Smith v. Riding

22 A. 97, 14 Del. 235, 9 Houston 235, 1891 Del. LEXIS 4

• Court: Supreme Court of Delaware
• Decided: June 18, 1891
• Status: Published

Opinion

Per Curiam.

The question to be decided is whether Israel Riding, the defendant, who in the month of February, 1890, was duly appointed collector of taxes of Hew Castle hundred, in Hew Castle county, and his official bond given and approved, and a duplicate of the assessment of the said hundred, with a warrant thereto annexed, dated on the first Tuesday of April, 1890, issued to him by the Levy Court of New Castle county, has the power to collect, for the space of two years from the date of such warrant, the residue of the taxes uncollected by him, and not allowed as delinquent, which, according to such duplicate and warrant, he was required to collect. Let us first consider the principle involved historically. The system of levying and collecting county taxes in the several counties of this state prior to the act of the general assembly entitled “ An act in relation to the levy court of New Castle county,” passed April 28, 1891, has remained the same in its essential features since the early colonial period, and no important alteration has been made in it (prior to the passage of the last-mentioned act) since the enactment of a law entitled “ An act concerning the Levy Court, clerk of the peace, assessors, collectors, and county treasurers,” passed February 4, 1825, and being Chapter 278, Vol. 6, Laws of Delaware. The Levy Court in each of the counties was empowered and required annually to settle the amounts necessary to be raised for all the local purposes for the current year, and to apportion and lay such amounts, known as county, road, and poor taxes, upon the rates of persons and valuations of real and personal property in the several hundreds, as the same should stand upon the assessment lists as corrected and perfected by the said Levy Court. In the month of February in every year, the Levy Court appointed a collector for each hundred in the county, who was required to give an official bond, and to whom was issued by the said Levy Court, on. or before the first Tuesday in April, a duplicate of the assessment list of the hundred for which such collector should have been appointed, with a warrant annexed to such duplicate, which expressed his powers and duties, and upon the proper execution of such warrant or writ was conditioned his official bond. Each collector was required to pay over to the officers authorized by law to receive the same the amount of all the taxes committed to him for collection, excepting only so far as allowances should be made to him by the Levy Court for delinquencies, commissions, or otherwise, on or before the first Tuesday of February next after his appointment, proportional payments being required before that date, and the Levy Court having the power to order payment of all or any of the said taxes at an earlier day. The term of office of each collector was expressed to be for one year, and he was required to make his final settlement with the Levy Court on the “ first Tuesday of March next ensuing the issuing and date of his warrant,” and the Levy Court was required to make their allowance of delinquencies at such March session. It was expressly provided, however, in the above-mentioned act, being Chapter 278 of Volume 6 (the provisions of which appear in the digest or in the revised edition of Delaware Laws published in 1829 under the same title), that “ a person who shall be appointed collector and to whom a duplicate and warrant shall be issued and delivered, or his executors or administrators, shall have and may exercise all the authority and powers granted by this act, and proceed by all the means herein prescribed for the collecting, levying, and making of the rates required according to such warrant and duplicate to be collected, for the space of two years from the date of such warrant; but no delinquencies shall be allowed to any collector except by the Levy Court and Court of Appeal, when sitting as a Court of Appeal, in March next ensuing the date of his warrant, and at no other time whatever.” Provision was also made for the death, removal, or misbehavior of a collector, by authorizing the Levy Court, upon the application.of his sureties or executors or administrators, as the case might be, to appoint a collector in the place of such collector, and compel the delivery to him of the warrant of such collector, or to issue a new warrant, to bear the same date with the original warrant and duplicate for the year.

