Frieszleben v. Shallcross | Cases | Westlaw

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 the record, and admitted, that the plaintiff is a white male person, and was in all respects, except as to the payment of a county tax, qualified to enjoy the right of an elector in this state at said election. It is also admitted that he was duly assessed and rated for a poll–tax for the year 1885 in the north collection district of Wilmington hundred; that the warrant for the collection of said tax was duly issued to Patrick Neary, the collector for said district; and that the said collector of taxes, having given the notices prescribed by law, and having attended, and remained in attendance, pursuant to said notices, and conformably with the statutory requirements for the collection of said tax, duly returned the plaintiff to the levy court of said county, on March 2, 1886, as a delinquent,––the plaintiff not having paid his poll–tax to him as such collector. It is also admitted that the plaintiff was not dead, and had not left the state, and that the said levy court had no evidence on the subject before it except the collector's return of the plaintiff as delinquent, and his affidavit, verified by his oath, and filed as prescribed by law, of his having, prior to said return, given the notices, and attended and remained in attendance, as aforesaid. It is also admitted that subsequently, on March 29, 1886, the said levy court did allow to the said collector the said poll–tax of the plaintiff, and did cause the name of the plaintiff to be struck and dropped from the said assessment list, whereby no tax was assessed or laid upon the person of the plaintiff for the next ensuing year, (1886,) and the plaintiff was deprived of any and all opportunity, at any time thereafter, to pay a county tax for the said year (1886) then next ensuing, and thereby of the right to qualify himself as an elector to vote at the general election in said county held on Tuesday, November 2, 1886. It is further admitted that the plaintiff had paid no tax, under any preceding assessment, within two years of and prior to said election. The defendants justify their action in dropping and striking the name of the plaintiff from said assessment list, and in failing to levy a tax on him for the year 1886, under the provisions of the act entitled “An act in relation to the collection of taxes in this state,” passed April 10, 1873, being 14 Laws Del. c. 372, and also under the provisions of section 9 of an act entitled “An act in relation to the duties of assessors and of the levy courts in the several counties of this state,” passed April 9, 1873, being 14 Laws Del. c. 371, and the defendants also claim that they cannot be held personally liable in damages for their action as members of said levy court, while, on the contrary, the plaintiff *588 claims that the provisions of said acts under which the defendants justify their action as aforesaid are unconstitutional and void, and that the defendants are personally liable to him for their said action.

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 1886, and from all opportunity to pay a tax for that particular year. His suit is instituted for damages for his nonassessment 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 determination of that question upon this occasion would be obiter dictum in the case before us. The real question in the case is whether or not the provisions of the acts of 1873, requiring the exclusion of the plaintiff in March, 1886, from assessment for that year as a poll taxable, because he was, in said month, returned and allowed as delinquent for 1885, are unconstitutional, and not whether the provisions of section 18, c. 12, Amend. Code, requiring the extinguishment of the tax of such delinquent, are or are not so. Accordingly, the questions actually reserved for the decision of this court are: First, whether or not the said provisions of the acts of 1873, considered with reference to the case of the plaintiff as presented by the record, are unconstitutional and void; and, second, if said provisions be so, whether or not the defendants are personally liable to the plaintiff in damages for their action thereunder as members of the said levy court.

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 appointment, 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 power, as well as in regard to the nature of the elective franchise, with the view of ascertaining whether the latter is subordinate or paramount to the legitimate exercise by the legislature of the taxing power for the purpose of raising, with regularity and certainty, the public revenue necessary for the support of government, and the promotion of the general welfare.

