Frieszleben v. Shallcross

19 A. 576, 14 Del. 1, 9 Houston 1, 1890 Del. LEXIS 1

• Court: Supreme Court of Delaware
• Decided: January 29, 1890
• Status: Published

Opinions

Comegys, C. J.

The questions presented in the arguments of this case by the counsel of the plaintiff are many; but they are all within the scope of .those made by the case stated, and questions reserved thereon, which, in effect, are whether the legislation of this state in 1873, set forth in counsel’s briefs, is a valid exercise of legislative power; and, if not, whether the defendants are liable to the plaintiff in damages in his action.

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

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

It is a great mistake to suppose that the first law for a poll-tax, as alleged by plaintiff’s counsel in argument, was the act of 1796. The fact is that before William Penn came to America, to take possession of the territory granted him by Charles II, (March, 1681, ) he promulgated a “ frame ” of government for his province of Pennsylvania, and a Code called “ Laws Agreed upon in England,” which latter defines those who are to be considered as freemen to use the ballot. In the language of the “ frame,” by the second clause or paragraph, the freemen were to choose the provincial council, and, by the fourteenth, the members of the general assembly. There is, however, no definition therein of a “freeman.” The date of this is the 25th of April, (then the second month,) 1682. On the following 5th of May, the latter rescript was passed, which in the second clause defines the term “ freeman,” used in the former and in the first clause of the latter, in the following words: “ Second. That every inhabitant of said province [Pennsylvania] that is or shall be a purchaser of one hundred acres of land, or upwards, his heirs and assigns, and every person who shall have paid his passage, and taken up one hundred acres of land at one penny an acre, and have cultivated ten acres thereof, and every person that hath been a servant or bondsman, and is free by his service, • that shall have taken up fifty acres of land, and cultivated twenty thereof, and every inhabitant, artificer, or other resident in the said province that pays scot and lot to the government, shall be deemed and accounted a freeman of said province; and every such person shall be, and may be, capable of electing, or being elected, representatives of the people in provincial council or general assembly in the said province.” These documents are to be found in a compilation of the laws established by the Duke of York, and by the Penn government, also, made by authority of the state of Pennsylvania, labeled “Duke of York’s Book of Laws, 1676-1682” and the “Charter and Laws of the Province of Pennsylvania, 1683-1700,” pp. 93-101.

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

In chapter 127 following, it is enacted in these words: “ And, to the end that due provisions be made to defray the requisite charges incident to the public business and service of this province, and territories thereof, be it enacted,” etc., “ that the charges of each county shall be made up in open court by the respective magistrates thereof; and" that every such court shall have, and' hereby hath, power to assess and lay such taxes upon the county as shall defray the same, so that it be equal, and according to proportion ; and that the one-half of the said tax to be paid shall be raised upon land, the other half by the poll, on the male from sixteen to sixty years of age, and that all such persons who hold land within the province and territories thereof, and do not reside therein, and so incapable of giving that attendance, and yielding that service, to the public, as those that live therein, shall pay to all public taxes for such lands so held by them one-half more than residents pay for the same portion.”

On the 20th of October, 1691, William and Mary took the .government of the province and territories (the Delaware counties) into their own hands. In this state, on dispossession of Penn, they appointed, as captain general and governor, Benjamin Fletcher; one of the first acts of whose administration was to procure the passage of a law for granting a penny in the pound to the sovereigns, towards the support of the government under him. The fourth clause of the act provides that the tax shall be a charge upon real and personal estate for a year only, and then declares that “ all freemen within this province and territories as have been out of their servitude by the space of six months, and shall not be otherwise rated by this act, nor worth one hundred pounds, shall pay unto the use aforesaid the sum of six shillings per head, with a proviso that our chief proprietary and his late deputies shall not be assessed or otherwise chargeable by virtue of this act.” Id. 221, 222. By section 17 of this act, (the law about counties levies,) it is provided that the grand jury shall present any sum necessary to be raised, either for the paying of any public debt, or other occasion for the public utility of the county, “and the justices [of the quarter sessions] to make the rate or assessment, which shall be raised in the same manner as moneys are by the sessions agreed to be raised for the support of the government, viz., after the rate of one penny per pound [upon property] and six shillings upon the poll.” Id. 233.

