Board of Assessment Review of New Castle County v. Silverbrook Cemetery Co.
This text of 378 A.2d 619 (Board of Assessment Review of New Castle County v. Silverbrook Cemetery Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinions
(for the majority):
In these tax assessment cases, the main issue in this consolidated appeal is whether Article VIII, § 1 of the Delaware Constitution1 empowered the New Castle County Council to repeal by ordinance property tax exemptions previously created by the General Assembly. The Superior Court held that it did not. See 355 A.2d 908. We affirm.
I.
These cases arise from the tax assessments of three cemetery properties made subsequent to the passage of New Castle County Ordinance 74-61,2 a 1974 enactment [621]*621establishing a comprehensive schedule of property tax exemptions for the County. Appealing the assessments to the County Board of Assessment Review, the three owning-corporations (hereinafter “Cemeteries”) claimed statutory exemption under 9 Del.C. § 8104.3 The Board rejected the claims, concluding that the tax status of the Cemeteries was governed by the Ordinance rather than § 8104, and that the Cemeteries were disqualified for exemption thereunder because they were profit-making operations.
On appeal, the Superior Court reversed the Board holding that § 8104 governed, and remanded for the Board’s determination the question of whether the Cemeteries met § 8104 qualifications. See Silverbrook Cemetery Co. v. Board of Assessment Review of New Castle County, Del.Super., 355 A.2d 908 (1976). The Board appeals.
II.
The Board contends that the 1971 amendment of Article VIII, § 1, when implemented by Ordinance 74-61, impliedly repealed § 8104 and thereby rescinded the Cemeteries’ tax exempt status which had existed for decades under § 8104. Basically, the County contends that two legislative purposes4 can be discerned from the revision of Article VIII, § 1: (1) delegation to the Counties of the authority to repeal prior acts of the General Assembly creating tax exemptions; and (2) delegation to the Counties of the exclusive authority to create all future property tax exemptions. We agree with the second, but not the first.
Unquestionably, the 1971 Amendment of Art. VIII, § 1 delegated to the Counties, prospectively, the exclusive authority to grant property tax exemptions, a power which had been theretofore exercised by the General Assembly. But there is no grant to the Counties anywhere in Art. VIII, § 1, expressed or implied of a retroactive power permitting a repeal of prior acts of the General Assembly such as § 8104. On the statute books today, § 8104 stands unrepealed by the General Assembly and unquestioned by the codifiers. It is noteworthy that the County withheld any action under the 1971 Constitutional Amendment until 1974.
The law does not favor repeal by implication. See, e. g., Mayor & Council of Wilmington v. State ex rel. DuPont, Del. Supr., 57 A.2d 70, 79 (1947); Kelley v. Mayor & Council of the City of Dover, Del.Ch., 300 A.2d 31 (1972). Rather, there is a presumption favoring the consistency of legislative enactments. Delaware Rating Bureau v. Gordy, Del.Ch., 213 A.2d 706, 709 (1965). The result is the rule that the doctrine of implied repealer will apply only if an “irreconcilable inconsistency” exists between preexisting and subsequent enactments, and then only to the extent necessary to give meaning and effect to the latest enactment. See Mayor & Council of Wilmington v. State ex rel. DuPont, supra at 79; Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed. 2d 290 (1974). Applying the “irreconcilable inconsistency” standard, we conclude that no [622]*622such repugnancy exists between Art. VIII, § 1 and § 8104. The language of Article VIII, § 1 fails to “clearly and unmistakably” evidence a purpose to permit repeal of a pre-existing State statute by a County ordinance. Sayers v. Wilmington & N. R. Co., Del.Super., 49 A. 931 (1901). If this had been the purpose of Art. VIII, § 1, and if it had been intended to “wipe the slate clean” of the many exemptions accumulated over the years within § 8104 by granting to the Counties the erasing powers, it would have been easy for the drafters to have expressly provided therefor. It is not reasonable to assume, in our opinion, that two successive General Assemblies intended to delegate a statute-repealing power to a subordinate legislative body without explicitly providing therefor. The delegation of such power by a senior legislative body to a junior legislative body is too rare to be founded upon implication.
Accordingly, we agree with the Superior Court that Art. VIII, § 1 granted to the County Council a prospective power only, and that the Cemeteries’ exemptions created by 9 Del.C. § 8104 were not repealed by Ordinance 74-61.
III.
By cross-appeal, the Cemeteries contend that the Superior Court erred in remanding the cause to the Board for consideration of the tax exempt status of the Cemeteries under the qualifying provisions of § 8104. See 355 A.2d at 911.
It appears that the remand went beyond the scope of the appeal to the Superior Court. The litigation had been confined from the outset to the validity and effect of Ordinance 74-61. The question of the § 8104 eligibility of the properties involved was not raised until late in the Superior Court proceedings; it was not litigated before the Board.
We conclude, therefore, that the scope of the litigation should not have been enlarged by the Superior Court’s remand.
‡ ⅜ * * ⅜ *
Affirmed as to the inapplicability of the Ordinance; reversed as to the remand.
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378 A.2d 619, 1977 Del. LEXIS 735, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-assessment-review-of-new-castle-county-v-silverbrook-cemetery-co-del-1977.