Biggs v. Buckingham

6 Del. Ch. 267

• Court: Court of Chancery of Delaware
• Decided: March 15, 1892
• Status: Published

Opinion

The Chancellor.

I have stated above all the material portions of the bill of complaint and the two answers thereto respectively, so that there may be no mistake or uncertainty in respect to the reasons governing me in the conclusion to which I have arrived or in the decision I may make.

If the recital or analysis of the provision of the bill and answers have been unduly long or apparently prolix, it is better to err in these respects, than to be wanting in a due and careful consideration in respect to the matters submitted for my consideration.

We are all liable to err, however desirous we may be to be right. He is fortunate who after the most careful study and consideration is assuredly right and has a consciousness of duty carefully and conscientiously performed, I would that the duty of deciding the questions involved in the controversy arising in this ease could have been imposed upon others, and not upon myself. Hot that I wish or desire to avoid the discharge of any duty imposed upon me by reason of my official position, but it is not unreasonable to have wished that the performance of this duty might have devolved upon others abler and more competent to perform it than myself. But it was said, in the course of the argument, and it may be true, that no tribunal is existing in the State for the decision of the matters in controversy, other than that of the Court of Chancery. I therefore assume the duties of my position without fear, favor, reward, or the hope thereof.

The community constituting the inhabitants of the County of Hew Castle may have allowed itself to have been wrought up to a state of excitement and interest, unreasonable and unnecessary, but we all must indulge the hope that such excitement, if it exists, will pass away, and the public mind and public feeling become calm and serene when time has given an opportunity for rational consideration and calm reflection.

I shall not notice that portion of the bill of complaint which states that William P. Biggs is a citizen and taxable duly assessed, of the County of Hew Castle, because it does not appear if he is such citizen and taxable that lie has heen taxed beyond his proportion of the taxes to which other citizens and taxables are subject or liable. But the complainant shows that he is clerk of the peace of the said county and says that the functions, duties, and responsibilities of his said office are about to be impaired, invaded, and overthrown by the threatened and impending action of the said Levy Court commissioners in unlawfully altering and reducing the number of names upon the assessment list so that it would be morally and legally unjust and improper for the said clerk of the peace to join in the certification of the said lists when names have been so omitted therefrom, and the said clerk of the peace would also become personally liable to heavy legal pecuniary penalties for certifying and furnishing duplicate lists to the county officers for collection from which names on the assessment lists when returned by the assessors had been stricken off by the said action of the said Levy Court. Now it is admitted by both answers filed in this cause that the said William P. Biggs is clerk of the peace of New Castle County, and clerk of the Levy Court of said county. There is n o proper plea to the jurisdiction of this court to hear and determine the matters in controversy in this cause for the allegation contained in the thirteenth and concluding paragraph of answer of the majority of the Levy Court, that these defendants are advised and believe that the said complainant, William P. Biggs, has no right to bring or maintain this suit as a citizen, taxable, and resident of New Castle County, and as clerk of the peace for said county or in any of said capacities, either in his own behalf, or in behalf of other taxables, citizens of said county, does not raise the question of jurisdiction in this court to hear and determine the matters in controversy in this cause. But only whether the complainant in any or either of the capacities in which he sues has a right to bring and maintain this suit.

Now 1 have already said that I shall not consider the question whether as a citizen and taxable of New Castle County he is liable to the payment of a tax because his liability in this respect is the same as that of other taxable citizens of said county. On this ground, therefore, the complainant would have no right to maintain his suit for relief common alike to himself and all other citizens and taxables of said county. But it is a very different question whether the complainant being clerk of the peace of New Castle County and as such being clerk of the Levy Court of such county has a right to maintain this suit, and has the right to invoke the equitable interposition of this court.