William Penn was restored to the government of his province and territories by William and Mary in the sixth year of their reign, (21st October, 1693,) and appointed his nephew, William Markham, his deputy, who, with the advice and consent of the council and representatives of the province and territories, passed an act or body of laws, the first clause of which, after the preamble defines the term “ freemen,” (that is, those who were to vote for council and assemblymen,) as follows: “ That no inhabitant of this province or territories shall have right of electing or being elected as aforesaid unless they be free denizens of this government, and are of the age of twenty-one years of age or upwards, and have fifty acres of land, ten acres whereof are seated and cleared, or be otherwise worth fifty pounds lawful money of this government, clear estate, and have resident within this government for the space of two years next before such election.” Id., 247. By this law, Penn made the electoral qualification one entirely of property. In the second chapter of the enactment is il An act for raising the rate of one penny per pound, and six shillings per head, upon such as are not otherwise rated thereby, to be employed by the government for the time being as is hereinafter limited and appointed •” the enacting section of which fixes the rate for housekeepers, and then provides that all males within this province and territories of this act who have been free of their servitude by the space of six months, and shall be above the age of 21 years, being worth £72 and upwards, shall be assessed and pay after the rate of 1 penny per pound clear estate as aforesaid, and that such of the said males only as be not worth £72 shall pay six shillings per head. In 1704 the separation between the territories and the province took place; and thereafter they had separate legislative bodies, though under the lieutenant governors of the Penn proprietorship of the province as long as the rule of the family lasted, that is, down to the Revolutionary War. The first declaration of those entitled to vote, of electing and being elected, after the separation was made by an act of the 7th George II., (1736,) passed by the then Lieut. Gov. Patrick Gordon, “ by and with the advice and consent of the representatives of the freemen of the said counties, [New Castle, Kent and Sussex on Delaware,] in general assembly met,” etc., which in its second section confines the suffrage to property holders by this language : “ Provided, always, that no inhabitants of this government shall have right of electing or being elected as aforesaid unless he or they be natural born subjects of Great Britain, or be naturalized in England, or in this government, or in the province of Pennsylvania, and unless such person or persons be of the age of twenty-two years or upwards, and be a freeholder or freeholders in this government, and have fifty acres of land or more well settled, and twelve acres thereof cleared and improved, or be otherwise worth forty pounds lawful money of this government clear estate, and have been resident therein for the space of two years before such election.” 1 Laws Del., 146.

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

From this review of the law which has always prevailed here in regard to the qualification of voters, two things seem to be clear, —that is, that the right to vote was conditional altogether upon the payment of taxes previously assessed, (“scot and lot,” as tersely expressed in the homely but perfectly well understood language of the ancient enactments,) and that the poll-tax was adopted 100 years, at least, before 1797, for those who had no property. Under the old system, there could be no privilege of voting by any without payment of tax, without each man paying his part towards the support of government. The theory then was that no man should enjoy the privilege of voting for public officers unless he paid for it, by adding the requirement of tax upon him to the general concession for the maintenance of the state. The privilege was conditional upon his doing that in some form, voluntary or by compulsion. “ Pay your tax, and you may vote,” said the law; which shows that it was only upon compliance with a condition that a citizen could cast a ballot. All arguments, therefore, which are the offspring of any notion of inalienable right, sacred right, indefeasible right, have no place in this discussion. The right to vote was, in the old time as now, conditional upon several things,— citizenship, majority of age, payment of county rates and levies. It was and is but a privilege or right sub conditions; and those who fixed the terms of it were strangers to any other idea than quid pro quo,—“ scot and lot.” Such .modern ideas as manhood suffrage, (if by that be meant a suffrage because of full age,) ballot for all, and slavery without the ballot, were properly left to be evolved out of the consciousness of visionary theorists, with aspirations for a state of society dreamt of only by those who would substitute our poor humanity for the great creator.