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 county 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 *589 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 for the same to and upon the assessments in the several hundreds at a certain rate upon every $100 of the said assessments, and also to cause to be issued, on or before the first Tuesday of April, to the collectors of taxes, respectively, a duplicate of the assessment list of his hundred or collection district, with a warrant thereto annexed. By the provisions of chapter 12, Amend. Code, it was made the duty of every collector of county taxes to enforce payment of any tax unpaid, after due demand by him, by sale of the personal and real property of the taxable, and, in case he should be unable to find property sufficient therefor, he was authorized to enforce payment thereof by imprisonment of his body. The collector was required by section 10 of said chapter 12 to render to the levy court on the first Tuesday of March next after the date of his warrant, a true account of all taxes it was his duty to collect, and of all the payments made, and of all delinquents. By section 21 of chapter 8, Amend. Code, it was provided that “at the meeting in March in every year the levy court shall examine, adjust, and settle the accounts of the collectors, making all just allowances, and the adjustment and settlement shall be final; and the court, if deemed expedient, may require other accounts from the collectors. They shall at the said meeting examine and settle the delinquent list of each collector, as well of state as of county taxes, and make allowance of delinquents; and upon such allowance the collector shall be credited with the amount thereof. The name of the delinquent, if he be dead, or have removed from the state, shall be struck from the assessment list, and also from the collector's duplicate; otherwise, it shall remain on the assessment, and be entered on the collector's duplicate for the succeeding year.” It was also provided by section 18 of said chapter 12 that “no collector, nor his executors or administrators, shall collect or receive any tax after two years from the date of the warrant. After that date it shall be extinguished. Nor shall he at any time collect or receive any tax allowed as delinquent, but the same shall be extinguished.” The foregoing system, and the statutory provisions relating to it, which are material to the present inquiry, are still in operation and full force, except so far as they have been modified by the acts of 1873, which are, in their purpose and effect, merely amendatory and supplementary thereto.

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 of this purpose. It makes it unlawful for any assessor to place on the assessment list the name of any person who is not the owner of taxable real or personal property within his assessment district, unless he shall be satisfied, from personal knowledge, that such person is of lawful age, and is a bona fide resident of his district. It also requires every assessor, within 10 days after completing his assessment list, to post the same as prescribed by the act, and to give notice that he will attend, at the place, day, and hours therein specified, to correct any errors in his assessment, and for the purpose of assessing any person who may have been omitted. He shall at the same time give notice that any person desiring to be assessed must apply in person before him, at the time and place mentioned in said notices, and prove his right to be assessed by the oath or affirmation of some respectable freeholder of the county that he (the applicant) is the identical person he represents himself to be, and known to said freeholder personally to be such; that he is 21 years of age; and that he is a bona fide resident in the hundred and county of the assessor, and in the state of Delaware. If the assessor cannot complete the correction of his assessment on the day named in said notices, he may adjourn as prescribed in the act. In case of inability, from any reason, to attend at the time specified in his notices, he shall appoint some other day, and give notice thereof in the same manner as aforesaid. *590 The act then, by express provisions, imposes severe penalties upon the assessor for the refusal or omission to place upon the assessment the name of any person who appears and makes proof, in the prescribed manner, of his right to be placed thereon. It also imposes penalties upon the assessor for knowingly placing upon the assessment any fictitious name, or the name of any person not at the time resident in the hundred or assessment district, and also upon any person who shall procure or cause to be placed upon the assessment in any hundred or assessment district the name of any person not entitled to be assessed in said hundred or district, or shall knowingly procure or cause to be placed thereon any fictitious or fraudulent name. It further provides “that it shall not be lawful for the levy court in either of the counties of this state, or any member thereof, to take from the assessment returned to the said levy court by any assessor the name of any person appearing thereon; nor shall it be lawful for such levy court, or any member thereof, to add to any assessment returned as aforesaid the name of any person, unless upon the personal application of such person, and upon proof of his right to be assessed,” (section 6,) in the manner already stated; and for the violation of this provision a severe penalty is also imposed. The act further provides, in section 9 thereof, “that it shall not be lawful for any assessor or any levy court, upon the personal application of any one, or otherwise, to place upon the assessment in any hundred the name of any person who, having failed to pay the county tax assessed against him or her for the preceding year, was returned and allowed as a delinquent, until after the expiration of the twelve months from the time such allowance as delinquent was made by the levy court.”