Except by the repealing chapter of the Revised Statutes of 1852, none of the above-mentioned provisions have been repealed or modified prior to April 28, 1891, save that in an act entitled “ An act to amend the election laws of the State of Delaware,” passed February 27, 1843, and being Chapter 491, Vol. 9, Laws of Delaware, it was provided by Section 2 thereof “ 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 warrant; 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 the act further provided for the extinguishment of taxes returned as delinquent, and prescribed penalties for any violation of its provisions by a collector. And again, an act entitled “ An act in relation to the liability of principal and surety,” passed March 23,1877, and being Chapter 342, Vol. 15, Laws of Delaware, prescribed at length the remedy of the sureties on a collector’s bond, by application to the Levy Court, in certain contingencies, for his removal, and the appointment of another collector in his place, and also provides for a similar application in the case of a collector whose term has expired, and who shall not then have collected all the taxes committed to him for collection, giving the Levy Court power to issue an order restraining such late collector from the further collection of any taxes committed to him, and to appoint “ the collector resident in said hundred, or any other citizen of the hundred, to collect the residue of the taxes uncollected by such late collector.” In the Revised Statutes of 1852 the provisions of the antecedent law in relation to the Levy Court, clerk of the peace, assessors, collectors, and county treasurers were re-arranged and re-enacted in chapters appropriately headed; all those above cited being placed either in Chapter 8, entitled “ Of the Levy Court,” or in Chapter 12, entitled “of Collectors,” and so appear in Chapters 8 and 12 of the Revised Code of 1874. No change in phraseology, or omission incident to such rearrangement, requires attention in this connection, except that the provision above recited, continuing beyond his term office the powers of a late collector, or his executors or administrators, in execution of his warrant, was omitted; and this extension of authority was left to rest upon the implication contained in the limitation expressed in Chapter 491, Vol. 9, Laws of Delaware, which is re-enacted in Section 18 of Chapter 12 of the Revised Statutes of 1852, and of the Revised Code of 1874. The collector was empowered and commanded to collect by distress of the property and arrest of the person; of which harsh and summary method of collection, it has been well said; “ This method of collecting taxes is as well eseablished by custom and usage as any principal of the common law.” A similar practice prevailed in all the colonies from the first dawn of their existence; it has been continued by all the states since their independence, and had existed in England from time immemorial. Indeed, it is necessary to the existence of every government, and is based upon the principle of self-preservation.

Before determining whether the powers of a late collector, under a warrant issued to him for the collection of taxes for the year 1890, are affected by the act entitled “ An act in relation to the Levy Court of New Castle county,” passed April 28, 1891, it will be necessary to consider what were the nature and extent of his powers, if any, at the time of the passage of said act. Section 1, Chapter 12, of the Revised Code provides that “a collector of taxes shall hold his office for the term of one year.” Section 19, Chapter 8, Id., requires the Levy Court to appoint a collector for each hundred in the month of February in every year. (In the case of divided hundreds, collection districts should be substituted for hundreds.) Section 7, Chapter 12, Id., prescribing the dates and proportional amounts of the payments required to be made by each collector, provides that the residue, after deducting commissions and delinquencies, shall be paid by the first Tuesday of February next after his appointment (before the end of his term), or earlier, at the discretion of the Levy Court. (This provision in Section 8.) In Section 18, Chapter 8, Id., the form of warrant, set out at length, requires the collector to pay the amount which, according to the terms of his warrant and annexed duplicate, he was required to collect and pay, in the manner and within the time appointed by law in that behalf, the same being provided in Section 7, above recited in part. In Section 2, Chapter 12, Id., the form of the condition of the official bond is given,—conditioning the bond upon the execution of the warrant, and reciting the manner of payment. Section 10, Chapter 2, Id., provides that “ he shall on the first Tuesday of March next after the date of his warrant render to the Levy Court a true account of all taxes it was his duty to collect, and of all payments made, and of all delinquents,” Section 21, Chapter 8, Id., provides that “ at the meeting in March in every year the Levy Court shall examine, adjust, and settle the account of the collectors, making all just allowances, and the adjustment and settlement shall be final; and the court, if deemed expedient, may require other accounts from the collectors. They shall at the said meeting examine and settle the delinquent list of each collector, as well of state as of county taxes, and make allowance of delinquents j and upon such allowance the collectors shall be credited with the amount thereof.” All these provisions are in accordance with the express limitation of the term of office of a collector to one year j and their meaning becomes plainer after an examination of the same provisions expressed at greater length, and in a different order, in the act above referred to, entitled “ An act concerning the Levy Court, clerk of the peace, assessors, collectors, and county treasurers,” to be found on page 373 of the Digest. At the end of his year of office he ceased to hold the office of collector of taxes of the hundred for which he had been appointed, and the collector’s seal provided for in Chapter 372, Vol. 14, Laws of Delaware (Rev. Code, p, 90), was delivered to his successor in office. If he had failed to pay ,e to the officers authorized by law to receive the same ” the amount of all taxes committed to him for collection, after deducting commissions and delinquencies, by the first Tuesday of February next after his appointment, there was a complete breach of the condition of his official bond; and the Levy Court after the final settlement in the following month of March, when the delinquent list was allowed, had full power and authority to order the official bond executed at once; any delay after that being merely indulgence on the part of the county representatives to a debtor of the county for a sum finally fixed and ascertained.