The law of 7th George II., (1736,) continued, as that fixing the qualification of voters, until the constitution of the state, of 1792, was made; for that of the 20th September, 1776, (1 Laws Del. App., 83,) expressly provides that “ the right of suffrage in the election of members of both houses shall remain as exercised by law at present;” etc. Article 5. In the former the right is thus defined. Article 4, § 1: “ All elections of governor, senators and representatives shall be by ballot; and, in such elections, every white freeman of the age of twenty-one years, having resided in the state two years next before the election, and within that time paid a state or county tax, which shall have been assessed at least six months before the election, shall enjoy the right of an elector, and the sons of persons so qualified shall, between the ages of twenty-one and twenty-two years, be entitled to vote, although they shall not have paid taxes.” Const, 1792, (1 Laws Del., 38.) The latter clause of the article was a new feature introduced into the canon of electoral qualification. In the year 1831 a state convention was held to revise the constitution of 1792. By it, elections were made biennial instead of annual, and the electoral qualification was modified by this language: “ In such elections every free white male citizen of the age of twenty-two years or upwards, having resided in the state one year next before the election, and the last month thereof in the county where he offers to vote, 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; and every free white male citizen of the age of twenty-one years and under the age of twenty-two years, having resided as aforesaid, shall be entitled to vote without payment of any tax': provided, that * * * no idiot or insane person or pauper, or person convicted of a crime deemed by law a felony, shall enjoy the right of an elector,” etc. Rev. Code 1874, pp. xxxii., xxxiii. This change extended the time for payment of tax to two years before the election, to conform it to the biennial system of elections; allowing all men between 21 and 22, having the residential qualification, to vote without payment of tax, confined the tax to county rates, and excluded the insane, paupers, and persons convicted of felony. This constitutional qualification continues in force to this day,—nearly 60 years from the time of its enactment. Under the old system of taxation provided in the sixth section of the “ act concerning the levy court,” etc., (Hall’s Dig., 576,) the general, rate of persons and personal property continued for 6, and the assessment of real estate for 12 years. Afterwards the former was reduced to 4 years, (Rev. Code 1874, p. 85,) and by a subsequent amendment, that of real estate, which before had. been first 12 and then 8 years, was reduced to 4, also, (13 Laws, c. 294;) so that the assessments of persons and personal property and real estate, are now uniform as to duration.

By the law in force prior to the year 1843, upon the allowance by the levy court to a collector, in its settlement with him at th e March session, of a party upon his duplicate as a delinquent, the practice was to drop his name from the assessment list; and it remained off until the next general assessment of persons and personal property, when it was restored. This was in virtue of the rule that a condition once shown to exist is presumed to continue until the contrary be established. If the statute had not provided that there should be a general assessment of persons and personal property, (quoad ante,) the name would have remained off the list until the delinquent had himself applied to have it restored, which would not, of course, have been- done without some proof that the condition no longer existed; and, in accordance with this presumption, a collector was allowed two years to collect the taxes on his duplicate, (copy of the assessment list, with calculation of tax,) and no more. Then the tax was treated as extinguished entirely. Hall, Dig., 380. But it was discovered that collectors, in their zeal to promote the interest of the political party to which they owed their appointment, were in the habit, after the expiry of the two years, of allowing the taxes more than two years old of delinquents on their own sides, or on any other side, provided they would vote the ticket of the collector’s party, to be paid, with a view of qualifying them to vote. As the collector’s receipt was evidence of right to vote, there was no gainsaying it, without resort to the records of the levy court, which was impracticable. To prevent this fraud upon the election law, which contemplated, not the payment of taxes allowed as delinquent, and thus extinguished in fact, but payment of existing rates, the legislature, at the session of 1843, passed an act entitled “ An act to amend the election laws of the State of Delaware,” in the following words, (Act 9th, vol. 545:) “ Whereas, it is highly important to preserve the elections in their purity, and to secure the confidence of the people in the integrity of those who conduct them, therefore, * * * Sec. 2. And be it further enacted by the authority aforesaid, that, for the purpose of preventing frauds by the pretended receipt of old taxes, and by the antedating of receipts for tax, that no collector in this state shall collect any tax upon his duplicate after two years from the date of his waraant,. but that' after the lapse of two years from such date every such tax shall be extinguished, and no collector shall have power to give a receipt therefor. And it is hereby further enacted and declared, that every tax which shall have been returned and regularly allowed by the levy court as delinquent shall be, and the same is, utterly extinguished, and no collector, or other person in his name, shall have power to collect the same, or give a receipt therefor, and any receipt given for such tax shall be void; and if any collector shall receive any such tax, or give a receipt therefor, contrary to the provisions of this section, or shall fraudulently antedate or post-date any tax receipt, or shall use any other fraud in giving such receipt, he shall be deemed guilty of a misdemeanor, and, on conviction thereof by indictment, shall forfeit and pay to the state a fine of one hundred dollars, and shall also forfeit and pay to any person who will sue for and recover the same the further sum of one hundred dollars, with costs of suit. The levy court shall examine and settle the delinquent lists of each collector at its meeting in March every year, and make allowance of delinquents. Upon the allowance of any delinquency, the name of such delinquent shall be struck from the assessment list, and also from the collector’s duplicate, and shall not be again restored until the delinquent is again lawfully assessed. Sec. 3. And be it further enacted by the authority aforesaid, that the assessors for each hundred in this state, in the year eighteen hundred and forty-four, and in every year thereafter, shall make and complete the assessment for their respective hundreds by the fifteenth day of January, and shall, on or "before the twenty-third day of said month, publish, by posting in at least five of the most public places in such hundred, a list of the names of the persons assessed, arranged in alphabetical order, setting down separately the amounts assessed as real, personal, and capitation, or poll, tax, and carrying out the aggregate amount so assessed against each name, and shall at the same time, and at the same places, and in the same manner, give notice that they will attend at the place of holding the general election in such hundred on the last Saturday in said month, from the hour of ten o’clock a. m. until the hour of five o’clock p. m„, for the purpose of correcting any errors which may then be shown to him by any resident of such hundred in his assessment, and for the purpose of assessing any such resident as he may have omitted. And additions,to, and corrections of, the said assessment lists, may also be made by the levy court and court of appeal in session at any stated or regularly adjourned session of the said court before the first day of April in any year. Ho assessment shall be made after the last day of March, nor shall any alteration of the assessments be made after that time, except in the lawful allowance of delinquencies. If any assessor, collector, clerk of the peace, or other person, shall fraudulently add to, or take from, the said assessments, as finally settled by the levy court at its last session in March, such person shall be guilty of a misdemeanor, and, on conviction thereof by indictment, shall forfeit and pay to the state a fine of five hundred dollars. * * * ”