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 in this state” being chapter 372, vol. 14, aforesaid. The provisions of this statute are substantially as follows: Section 1 makes it the imperative duty of every collector of county taxes in each hundred or collection district in this state, within 30 days after he shall have received his duplicate list, (in April of every year,) to give public notice, in the manner prescribed in the act, stating in such notice his place of residence or of business, and his readiness to receive taxes. They make it also his duty, in the month of January in each year, again to give public notice, as aforesaid, of at least 10 days, which last–mentioned notice “shall state the times and places at which such collector will attend for the purpose of receiving taxes then due and unpaid; and it shall be the duty of the levy court in every county, upon proof being made to them by the affidavit of the collector, verified by his oath or affirmation, and filed in the office of the clerk of the peace for the respective county, setting forth that he has given notice as required by this section, and that, in accordance with the notice last above mentioned, he did attend at the times and places designated in such notice for the reception of taxes, and did remain for the space of at least five hours in each day, and for the period of at least three days, in attendance, for the purpose of collection of taxes aforesaid, to allow said collector, as delinquencies, the taxes uncollected by him; and the names of such delinquents shall be dropped from the assessment list by the levy court, and shall not be placed thereon again for a period of twelve months from and after the date of such allowance.” Section 1 also declares that these provisions shall apply to persons assessed and liable to pay polltax. Section 2 provides “that the notices required to be given in section 1 of this act by the collector aforesaid shall be deemed and taken to be sufficient demand upon taxables for the payment of taxes standing against them on the collector's duplicate of the several hundreds and collection districts of this state. Such notices, given as aforesaid, shall be considered a performance and full discharge of the duty of the collectors aforesaid to make demand for taxes; and they shall not be required thereafter to make further demand on any taxable for said taxes as a condition precedent to the employment of legal process as now provided by law for the collection of taxes.” Section 3 makes it the duty of the collector to give receipt for taxes received, and, in addition to his signature, to make the impression of the seal (for which it makes provision) of the hundred or collection district of which he is collector upon all receipts given by him for county taxes. Sections 4 and 5 impose penalties upon the collector for using, or permitting the unlawful use of, said seal, and upon all others for counterfeiting said seal, or participating in the fraudulent use of the same. The salient feature of this act is the mandatory provision that the levy court, upon the return of the collector's delinquent list, as provided by section 10, c. 12, Amend. Code, and upon the *591 evidence of his affidavit made and filed as prescribed in section 1 of the act, shall allow said collector as delinquencies the taxes uncollected by him; and that the names of such delinquents shall be dropped from the assessment lists by the levy court, and shall not be placed thereon again for a period of 12 months from and after the date of such allowance.

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 on the collector's duplicate for the next ensuing year. By the requirements of the foregoing provision of said chapter, therefore, in addition 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 section 1 of chapter 372, and of the penal provisions of section 9, c. 371, the collector's return is made imperatively binding upon the assessors and the levy court. Each act is, therefore, manifestly designed to operate in connection with the other as a component part of the pre–existing county revenue system, and as amendatory of and supplementary thereto. The practical effect of their provisions is to make the collector exclusively the agent of the legislature in its exercise of the taxing power; to ascertain and determine finally and conclusively, in the mode prescribed by law, whether or not those whom he shall return as delinquents will be productive taxables for the next ensuing year.

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 implied in their reference only to the officers exclusively intrusted with duties pertaining to revenue, and is disclosed through their essential and inseparable connection with the entire Code of county revenue legislation, of which, for their own effectual operation, they must necessarily form a constituent part. Hence, it cannot be maintained that they are primarily a regulation of the suffrage, and secondarily only a regulation of taxation. For, if this be true, then it may be maintained with equal reason that the entire county assessment and collection system, since it is necessarily employed for the qualification of voters through the payment of a county tax, is therefore primarily intended and established to regulate the qualification for voting, rather than to provide for the collection of revenue. The mere statement of this proposition is sufficient for its refutation. Accordingly, the conclusion is irresistible that in their primary purpose and design the provisions drawn in question by the plaintiff's case are intended as an exercise of the taxing power by the legislature with the view of improving the efficiency of the county revenue system. Whether or not it is the wisest and most effective plan for accomplishing this result which could be devised is immaterial to the question of their constitutional validity. They have been adopted as a means for effecting this result, which appeared to the legislative judgment, as we must presume, to be the most suitable and most effectual for its accomplishment. Being so, the said provisions must be presumed to be valid, and of binding force, until their enactment shall be shown to have been, in constitutional contemplation, unwarranted and prohibited. Cooley, Const. Lim. 168, and cases there cited.

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 imperative whether declared in written constitutions or not. Cooley, Tax'n, 41; Brick Co. v. Brewer, 62 Me. 62; State v. Readington Tp., 36 N. J. Law, 66; Sharpless v. Mayor, 21 Pa. St. 168; Hammett v. Philadelphia, 65 Pa. St. 151; In re Washington Avenue, *592 69 Pa. St. 363, 364; Knowlton v. Supervisors, 9 Wis. 410.