If the functions, duties, and responsibilities of his office of clerk of the peace are about to be impaired, invaded, or overthrown by the threatened and impending action of the said Levy Court commissioners in unlawfully altering and reducing the number of names upon the said assessment lists so that it would be morally and legally unjust and improper for the said clerk of the peace to join in the certification of the said lists when names have been so omitted therefrom ; and if the said clerk of the peace would also become liable to heavy pecuniary penalties for certifying and furnishing duplicate lists to the county officers of collection from which names which were on the assessment lists when returned by the assessors had been stricken or removed by the said action of the said Levy Court,—a very different question arises from that under the question whether as a citizen and taxable he is liable or not hable for his proportionate share of taxes levied upon all other citizens and taxables for the support of the government of New Castle County.

Considered in this view, the complainant has a right to bring and maintain his suit in this court, if the allegations of his bill in this respect are true.

The two main grounds of contention on the part of the defendants and which were urged at the hearing at great length and with much ability and vigor are : First, that the power given to the Levy Court in sections 9 and 12 of chapter 8 of the Revised Statutes to “ correct and add to the assessments returned” and to make “ additions to and corrections of the assessment list ” includes the power to strike from the list the names of any that they may judge unlawfully thereonsecond, that the inhibition contained in the 6th section of the Act of 1873 as amended by Act of April 3, 1881, vol. 16, Laws of Delaware, page 306, to wit, “ 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 legally appearing thereon,”—by implication gives to the Levy Court the same power and jurisdiction.

A careful examination and consideration of the statutes brings one to the conclusion that the power “ to correct,” is never given in connection with the power “ to take off,” names from the assessment lists.

The power “ to correct ” is given to the Levy Court in connection with the power to add to the assessment lists and is always in context with the valuation of property the increasing or diminishing the amount of the assessments and the “adding” to the lists the names of those who have been omitted and determining their assessments.

When the Legislature has provided for the dropping or taking from the assessment the names of any persons that should not be thereon it has shown that it knew how to use apt and express words for that purpose. And it has always indicated with precision the very names which should be taken off and never left it to any direct provision of law to the discretion judicial or otherwise of any person or body of persons to determine what names should be dropped from and what should remain on the •assessment list and that this should be so is easily seen when we consider how serious the function of taking the names of persons from the assessment list may be in relation to the elective franchise, more serious far than the function of adding names to such lists. Because if a name should be added improperly, it can only give such person the right to vote if he is qualified to do so under the constitution and under the safeguards thrown around the exercise of the elective franchise by law; but if a person’s name should be improperly dropped his right to exercise his constitutional elective franchise is entirely extinguished.

Now it would not be expected that the Legislature animated with a just regard of the fundamental rights and liberties which they are bound to protect, would in the view of the matter carefully provide for and protect the rights and duty of adding names to the assessment lists, and then leave it to the general power of correction given to the Levy Court to drop names at their discretion.

We do not think the Legislature have so acted, but as they have only given the power to add names by express language to that effect, so they have only given the power to take off names by the use of language likewise explicit and express.

We do not think, therefore, the words “correct and add ” and “ make additions and corrections” in the ninth and twelfth sections of chapter 8 of the Revised Statutes or wherever else they may occur, are to be taken in this •case as equivalent to the words “ take off and add ” or ■“ make additions to and omissions” from the assessment list.

Now as to the second ground for the contention that this power and jurisdiction to take names from the assessment list belongs to the Levy Court—the majority of the defendants say that it is conferred by implication by the insertion of the word “legally” in the sixth section of the Act of 1881. We quote again the part of said section referred to—“Section 6. Be it further enacted as aforesaid 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 legally appearing thereon.” Vol. 16, Laws of Delaware, page 306.

The Levy Court of Hew Castle County is not, in any legal proper sense of the term “court,” a judicial body known to the Constitution as part of the judicial system of this State, and possesses no judicial power as recognized in such Constitution or judicial system. It is composed of a certain number of freeholders of the county who exercise some few quasi judicial functions and powers, but for the most part powers and functions which are no greater or essentially different from those purely ministerial. The powers and functions of the Levy Court are derived from and are clearly defined in the Acts of' the Legislature. They are truly statutory. The Levy Court possesses no inherent or original powers. Its-functions and powers are defined and limited by statutory law. They are thus entirely limited and circumscribed?