The preambles to the first and second sections show the motive and purpose of the legislature; the latter being that above ascribed to it. As corroborative of the allegation above made, that the payment of existing rates by a party offering to vote was contemplated, it is only necessary to refer back to the statute already cited from Hall’s Dig., 573, where, near the close of the fourth section, will be found this language in relation to the returns of the assessors of the assessments, correction of them by the court, etc.: “ And, in the year in which a general rate of persons and valuation of personal property only shall be returned, the list [assessment list] shall contain the names, in alphabetical order, of all the persons upon the assessment list of the hundred whose personal property shall be valued, or personal rate imposed; and such list shall specify the personal rate, and the number of slaves, and their valuation, and the valuation of the personal property, and the total amount of the rate and valuation, and in all other years [i. e., years other than those of general assessment of persons and personal property, then six years apart] the list shall contain only additions or alterations that shall have been made to or of the assessment list of the hundred,” etc. By the sixth section of the same act it is provided “ that the assessor of each hundred shall annually rate the persons of those liable to such rate, who have arrived to the age of twenty-one years since the making of the assessment of the preceding year, or who shall come to reside in the county, or who shall before have been omitted, and personal property acquired by bequest,” etc. Here there is no provision for the restoration of delinquents to the assessment list. Having been dropped from the general list by the uniform usage of the levy court, by force of the presumption quoted, they were not to be again rated until a new general assessment was made. The legality of the practice was unquestioned. The objection to one offering to vote, that he was not on the “ levy list ” as it was called in common speech, was fatal to his application, unless he could show, before the constitution of 1831, the payment of a state or county tax within a year which had been assessed six months before the election at which he offered to vote, or, since that time, the payment within two years of a county tax assessed six months also before the election. The purpose of the act of 1843 was to expressly require what had been always theretofore held to be the law with respect to delinquents, with that, in addition, of preventing the pretended receipt of old taxes, etc. The theory had always been, without dispute, to that time, by the men of any party, that delinquency was exclusion from the assessment until another general assessment of persons and personal property was made, when the law required that they should be put on the list again.