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 tax 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.” McCulloch 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 of constitutional government. In the first place, taxation having for its only legitimate object the raising of money for public purposes, and the proper needs of government, the exaction of moneys from the citizens for other purposes is not a proper exercise of this power, and must therefore be unauthorized.” Cooley, Const. Lim. 487. “In the second place, it is of the very essence of taxation that it be levied with equality and uniformity, and, to this end, that there should be some system of apportionment. Where the burden is common, there should be common contribution to discharge it.” Id. 495. “But, to render taxation uniform in any case, two things are essential. The first of these is that each taxing district should confine itself to the objects of taxation within its limits.” Id. 499. The second essential is that apportionment of taxes should reach all the objects of taxation within the district. Of the correctness of this as a principle there can be little doubt, though there may sometimes be difficulty in determining whether in practice it has been applied or not. Id. 501. “Absolute equality and strict justice are unattainable in tax proceedings. The legislature must be left to decide for itself how nearly it is possible to approximate so desirable a result. * * * The legislature must also, except when an unbending rule has been prescribed for it by the constitution, have power to select, in its discretion, the subjects of taxation. The rule of uniformity requires an apportionment among all the subjects of taxation within the districts, but it does not require that everything which the legislature might make taxable shall be made so in fact. Many exemptions are usually made from taxation, from reasons the cogency of which is at once apparent.” Id. 513, 514. “The constitutional requirement of equality and uniformity only extends to such objects of taxation as the legislature shall determine to be properly subject to the burden. The power to determine the persons and the objects to be taxed is trusted exclusively to the legislative department; but over all those objects the burden must be spread, or it will be unequal and unlawful as to such as are selected to make the payment.” Id. 515. “It is, moreover, essential to valid taxation that the the taxing officers be able to show legislative authority for the burden they assume to impose in every instance. Taxes can only be voted by people's representatives.” Id. 517.

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 *593 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 paying a tax. Instead of discriminating arbitrarily and unequally, by making him bear the burdens of others belonging to his own poll class of taxables, the truth is that the non–delinquent taxables were obliged in 1886 to bear the extra taxation necessary to make good his delinquency in 1885. The latter might justly urge the unequal effect of the operation of said provisions, were it not for the fact that, owing to his inability to pay any tax, (which must be presumed from the return of the collector,) his exclusion from assessment, in reality, neither increased nor diminished their actual burdens thereafter.