Let us consider the state of the law in regard to this-matter of assessments and the duties of assessors and levy courts as prescribed thereby.

The office of assessor is created by law, and the duties, attaching to it are carefully defined and described. He is elected in and for a comparatively small district, presumably from his knowledge and acquaintance of and with persons and property therein.

He must in the first instance act on his own knowledge and information in making his lists and valuations, and then he must expose the same in five public places in his district for examination, and afterwards he must sit at a convenient place and times prescribed by law, to place upon the lists those who in the manner provided by law prove their right to be so placed. The provisions of law prescribing his duties are exceedingly precise and stringent, and if he obeys them, the lists made by him will be as accurate and fair as human agency can make them.

He is then required to return them to the Levy Court, and so careful is the law that every one who has the right to be assessed shall have the opportunity that it again provides in the express words for the Levy Court adding to the lists the names of any that may have been omitted by the assessor, and prescribe with particularity for the mode and manner in which such additions shall be made. But we again note that there is no authority expressly given to the Levy Court, or to any body 'to take from the lists so returned any name whatever and no method or manner of doing so is described.

At the time of the passage of the Act of 1881, there had been for eight years on the statute books a law that required the collectors of county taxes in the several counties of the State to give notice of sittings at certain times and places for the collection of taxes. And that when any such collectors should make return at the proper time to the Levy Court of a delinquent list of poll taxables accompanied by oath that he had conformed to the requirement of the law stating therein specifically, it should be the duty of the Levy Court to make allowance to said collector of delinquents so returned by him, and that “the names of such delinquents should be dropped from the assessment lists 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.” The ninth section of the Act of April 9, 1873, also provides “ that it shall not be lawful for the 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 delinquents was made by the Levy Court.”

So that at the time of the passage of the Act of 1881" the law pointed out with exceeding precision the names which should be dropped by the Levy Court from the assessment list, and which during a prescribed period should not legally appear thereon. It is to be observed that the duty enjoined on the Levy Court to drop these names is ministerial and not in any.sense judicial. The names to be dropped are a matter of record to the Levy Court. They do not have to be ascertained dehors the record. All the names on the designated record must be dropped. The Levy Court has no discretion to drop some and retain others.

Mow let us consider what the force and effect of the word “legally” in the sixth section of the Act of 1881 is, and to what it has relation. Manifestly it would seem to the provisions of law just quoted. Suppose a name had "been returned on his list by the assessor which had been within the twelve months returned as delinquent by the collector, and had in obedience to law been dropped by the Levy Court from the assessment list; the law-forbade the assessor to add that particular name to his list, and declared that it should not be placed thereon by anybody. Clearly such a name did not “legally” appear thereon. The law itself points out and designates the very names which cannot thus “ legally ” appear on the assessment—nothing is left to the judicial determination of any one in order to ascertain them. But this cannot apply to names which- some person or persons, no matter how responsible, may aver to be on the lists illegally, by reason of some alleged transgression of the law by the assessor, but which cannot be determined except by judicial inquiry. The presumption of the law is that the assessor has performed his duty, and when he returns his assessment at the time and in the manner provided by law, the names thereon legally appear, unless the law itself makes the contrary appear, by pointing out ascertained names that are forbidden to appear thereon. To drop these involves only the performance of a ministerial duty. But to drop those which the answer of the majority of the Levy Court declares they intend to drop, involves a very different kind of duty, to wit, a quasi judicial one. That this is true, we need only refer to paragraph eleven of the answer of a majority of the defendants, which states explicitly and frankly the power claimed by them and what, if not restrained, they intend to do in this regard. It is as follows:

“11. These defendants further answering say, that since Tuesday, the second day of February, instant, sundry reputable and responsible citizens and tax-payers of Hew Castle County have openly and publicly charged that a very large number of names appearing upon some of the said assessment lists returned by said assessors to the said Levy Court, on the second day of February, instant, were unlawfully placed and do not legally appear upon said assessment lists, and that the said names, so unlawfully placed upon said assessment lists, include a large number of fictitious names placed upon said lists in direct violation of the statute of this State in that behalf, and also a large number of names of poll taxables who were not residents of the hundreds or assessment districts from which they were respectively returned by said assessors as assessed, placed upon said lists in direct violation of the statute of this State in that behalf, and also a large number of names of poll taxables already assessed and standing upon the assessment lists of said hundreds, or assessment districts respectively, and unlawfully placed upon said assessment lists returned on the second day of February, instant, as aforesaid; and also a large number of names of poll taxables unlawfully and fraudulently duplicated upon said assessment lists, returned as aforesaid. That they are now engaged in the examination of said assessment lists so returned as aforesaid for the purpose of ascertaining whether or not names appearing upon said lists have been unlawfully placed thereon as aforesaid; and these defendants as constituting a majority of the said Levy Court propose and intend, should they be satisfied upon due examination that any names have been so unlawfully placed upon said assessment lists so returned as aforesaid and do not legally appear thereon, to cause the same to be stricken from said lists, not by obliteration, erasement, defacement, or mutilation of said lists or any part thereof, but by the placing of a distinguishing mark upon or opposite to such name as shall be stricken from said, lists.

Here is a claim of a judicial power of a very high and important character. Ho mode is prescribed in the law for the exercise of this power. They may have evidence or not as they please, they may or not rest satisfied with the charges, and believing them to-be true proceed forthwith without hearing or notice to drop any or add the names thus inculpated. There is no instance of any previous or subsequent legislation undertaking to grant such a power. I need not dwell upon the importance and value of the rights it proposes to deal with. If it exists it can make the lists of persons qualified to vote what the majority of the Levy Court pleases ; surely the assertion of a power so far reaching as to be able to overthrow all the security of the elective franchise should not be made except upon direct and express authority of the Legislature. But there is no direct or express authority anywhere to be found in the statutes of the State for such a monstrosity of assumption. At best it is claimed to rest upon the “ implication ” arising from the use of the word “legally” in the sixth section of the Act of 1881. The .argument is that inasmuch as the Act says that it shall not be lawful for the Levy Court or any member thereof to take from the assessment returned by the assessor the name of any person “ legally appearing thereon, ” that therefore the Levy Court may take from such assessment the name of any person which they may judge to be there illegally—without pausing now to repeat what we have before said that such a power must rest upon positive and direct expression of the legislative will and not upon implication—we observe that if the implication “ legally ” clothed the Levy Court with this high judicial power, it may be well argued that it clothed with like power “ any member thereof.” The language being that it shall not be lawful for the Levy Court or “ any member thereof ” to take from the assessment lists the name of any person legally appearing thereon. This of course might be said to be monstrous, but it serves to show the danger of arguing the existence of the judicial power from anything except the express grant of legislative ■enactment.

The Law of 1873 in regard to the return by the collectors of delinquent poll taxes and their allowance by the Levy Court and the requirement that the names of such delinquents be dropped by the Levy Court from the assessment and that they should not be put on again by the assessors for the period of twelve months has been repealed by the Act of May 13, 1891, and May 15,1891.

The conclusion is therefore reached that the defendants the members of the Levy Court of Hew Castle County, are not authorized by law to drop from the assessment lists returned to it by the several assessors of said county any names appearing thereon, or to do any of those things which in the eleventh paragraph the majority of said court say they propose and intend to do. It seems clear, therefore, from the best consideration which I have been able to give to the subject in the brief period in which it has been considered by me that the clerk of the peace of Hew Castle County has a special interest in regard to the duties of his office as imposed by law in the integrity of the assessment lists as they left the hands of the assessors.