The act of 1843 stood unchallenged upon the statute-book until the year 1847, when a supplement to it was passed, the second section of which provides as follow: “ That it shall be the duty of each of the assessors of this state, in the annual assessments for their respective hundreds, according to the law of this state, to assess all such persons as may have been returned and allowed as delinquents at any session of the levy court preceding the period fixed by the act to which this is a supplement, for the completion of his assessment: provided, such persons reside at the time in the hundred for which he is assessor. And any resolution or order of the levy court, in either of the counties of this state, adverse to the provisions of this act, be, and the same is hereby, declared null and void; and any practice authorizing the said assessors to omit the assessment of such delinquents until the period of the assessment of persons and personal property next following the time when such persons shall have been allowed as delinquents be, and the same is hereby, directed to be discontinued.” Volume 10, p. 171. Though not doing so in terms, this act virtually repealed that portion of the original act of 1843 which provided differently with respect to delinquents; but there is no suggestion or hint in it that the repealed feature of the latter act was in any sense hostile to the constitutional provisions concerning the privilege of suffrage. It therefore should be treated rather in the light of a revenue provision. At the session of 1851 an act was passed entitled “ An act to extend the rights and privileges of poor white taxables within the state.” It is in the lollowing words, (Act 10, vol. 518:) “ Whereas, the present law of this state, requiring the names of delinquent taxables to be stricken from the assessment lists, does, in substance, treat poverty as a crime amounting to disfranchisement ; and whereas, it may, and frequently does, happen that, from sickness or othermisfortune, poor persons become temporarily unableto pay thepublie taxes assessed against them, who are nevertheless good and worthy citizens, and willing at all times, when able, to pay the public charges against them, and that the inability to pay in anypartidular year is no proof that such inability will exist the succeedingyear; therefore: Section 1. Be it enacted by the senate and house of representatives of the state of Delaware, in general assembly met, that from and .after the passage of this act the allowances of delinquent lists in the several counties of this state shall be deemed, taken, and held to have no other design or effect than the crediting of the accounts of the several collectors for the time being with the several amounts by them respectively returned as the assessments against said delinquent taxables, and that, after being so allowed and credited as aforesaid, the same shall all be again placed on the duplicates of the collectors of the several counties for the succeeding year, except such as are returned as being dead or removed from the state. Sec. 2. And be it further enacted that the act entitled ‘ A supplement to the act entitled “ An act to amend the election laws of the state of Delaware,” passed at Dover, Feb-, ruary 16, 1847, and so much of the second section of the act entitled ‘ An act to amend the election laws of this state/ passed at Dover, February 27, 1843, as relates to the striking the names of delinquent taxables from the assessment lists and the collectors’ duplicates, be, and the same are hereby, repealed, made null and void.” This act had its inspiration in the desire of the political party which at the preceding general election of representatives, etc., had attained the power through a split in the party dominant since 1828, to increase its voting strength; the delinquent taxables having been always chiefly of their politics. It was not the offspring of any sentiment that prior legislation with respect to delinquents was in derogation of the electoral right, but grew out of the natural wish to magnify the electorate so as to enable the party then in power to remain there. It is true, the preamble has language that would warrant a different view; but it is well known that it was used simply rhetorically, to promote the passage of the act. If any of the tax laws had been suspected even of infringing the constitutional right of suffrage, the party which passed the acts now under consideration would have brought them to the bar of judicial decision to be annulled; for their interest, for the reason above given, made them necessarily hostile to them. The law just quoted remained undisturbed' until the legislation of 1873, which gave rise to this controversy. That legislation has provoked much criticism and animadversion; yet it is not much more, so far as delinquent taxables are concerned, than a revival of the act- of 1843, prepared by the then attorney general of the state, the late Chief Justice Gilpin. From the known care and caution with which his legal action generally was characterized, it is fair to suppose that he gave to the preparation all the consideration and reflection the subject required. Although the fact would not of itself justify a positive conclusion as to the validity of the law; yet it is much, in passing upon it, constitutionally considered, to know that the then first law-officer of the state put it forth with the sanction of his professional rank. As the present assessment laws are part of the legislation of 1873, it will be well to take a view of the law as it was before that session. There being no other law for the registration of voters than the assessment laws, this is the more necessary; the real contention being that the system of law under which we live, with respect to the electoral right, is repugnant to the constitution of the state, or that of the United States.