But, even if it were otherwise, and the nondelinquents, 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 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 pay an 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 assessment, by excluding therefrom all unproductive taxables, in order to prevent a constantly recurring annual deficit. It is a well–settled rule of constitutional construction that when a constitution gives a general power, or enjoins a duty, it also gives, by implication, every particular power necessary for the exercise of the one or the performance of the other. Therefore, the power to raise by taxation sufficient revenue for the needs of government necessarily includes the power to make reasonable provision for preventing a deficit. This, as has been shown, was the object of the legislature in the enactment of the provisions complained of by the plaintiff. In its judgment, they were deemed necessary and appropriate to the object in view. For this purpose, they have, in effect, made the collector in each hundred and collection district the sole and final judge of the incapacity for the payment of a tax (and consequently of his unproductiveness as a taxable for the next ensuing year) of any one whom the collector shall return as a delinquent in any year. He has been selected by the legislature, in the exercise of the taxing power, as its agent, for this duty, because, as must be presumed, he is the most suitable revenue official for the purpose. Being charged by law with the special duty of collecting taxes, and employ ing legal process in that behalf, and being also under the obligations of his official bond to fully discharge his duty, he is, presumably in the legislative judgment, the revenue official best qualified and most likely to discover the productiveness or unproductiveness of the taxables on his annual duplicate. Having given bond, and being liable civilly and also criminally for corrupt and malicious conduct in his office, he cannot reasonably be said to be an irresponsible officer. Nor is it true, as was contended for the plaintiff at the argument, that the collector is clothed, under the provisions of the legislation of 1873, with authority, arbitrarily, and at his mere will and pleasure, to decide what poll taxables shall, and what poll taxables shall not, pay tax for the ensuing year, and with unrestrained power of choice as to whom he will return as delinquent. Under the provisions of sections 11–14, c. 12, Amend. Code, it is made the imperative duty of the collector to sell the personal and real property of every taxable who shall fail to pay his tax to the collector after 10 days' demand, in order to enforce payment thereof; and for the same purpose, in case he shall not find sufficient property, he is authorized by section 15 of said chapter 12 to take and imprison the body of every such taxable. Again, under the provisions of section 10 of said chapter 12, the collector is also imperatively required, “on the first Tuesday of March next after the date of his warrant, render to the levy court a true account of all taxes it was his duty to collect, and of all payments made, and of all delinquents.” These provisions were not repealed nor altered by the legislation of 1873, but, on the contrary, were recognized by it as of continuing force and obligation. Accordingly, the provisions of 1873 must be construed in connection with them. This being so, the absolute duty is imposed by law upon the collector to collect from all alike, without favor or discrimination, and to return all as delinquents and unproductive taxables whose tax cannot be collected on demand, or by legal process. If the collector shall act arbitrarily and corruptly, and disregard his duty, he will *594 do so in direct violation of said statutory provisions, and of the meaning and purpose of the legislation of 1873. He would, therefore, act not by authority of, but contrary to, the law. While this will be a good reason for the punishment of the offending collector, yet it is not recognized by the courts as a sufficient ground for declaring the provisions of a statute unconstitutional and void. Patterson v. Barlow, 60 Pa. St. 54. It is therefore the undeniable duty of the collector to make diligent inquiry, and exhaust legal process, wheresoever effectual, in the effort to collect the tax of the citizen, before he shall return him to the levy court as a delinquent or unproductive taxable. This is the duty which he owes to the public under the mandates of the law, and the obligations of his bond. He also owes to the individual citizen the duty of giving the two several notices prescribed by section 1 of said chapter 372, vol. 14, and the opportunity, in accordance therewith, to pay his tax. Upon the discharge of these several duties, he shall make his said return to the levy court, and the same shall be conclusive that the delinquent, in legislative contemplation, will be unproductive as a taxable for the next ensuing year, and accordingly his name shall be excluded from the assessment list for that year. It is necessary that this return shall be conclusive of this fact, in order to exclude him from the assessment list, and so prevent a deficit, in fulfillment of the purpose of the statute. Unless such fact be ascertained during March of any year, it would become impossible to complete the assessment, and have the duplicate and warrant in the hands of the collector in April of such year, as prescribed by law. Consequently, unless this fact can constitutionally be ascertained in the mode and at the time prescribed, the provisions of the act would be nugatory, and their primary purpose frustrated. Hence, this mode of ascertainment of a fact essential to the indispensable collection of public revenue with regularity and certainty is necessary to the proper execution of the taxing power, and is an appropriate and legitimate exercise thereof by the general assembly. Hagar v. Reclamation Dist., 111 U. S. 701–715, 4 Sup. Ct. Rep. 663; Wilson v. Railroad Co., 5 Del. Ch. 538, 545; Cooley, Const. Law, 87.

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 opportunity to appear before the collector, and show his capacity as a taxable for 1886, but that he did not do so. He admits that he had not, within two years next before the general election in that year, paid any tax, and does not allege or show that he was able or willing to pay any tax either for 1885 or 1886. He admits that the collector was in attendance for the reception of his tax, conformably to his notices given as prescribed by the act; but he does not allege or show that the collector ever refused to receive it, or deprived him of a free and ample opportunity to pay it. Nor does he allege or show that the collector had not fully and in good faith discharged his official duty, and exhausted all lawful and effective means in an earnest effort to collect his tax before he returned him as a delinquent and unproductive taxable. So that the verity of the statutory presumption established by the collector's return is nowhere impeached by the record.

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 belongs 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 admistration 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 deduction therefrom was unwarranted. The fact that thousands of poll taxables are annually returned as delinquents by the collectors is not shown by the record in the case before us, but it is shown by the official records of the county revenue officers. Careful examination of these shows that, in addition to those who subsequently die, or remove from the state, there have been placed upon the assessment lists in a single year, in Wilmington alone, not only hundreds, but thousands, of names of persons who never existed, and also great numbers of those whose taxes could not be collected even by legal process. That thousands of these were fictitious names of *595 persons who never existed, is demonstrated by the disproportion which the assessment bears to the population as shown by the census reports. That thousands of the remainder were absolutely unproductive taxables, against whom legal process was wholly unavailing, is a fact which, beyond question, can be conclusively established. While this demonstrates the infirmity of human instrumentalities, and the inadequacy of even the present assessment laws and their penal provisions, it also significantly demonstrates the necessity for, and emphasizes the value of, the collection law of 1873, by operation of which these flagrant faults in the assessment lists are annually corrected through the agency of the collector.