“ It is a monstrous proposition ” said Mr. Bradford in his argument in this cause “ that the Levy Court clothed with this power had not the right for the purpose of settling a true basis for the adjustment of the tax rate to strike from the assessment lists required to be submitted to it for its revision and correction fictitious «names and other names illegally placed thereon.” How much more monstrous is the proposition that the Levy Court has the power to strike from the assessment lists returned to it or the clerk of the peace the names of persons on the assessment lists so returned when the clerk of the peace is by law required to place upon his duplicates the names returned by the assessors and as returned by the assessors. This is the question to be decided on the statute as it is and on this alone.

The clerk of the peace is bound to obey the law as it is and not as others by implication would have it to be. Fortunately for the people of the whole State the law by which they are governed is clearly expressed and not the subject of implication merely. This express law of the State would subject the clerk of the peace to pecuniary penalties if he fails to observe and obey it. What would be the consequences if the proposed action of the Levy Court was to be adjudged legal, and the Levy Court of Hew Castle County be adjudged to possess the power which they claim in respect to the assessment lists as returned by the assessors, and what would be the consequences, if their example was followed in the other counties of the State, it is not for me to determine or even to imagine.

This opinion had been dictated thus far when my eye almost accidentally fell upon the fifth paragraph of the answer of the members of the majority of the Levy Court. I. do not recollect that this paragraph was particularly discussed if discussed at all, in the argument of this cause, and my attention to it may not have been called in the argument. Let us consider it. It is in these words:

“ These defendants do not admit, but on the contrary deny, the truth of the allegations contained in paragraph 5 of said bill of complaint in manner and fo.rm as the same are therein set forth; and they further deny that the said Levy Court commissioners since the return of the said assessment lists as aforesaid, have unlawfully or wrongfully obliterated, erased, or stricken off the names of any persons appearing on the said lists returned by the said assessors as taxables of the said county.

“And these defendants in further answer to the allegations contained in said paragraph five aver that whatever names have been stricken by the said Levy Court commissioners- from the said assessment lists as returned as aforesaid, were names- illegally placed thereon, and that the said Levy Court commissioners have not nor have any of them obliterated or erased any of the names so stricken from said lists.”

What is the meaning of this paragraph ? Whatever names say the majority of the Levy Court have been stricken by the said Levy Court commissioners from the said assessment lists as returned as aforesaid were names illegally placed thereon and that the said Levy Court commissioners have not nor have any of them obliterated or erased any of the names so stricken from the said lists. Is or is not this an admission that the Levy Court commissioners have stricken some names from the said assessment lists as returned without stating what or how many? If they have the question whether the names were illegally placed thereon is not a question for the Levy Court commissioners to decide themselves but one for this court to decide. It is not for the Levy Court commissioners to assume that such names were illegally on the assessment lists as returned as aforesaid and that therefore they had the right to strike them therefrom, for that is one of the points of contest or controversy in this cause. If these names were on the assessment lists when returned to the said Levy Court then this court has already indicated the opinion that they could not be stricken therefrom by the Levy Court commissioners. The answer in the sixth paragraph is also dubious and uncertain. The majority of the members of the Levy Court therein say “ that they do not admit, but on the contrary deny, the truth of the allegation contained in paragraph' six of said bill of complaint in manner and form as the same are therein set forth and they further deny that it was or is the intention or purpose of the said commissioners of the said Levy Court to change or alter the said lists or any of them by arbitrarily and njyiihout warrant ■ojL law striking off or expunging therefrom any names or name whatsoever appearing thereon. How this is not the question in this case. The question is, Have the Levy Court already stricken off or is it the intention or purpose of the said commissioners of the said Levy Court to change or alter the said lists or any of them by striking off or expunging therefrom any name or names whatsoever appearing thereon at the time when the same were returned to the Levy Court. If they have stricken off or expunged from the lists so returned or changed or altered the said lists by striking or expunging therefrom any names or name whatsoever appearing thereon, the charge of so doing is not satisfactorily answered by saying that said action was not done arbitrarily or without warrant of law, for that question is for this court to decide and not for these defendants to determine for themselves when the propriety and legality of such action is the matter in controversy in the cause. It won’t do for a majority of the Levy Court to say as they have done in their answer to this paragraph of the bill that they, as constituting a majority of the said Levy Court, intend to cause to be stricken from said assessment lists so returned as aforesaid such names and only such names as the said Levy Court, while engaged in the discharge of what they term legal duty imposed upon it of revising and correcting lists, shall be satisfied on due examination were unlawfully, and do not legally appear, thereon. For the very question to be decided is whether the lists so returned by the assessors to the Levy Court can be revised and corrected by striking therefrom names which were thereon when returned to the Levy Court and before the process of revising and correcting in said answer mentioned was iindertaken or performed. In like manner the seventh paragraph of the answer of the majority of the members of the Levy Court might be analyzed and its true meaning discovered. Whether the number of names upon the said lists of persons assessed as taxables has or has not been reduced by the members of the Levy Court making their answer to the bill of complaint since the lists on which said names appeared were returned to the Levy Court is the question, and whether there was legal authority for the reduction of the number of names iipon the said list of persons as taxables is more pertinently the issue involved. But the character of this answer already sufficiently appears by the examination and analysis which I have given it, and further time devoted to the performance of such duties may seem to be needlessly spent and such examination appear needlessly prolix and uninteresting.