I have already pointed out that in this state there are periodic general assessments of persons and personal property, as well as of real estate. Now they are, by modification of former law, to be made every four years; and now, as heretofore, annual assessments of persons and personal property, in addition to the general assessment, are to be made, for the purpose of including new-comers, persons who have arrived at age since the prior assessment, and personal property since acquired, and to correct omissions, etc. The “ Act for the valuation of property ” (Rev. Code, 84) provides for the periodic assessment of property and persons, but it was modified by chapter 394 of volume 13 so as to reduce the time for the duration of the assessment of real property to four years; thus securing a general assessment of all property once every four years. I have stated this before. There was also, by this act, a provision for annual assessments, as above. There was no change in these provisions made by the act of 9th of April, 1873, —part of the legislation under consideration ■ but some new features were introduced for what would seem to be the purpose of securing to persons who ought to have the right to vote the means of perfecting that right, and to prevent others from voting who ought not to be allowed to do so. The first section prevents the assessors from placing upon the assessment list, in addition to the names of those assessed for poll-tax, (all male citizens entitled to vote,) the name of any one not the owner in his own right of taxable property within the assessor’s limits, unless he be satisfied, from personal knowledge that he is of age, and a dona fide resident of the hundred or district, except as thereinafter in the act provided. The second section provides that, in 10 days after making his assessment,—which, by section 16 the chapter concerning assessors, (Rev. Code, 78,) he is to complete by the 1st day of January,—he is to post it, made alphabetically, in front of the most public places in his territory, and give notice in writing, either attached to it or otherwise, stating that he will attend at the place of holding the general election therein, on some day to be named in said notice, from 10 a. m. till 5 p. m., to correct errors, and assess any who may have been omitted; and shall also state in the notice that persons desiring to be assessed must apply in person at the time and place mentioned therein, and furnish proof of identity, age, and residence required by section 3 following. And it is provided in the same section that, if the assessor cannot complete the services on the day named, he may adjourn to the next or some subsequent day, not exceeding three days from that time, to be announced publicly to those present at the time of the adjournment. The third section not only makes it lawful but the duty of the assessor to place upon his assessment list the name of any person who may have been omitted, who shall appear before him at the time and place specified in the notices aforesaid, and prove his right to be assessed by the affidavit of some respectable freeholder of the county, according to the form of the affidavit given. The fourth section enacts a penalty against the assessor, of not less than $100, nor more than $500, to be recovered by indictment for the misdemeanor the offense is declared to be, of refusing or omitting to place the applicant making the aforesaid proof upon the assessment list, and also for placing on the list, knowingly, the name of any fictitious person, or person not at the time a resident of his territory. The fifth section provides that, in case the assessor is unable, from sickness or otherwise, to attend at the time and place stated in his notice, he shall appoint some other man for the purpose, and give notice thereof at in the second section is mentioned. The sixth section makes it unlawful for the levy court, or any member thereof, to take from the assessment list any names appearing thereon, or to add to any assessment returned by the assessor the name of any person, unless upon his personal application and proof so to be made, as aforesaid, before the assessor, of his right to be assessed. A violation of the above by a member of the court is made a misdemeanor, with penalty of a fine of from one to five hundred dollars on conviction. And, if the clerk of the peace (the clerk of the levy court) shall neglect to place upon the duplicate to be delivered by him to the collector any name on the assessor’s list, he shall forfeit and pay to the person whose name is left off the sum of -$10. This is to punish him; for the party’s right to vote depends upon his assessment) and not on the correcting of the duplicate. The seventh section makes the offense a misdemeanor, punishable by fine of from one to five hundred dollars, by any one who shall procure or cause to be placed upon the assessment list any person not entitled to be assessed, or any fictitious or fraudulent person. The eighth section makes it perjury to make a false affidavit under the act. The ninth section makes it unlawful for any assessor or the levy court to place upon the assessment list of the assessor’s hundred the name of any person who was returned a delinquent the year preceding, until after the expiration of 12 months from the time of the allowance of the delinquency by the levy court. The tenth section makes it the duty of the clerk of the peace to deliver to the sheriff in the month of August, in the year of holding the general election, an alphabetical list for each of the hundreds of the county of the delinquent list made and returned by the collectors at the March session of the levy court.

By the tenth section of the chapter next succeeding, (chapter 12, of “ Collectors,”) each collector must, on the first Tuesday of March next succeeding the date of his warrant, render to the levy ■court a true account of all taxes it was his duty to collect, of all payments made, and of all delinquents; and by section 1 of chapter 372 of volume 14 of the Laws, (Rev. Code, 90,) it is made the collector’s duty, within 30 days after he has received his duplicate, to give public notice by advertisements, posted in 10 or more of the most public places of his territory, stating his place of business or residence, and his readiness to receive taxes; and it is also made his duty, in the month of January in each year, again to give public notice, as aforesaid, of at least 10 days, said notice to state the times and places at which he will attend to receive unpaid taxes. It is then made the duty of the levy court, upon proof by the collector’s affidavit filed in the office of the clerk of the peace, setting forth that he gave the notice required, and that, in accordance with the last required notice, he did attend at the time and place designated, and there remained for the space of 5 hours each day, for .the period of at least 3 days, for the purpose of collecting the taxes aforesaid, to allow him as delinquencies the uncollected taxes; and then declares that the names of the delinquents shall be dropped from the assessment list by the levy court, and not be placed thereon again for the period of 12 months from the date of the allowance. The section is made applicable to persons liable to pay poll-tax alone; for the reason that those owning real property can always be made to pay by sale of their property, taxes being a prior lien thereon. It is true there is the ultimate remedy by imprisonment of the body in the case of mere poll-tax men; but it is never resorted to, the cost to the county of confinement in jail for a week, even, more than exceeding the tax. The second section provides that the notice shall be a sufficient demand upon taxables for their taxes, and a performance of the duty to make demand. By the law before, (sections 13, 15, c. 12, Eev. Code, aforesaid,) collectors could only proceed to sell property or imprison the body after 10 days’ demand, to be proved by his oath as competent evidence of that fact. By section 17, c. 10, Eev. Code, p. 81, every assessor is required to return his assessment—which by the sixteenth section he is required to complete by the 1st day of January—to the levy court on the first Tuesday of February, and to attend the court on that day, and on the first Tuesday of March, and on such other days as the court may require, under a penalty of $20 to be recovered by indictment. This is to enable the court to perform its duty, mentioned in sections 12 and 13 in the chapter next cited. By section 11, c. 8, Eev. Code, p. 62, the levy court is required to sit as a court of appeals on the first Tuesday of March of each year, and on such days and times thence next in said month ensuing as it shall be necessary to adjourn to, and examine the assessments returned by the assessors, and the corrections thereof and additions thereto that may have been made, and receive, hear, and determine appeals against the same. By the twelfth section the court have power, either upon their own examination or upon appeal, to make additions to and corrections of the assessment list; to call before them any person whose name ought to be on it, or who was omitted by the assessor, etc. By the fourteenth section, an assessment cannot be called in question anywhere than in the levy court; and the saíne, as it shall stand in that court, is conclusive. The fifteenth section provides that no assessment shall be made after the last day of March ; and the sixteenth section, that, if any person shall fraudulently add to or take from the assessments as finally settled by the levy court, he shall be guilty of a misdemeanor, and fined $500. The twenty-first section enacts that, at the meeting in March in every year, the court shall settle the delinquent list of each collector, and make allowance of delinquents, and upon such allowance the collector is to be credited with the amount thereof. Then there is the provision for the reassessment of the delinquent, superseded by the legislation of 1873.

