, and inserting the word thirty in lieu thereof.” The repealing clause of the amending act was held to be void, not because it was connected with the unconstitutional substitute, but because the whole amending act, including the express repeal, had not been re-enacted and published at length, under the provision of the Alabama Constitutian, “ That no law shall be revised, amended, or the provisions thereof extended, or conferred, by reference to its title only; but so much thereof as is revised, amended, extended or conferred shall be re-enacted and published at length.” The case, therefore, falls within the principle of a void amendment including the repealing clause, thus leaving the old law unrepealed.

Coming within the same rule is the case of the State ex rel. vs. Blend, et al., 121 Ind., 514; where the Court held that the body of the amending act was unconstitutional, which body embraced the repealing clause. The language of the repealing clause was as follows: “ That all laws and parts of laws in conflict with it, and especially the act providing for a metropolitan police in cities ot 29,000 inhabitants, are by this act repealed.” The Court does not state the ground upon which it holds the body of the amending act to be unconstitutional, and the case is otherwise quite indeterminate and unsatisfactory; but it does hold that “ the body of the amending act was void,” which carried the repealing clause as a part of it.

To a similar effect are all the cases where an express repeal has been disregarded.

In the case at bar, the Legislature has said expressly, strike out the old section 12,and insert in lieu thereof the new section 12. The striking out was within its power and valid, and old section 12 is therefore out. New section 12 was beyond its power and unconstitutional, and is not therefore in.

Under all the rules of construction, the striking out or repeal, and the inserting of the substituted section 12, are not so inseparably connected in terms, in this case, that if one falls the othér must fall; but are separable, each being a distinct substantive and complete thing in itself when separated. Are they then made inseparable by legislative intent f

By coupling together in one section of the amending act, the express repeal of old section 12 and the substitute new section 12, the legislative intent that they are inseparable is no more manifest, than if in one section of the amending act, old section 12 had been repealed, and in some other remote section, or in an entirely independent act, a substitute for old section 12 had been provided, without saying in lieu thereof or any other express words of substitution ; yet the substitution in that case would be just as complete by implication, as if declared in express terms. In such case it would hardly be contended that the distinct repealing section would be void, because the remote section or independent act actually providing a substitute was void. The rule and reasoning would be the same in each case.

If the Legislature had said “strike out section 12, and insert in lieu thereof as follows ”—and then had not filled up the following or- intended section, but had left it blank, it could hardly be said that it did not intend to strike out, when it had expressly said so, because it had provided nothing to take its place, the blank substitute being a nullity. Yet this is in effect the case before us, where an unconstitutional substitute is nothing, just as much as a blank substitute is nothing. We consider that the Legislature did intend to strike out, for it has said so expressly. True it has no* provided a substitute; but that is an omission only as to the substitute, andjdoes not affect the validity of the striking out.

But it is urged, that the Legislature intended to amend and make effective, the law for the assessment, collection and distribution of taxes on personal property, and not to annul such a law.

How shall we ascertain such intention ? They have said, we do not want old section 12, because in express terms it is stricken out by them. They have also plainly said, we do want new section 12; which by necessary implication shows that they did not want old section 12. Yet we are asked to say by implication, that inasmuch as new section 12 is unconstitutional, that the Legislature intended in that event that old section 12 should remain.

Who can tell what action the Legislature would have taken in case new section 12 should prove to be unconstitutional? Does it appear that they contemplated any such contingency ? If their intention had been as contended it would have been very easy for the Legislature to have expressed such intention in appropriate language.

To say that section 7 of the amending act, is single, and not divisible; that it shows the intention of the Legislature to be, that old section 12, should remain, in case new section 12 could not be substituted, begs the question. Said section 7, naturally divides itself into two distinct purposes of legislative action; the one is to repeal, and get rid of something that the legislature expressly said it did not want; namely, old section 12; the other, to adopt something that it did want; namely, new section 12. The one purpose, of all others appearing by the express terms of said section 7 is to get rid of old section 12; inasmuch as new section 12 embraces the radical difference between the old and the new acts, and shows that the Legislature for reasons, in its judgment deemed sufficient, as we must presume, did not intend in any event that old section 12 should stand. That was manifestly the change it had determined to make. It would seem paradoxical, therefore, for the Court to hold, that the legislative intent to get rid of that section is best interpreted by retaining it. For this would be the logical result of such a conclusion.

In view of the express repeal of old section 12, and the implied intention not to have it, by enacting new section 12, which in some of its provisions is radically different from the old section; would it not be speculation pure and simple to say that the Legislature did intend to retain the old section if the new section should prove to be unconstitutional? Would not this be entering upon the realm of judicial legislation, and the substitution of the hypothesis of the Judiciary for the will of the Legislature; with nothing to guide us as to what the Legislature would actually have done in such a contingency ?

It is somewhat remarkable that after the most diligent search, no case has been found in the books which directly supports such a proposition.

It is claimed further, however, that as the unconstitutional part of new section 12 relates only to taxation for municipal purposes that the statute is still effective, for State and county purposes, if the unconstitutional parts are capable of separation from the remainder of the act; that is, in the language of the defendant, if “ That which is left is complete in itself, sensible and capable of being executed.” Of course if this be so, the law, under well settled rules, would still be valid.

A careful examination of the statute shows that the provision for taxation for municipal purposes, relates not alone to the payment to the city of the money so received as and for its use, but necessarily enter into the assessment, levy and collection thereof as well; indeed it pervades every material feature of the act as essential parts of its structure as a method of raising revenue by taxation and is therefore incapable of separation; inasmuch as said section 12 as amended says, “That of the moneys which shall be levied and collected under the provisions of this act, in New Castle County, within the limits of the City of Wilmington two-fourths thereof shall be for the use of the mayor and council of Wilmington.’’ The taint of unconstitutionality applies therefore to the levy and collection of the tax as well as to its distribution, and may not be separated from the residue without destroying the machinery for levying and collecting taxes for all purposes.

It may be said, moreover, that so much of new section 12 being void, as relates to the distribution of the tax; the original statute as amended becomes inoperative, because the object for which the tax is levied is eliminated therefrom; thus leaving the statute without a purpose; practically a nullity.

Our conclusion is, that as section 12 of the original act, was repealed by section 7 of the amending act; that as so much of said new section 12 as relates to taxation for municipal purposes in the amending act is unconstitutional and void, because it is not covered by the title, and that as the unconstitutional part cannot be separated from the residue, without emasculating the statute, that therefore the act as amended is unconstitutional and void, and the plaintiff is entitled to recover.

Entertaining this view, it becomes unnecessary for us to consider the remaining questions, which were raised and argued with so much force and ability, viz.:

First, the unconstitutionality of the act because it is claimed to be in violation of section 1, Article 8 of the Constitution of 1897 providing for uniformity in taxation.

Second, the alleged illegality of the tax for 1898, because it was not assessed according to law, in that the taxable had no day in Court, no opportunity to review the assessment or to take an appeal.

It is ordered- that the prothonotary certify this opinion to the Superior Court for New Castle County.