During almost fifty years I .have been a member of the bar of the State of Delaware. In early life 1 was-counsel for the Levy Court in the county -in which I then resided, and during that period of time I have' never known and I have never heard, until the argument of this case, the course which a majority of the Levy Court of New Castle County say in their answer they intend to pursue, pursued by the Levy Court in any county of this State. It is too late, therefore, for me' officially to recognize its propriety, lawfulness, or judicially to give countenance thereto.

Finally I remark that the Levy Court of New Castle County is not, in the strict or proper sense of that word, a court, but is a body of commissioners elected and constituted as in the statutes of the State is prescribed, with limited and well-defined powers and duties; which powers and duties are in some respects, and in some respects, only, quasi judicial, but in most respects ministerial only.

I, therefore, adjudge and decree as follows:

And, now, to wit, this second day of March, A. D. 1892, it appearing to the Chancellor that William P. Biggs, being the clerk of the peace of New Castle County and ex officio clerk of the Levy Court of New Castle' County, has a right to bring and maintain his suit in this, court, for the causes alleged and existing, and is entitled to a decree of this court for his protection as such clerk of the peace and clerk of the Levy Court, the Chancellor, after hearing the arguments for the complainant and respondents, respectively, and after considering the same, doth see fit to order, adjudge, and decree, and doth hereby order, adjudge, and decree, that Richard G. Buckingham, James H. Clark, Andrew S. Eliason, Isaac N. Grubb, Paul Gillis, Henry D. Hickman, David P. Hutchinson, John W. Jolls, Samuel Kilgore, Robert B. Simpler, and Bobert Sutton, Levy Court commissioners for Hew Castle County, be and they are hereby restrained and enjoined from striking from the said assessment lists made and returned when and as stated in said bill of complaint to the said Levy Court by the said assessors named in said bill, any names or name whatever appearing upon the same and returned as taxables of the said county; and that any other names which have been added to the said lists otherwise than at the time and place and in the manner provided by law in that behalf since the said return of the said assessment lists be and the same are hereby ordered to be stricken from the said lists; and it appearing to the Chancellor that Bichard G. Buckingham, James H. Clark, Paul Gillis, David P. Hutchinson, John W. Jolls, and Bobert B. Simpler, a majority of the members of the said Levy Court, did and performed, or threatened and intend to perform, the acts, deeds, and things complained of against the protest of Andrew S. Eliason, Isaac H. Grubb, Henry D. Hickman, Samuel Kilgore, and Robert Sutton, the minority of the said Levy Court, who have in substance confessed the t bill, it is further ordered, adjudged, and decreed that the said Richard G. Buckingham, James H. Clark, Paul Gillis, David P. Hutchinson, John W. Jolls, and Robert B. Simpler, being a majority of the said Levy Court, pay the costs in three months or attachment.