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

Before emancipation of slaves, and the adoption of the fifteenth amendment to the constitution of the United States, voting in Delaware was confined to white males of over 21 years, with the exceptions before given; and so steady and constant was our population everywhere, except in Wilmington, that such persons as were selected to be assessors were usually acquainted personally with nearly all the voting class. It was for this reason, no doubt, that the law made no requirement of notice by the assessors that they were about to proceed, or would proceed, to make the assessment. At the February session of the levy court, the assessments were returnable ; and, by the practice of the court and the law, they were liable to correction by the levy court, in order to perfect them. But the March term was an appeal term from assessments, at which any person aggrieved at not being assessed at all, or who, or whose property, was unfairly assessed, could appear before the court, and obtain redress. When the levy court had made an examination of the assessment list, and corrections in them, at the February term, it was the duty of the clerk of the peace, by the 20th of the month, to make copies of the hundred lists, and post them for public inspection, with notice of the holding the court of appeal. Section •27, c. 9, Rev. Code, (Hall’s Dig., 375.) This publication was the first formal notice to the public of the assessments, and then they had been completed by the assessors. No further notice was given in relation to assessments. On or before the first Tuesday of April following, it was the duty of the court to issue to the collectors duplicates of the assessment lists, with the taxes assessed upon them, together with warrants for their collection; and it was that of the collector, before proceeding to collect his taxes by legal process, to make 10 days’ previous demand for them. But other notice to the tax-payers there was none. Doubtless it happened, in many cases, that parties were returned delinquent who had never been called upon for their taxes at all; their only notice being that given by the clerk of the peace, as above required, in the publication of the assessment lists. I have already pointed out that, under the old system, prior to the act of 1843, when a person was returned a delinquent, his name was dropped from the assessment then existing, and have ascribed the practice to the maxim specified. Under it, therefore, if he was returned a delinquent, and allowed as such by the levy court at the March session next after the year when the assessment was returned, he was off during the residue of the duration of the assessment, (then six years,) and, after it was changed, then the residue of four years. But it was found that many names were restored in some way surreptitiously, which operated to allow the delinquent class, or such of them as the dominant party needed in their service, to vote when their ballots were in requisition, and escaped paying their taxes at other times; thus defeating the requirement of paying “ scot and lot,” or taxes whenever assesséd, as the distinction of a freeman. This law of 1843 broke up that fraud, or was intended to do so, and required, in terms, that the delinquent’s name should not only be dropped, but that it should not go upon the list again until he was again lawfully assessed, which, by the restrictive effect of the provision in the old statute for annual assessments, could not be done until there was a general assessment of persons. In 1847 an act was passed, the second section requiring the reassessment of delinquents in the annual assessments. They then were made to stand upon the same footing as persons before omitted. The first section required the delinquent list to be returned by the collectors on the first day of the annual March term, and prohibited allowance of it by the levy court for five days after return, and secured the public right to inspect it, by indictment of the members of the levy court, or the clerk of the peace, as the case might be, refusing to allow such inspection upon application. Volume 10, p. 171. That act was repealed by that of 1851, before quoted, which provided that the effect of allowance of delinquency should only be to credit the collector with the tax, and required that the name of the delinquent should be again put upon the collector’s duplicate. It also repealed expressly so much of the act of 1843 as required the dropping the name of a delinquent from the assessment list, though that was done by implication. The act of 1843, by the expression of purpose contained in the second section, shows a motive for passing the provision with respect to delinquent taxes, and to dropping delinquents from the tax-list. It did its work very effectively, so that taxes had to be paid. The condition upon which the elective franchise was to be enjoyed had to be performed, for the legal presumption prevailed.