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 section 1, art. 4, and of section 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 1 provides that “all elections shall be free and equal.” It has been shown that said provisions of the acts of 1873 were enacted by the legislature in the legitimate exercise of the taxing power, and were appropriate and necessary to the due execution thereof, and were, in their primary purpose and design, a regulation of the collection and assessment of county taxes, and but incidentally and secondarily a regulation for the qualification of electors. The plaintiff's contention, therefore, directly raises the question, has the general assembly, according to the true meaning and intent of the constitution of this state, authority to exclude from assessment, in any particular year, a citizen who has been ascertained, by a mode appropriate and essential to the effectual exercise of the taxing power, to be, in the legislative judgment, an unproductive taxable for that year? This is the controlling question in the case presented by the record. There is no need, upon the present occasion, of considering or declaring the extent of legislative power and discretion beyond the requirements of this pivotal question. If it shall be decided affirmatively, the controverted provisions of the acts of 1873 must be sustained as constitutional and valid. The taxing power, and also the privilege of exercising the elective franchise, are both conferred by express but separate provisions of the same constitution, ––the former by section 1 of article 2, and the latter by said section 1 of article 4. No express limitation upon the taxing power in respect to suffrage is found in that instrument. Therefore, if any restriction upon such power exists, it must appear by clear implication from some other express provision of the constitution. To ascertain this, resort must be had to a proper construction of the entire instrument. Every enactment of the state legislature is presumed to be constitutional and valid until the contrary is shown. There is no safe rule for construing the extent or limitation of powers in a constitution “other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred.” Gibbons v. Ogden, 9 Wheat. 188. “But it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.” Fletcher v. Peck, 6 Cranch, 87, 128.

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 *596 be maintained. It necessarily follows that the authority of the legislature, in the exercise of the taxing power, to prescribe all appropriate and needful regulations for the selection and assessment of those only who will be productive taxables, is paramount to any alleged right of the unproductive citizen to be assessed. When section 1 of article 2 of the constitution vested the taxing power in the general assembly, and gave to the legislature the general power, and enjoined the duty, to provide for the raising annually, with certainty and regularity, of needful revenue for the support of the several county governments, it also gave by implication every particular power necessary for the exercise of the one, or the performance of the other.

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 1831, 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 test of the capacity of a person to exercise the right of a voter. If a person has no property, you can, by our laws, tax his capacity. If he has neither property nor capacity to be taxed, he ought not to be suffered to dispose of your rights. The tax is the test of capacity. * * * The principle of the constitution is this: You shall not vote unless you are taxed.” Harker's Debates, Delaware Convention, 1831, p. 18. Similar views being expressed by Mr. Clayton and others, the principle was adopted by the convention, and imbedded in our present constitution. In view of this convincing testimony of the authors of our constitution, and of the additional reasons above stated, it does not seem reasonable to conclude that the said language of section 1, art. 4, can be recognized judicially as an implied inhibition of the enactment by the legislature of the said provisions of the acts of 1873, as regulations appropriate and essential to the effectual exercise of the taxing power.

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 its intent, divides all citizens of the state into productive and unproductive classes of taxables, for the purpose of assessment and taxation, and empowers the legislature to select the productive, and to reject the unproductive, class, as essential to the fulfillment of this purpose. In accordance with this constitutional purpose, said provisions were enacted. Consequently, if they authorize the assessment of the productive, and forbid that of the unproductive, poll taxables, they are not prohibited, but authorized by the constitution to do so. Also, if they do not operate similarly towards property holders and non–property holders, it is not because of any invidious discrimination between them created by said provisions. It is because of the difference of condition and circumstances existing between them. All citizens, except minors and female citizens, who own property, are subject to poll–tax, as well as non–property holders. Again, said enactments do not exclude from assessment as a punishment or forfeiture for crime, but to prevent a deficit. Nor is their purpose to compel payment of his tax by disfranchising the delinquent taxable. It is to show that he is incapable of paying a tax, and therefore unproductive as a taxable, and that the assessment of him, and those in like condition, will produce a deficiency of revenue.

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 *597 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 each other.” On the contrary, their enactment appears to have been clearly within the constitutional power of the legislature, as an appropriate and legitimate exercise of the taxing power. Being so, even though they may be unwise in policy, or defective and inefficient for the purpose designed in their enactment, the resort, for their annulment or amendment, must be, not to the courts, but to the representatives of the people, or, that failing, to the people themselves. The courts cannot annul these enactments, but they can and will enforce the penalties provided for their violation whenever any infraction thereof is properly presented and duly established.