In the political campaign of 1846 when the dominant party lost their candidate for governor, a fierce assault was made upon it, and chiefly because of the act of 1843, and the manner in which that law dealt with delinquents. The legislature, however, was not lost; and accordingly, at the session following the election, the act of 1847 was passed, which was repealed, as has been stated, by that of 1851, when the power of the party in the legislature passed into the hands of its opponent. The legislation upon the subject of delinquents was a game of politics, but no one doubted that it was one which might be lawfully played. It did not put it out of the power of any man, really or practically, to obtain and retain the right to vote, but only aimed at compelling him to perform the condition for its exercise as other people had to do who owned property,—pay the county taxes.

The party which passed the act of 1851 lost its ascendency in the legislature at the election of 1852, but retained its majority in the senate. Of course, there was no prospect of repealing that which had been so great a desideratum with it,—on whose side the great body of the delinquents was. At the election of 1854, a totally new party came into power, and by what was then a large majority. Both branches of the legislature were of its members, —the house entirely, and two-thirds of the senate. It was a very strong party, and had no need to concern itself with legislation about delinquents. A great mistake of legislation made at that session so shattered its ranks that the political power of the state passed away from it utterly, and the party itself practically disbanded. Such result restored to power the makers of the legislation of 1851, which, suiting the dominant party perfectly, remained in force until it was repealed by that of 1873. By the latter, the provision contained in the law of 1843 for dropping the name of a delinquent from the list, was re-enacted; and by the assessment act, (14 Laws Del., c. 371, Rev. Code, p. 82,) passed at the same session, (on the day preceding the delinquent act,) or 14 Laws Del., c. 372, Rev. Code, p. 90, assessors were forbidden to assess a delinquent “ until after the expiration of twelve months ” from the time allowance as delinquent was made by the levy court. Why was the act of 1843 practically revived, as to dropping delinquents from the assessment list ? That question has been answered before by what was said with respect to the necessity claimed for the legislation of the 9th of February, 1873. An immense number of voters, and many of them emigrants from the south, had been added, by the fifteenth amendment to the constitution of the United States, to the political ranks of the state. Almost all of these new voters were obscure persons, without any means whatever of a tangible nature to pay their taxes; and it was soon developed that they would content themselves with paying in the year of voting, and not in an “ off year,” as it was called. They were not, the most of them, persons whom the stigma of delinquency prompted to the avoidance of it by paying every year. It was grossly unjust to those who had property of an assessable nature, and could not, if they desired, escape the payment of “ scot and lot,” and to others having none, but with manliness above taking advantage of a too liberal statute, and paying biennially, that this state of things should continue. Accordingly, the legislation of 1873, both for assessment of persons and the collection of taxes, and allowance of delinquents and disposition of them, was passed. I say accordingly, for its obvious import is as I have described it to be. If there was any other motive for adopting it than to secure the better payment of taxes, it does not appear on the face of it, nor are we warranted in inferring it. A court cannot look behind the plain features of an act oí assembly perfectly simple in itself to hunt for some secret purpose, unless Such necessarily exists, as shown by the operation of the act itself.

The plaintiff’s counsel contend that the object of the legislation of 1873 was the disfranchisement of voters, and that its effect has been to deny the ballot to citizens who should exercise it. In order to make their point good, they have given the court an example to show how a voter is by the law deprived of his right to vote. But the example is impossible, except upon an assumption that the party having the right to vote is defeated, or deprived of it, in spite of his efforts to enjoy it. This is pure assumption; the fact being that the law cannot operate without the co-operation or consent of the complaining party. If he desire to vote at elections, he has nothing to do but see to it that his name is kept upon the assessment list, and it will be retained there; and he will have the right to vote because of that, according to the constitution, if he will keep up, like other people in like case, the payment of his tax. If he fail to pay within two years of the election he cannot vote, by the constitution, and ought not to vote. He who will not contribute his part to support the government that protects him ought not to be allowed, by the use of the ballot, to neutralize the vote of another, who does. And he who will not give himself the trouble to see that he is assessed sleeps upon his rights ; and for him the maxim, non dormientibus sed vigilantibus, leges subveniwit, has appropriate application.

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

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

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