So far there is no suggestion of any powers surviving the one-year term of office, but in Section 18 of Chapter 12 of the Revised Code we find the provision that “no collector nor his executors or administrators shall collect or receive any tax after two years from the date of the warrant; after that date it shall, be extinguished.’’ This prohibition implies the power of the late collector or his executor or administrators to continue to collect, within the time limited, the taxes required, according to his warrant and duplicate, to be collected, which have not been allowed as delinquent, and which he failed from any reason to collect during his term of office. And this power is recognized.in the act mentioned above, entitled “An act in relation to the liability of principal and surety,” passed March 23, 1877, and being Chapter 342, Vol. 15, Laws of Delaware, which empowers the Levy Court, in certain contingencies, “ to issiie an order restraining such late collector from the further collection of any taxes committed to him, and to appoint the collector resident in said hundred, or any other citizen of the hundred, to collect the residue of the taxes uncollected by such late collector.” Prior to the revision of the statutes in 1852, the power was exercised' by the late collector, or his executors or administrators, by virtue of the express authority given by Sec. 8, Chap. 278, Vol. 6, Laws of Delaware, already recited. The Revised Statutes of 1852 reenacted the limitation of the power contained in Section 2 of Chapter 491, Vol. 9, Laws of Delaware, a hove recited, but omitted from the revision the express grant of the power. But the legislative intent to continue the power is to be inferred from their limitation of it. And this construction is placed beyond a doubt by the subsequent practical construction, the power being exercised as before without question, and furthermore by the later legislative recognition of the existence of the power in Chapter 342, Vol. 15, Laws of Delaware, above recited. There can be no doubt, therefore, that prior to the act of April 28, 1891, above mentioned, a late collector, or his executors or administrators, might continue to exercise the powers granted by his warrant for the collection of taxes until after the expiration of two years from the date of such warrant.

It, therefore, only remains to consider whether the act entitled “An act in relation to the Levy Court of New Castle county,” passed April 28, 1891, abolished, or in any manner affected, the powers of such late collectors; that is to say, the persons appointed collectors by the Levy Court of New Castle county in the month of February, 1890, and to whom were issued on or before the first Tuesday of April of that year duplicates and warrants for the collection of taxes levied for the year 1891, or their executors or administrators. The last-mentioned act provides for a change in the numbers and mode of election of Levy Court Commissioners composing the Levy Court of New Castle county (such changes to take effect in January, 1893,) and radically alters the long-established system of collecting and disbursing the county revenue, such alteration being made to apply to the collection and disbursement of the revenue for 1891, the current year. The powers and duties of the Levy Court in relation to the assessment lists of the several hundreds, and the levy of taxes thereon, are in no way affected; but a new officer, to be known as the “ Receiver of Taxes and County Treasurer,” is provided for, to whom the Levy Court is required to issue the duplicates of the taxes of each hundred, and the warrant for their collection, on or beforé the 1st day of July in every year, beginning with July, 1891; the said receiver of taxes being charged with the duty, and invested with the power, of collecting the taxes of the whole county personally or by deputy, or by collectors chosen by himself. The act further provides for a new system of auditing and controlling the expenditure of the taxes collected ; the presumable intent of the legislature, to be gathered from all the provisions of the act, being to provide for the more prompt and economical collection of the taxes, and for a system of checks upon extravagance and misappropriation, which might insure prudence and probity in their expenditure.

Inasmuch as “the receiver of taxes and county treasurer” provided for in the act was required to enter upon the duties of his office in time to collect and disburse the revenue of the year 1891, in the place of the collectors of taxes and county treasurer then in office under the antecedent law, the act proceeds to abolish the said, offices; and in Section 2 thereof it is provided “ that the terms and powers of office of the county treasurer and collector of taxes, who have been appointed or elected by the Levy Court of New Castle county since the first day of February, 1891, be, and the same are hereby, terminated and ended, and the said offices as now fixed by law are hereby abolished ; and from and after the passage of this act the said offices of county treasurer and collectors of taxes of New Castle county, as now fixed by law, are hereby abolished.” But it is contended that the language in this section not only terminates and ends the powers and terms of office, and abolishes the offices of the said county treasurer and collectors of taxes of New Castle county, whose places are filled and whose powers and duties are devolved upon the receiver of taxes and county treasurer provided for by the act, but, in addition, reaches back to the late collectors, and terminates and ends all the powers of collecting taxes possessed by them or by their executors and administrators under the provisions of the antecedent law. Such a construction is entirely inadmissible. In the light of the antecedent law examined above, and the whole of the statute under consideration, the meaning of this section is plain and unambiguous; that is to say, it terminates and ends the terms and powers of office of the officers named, to wit, the county treasurer and collector of taxes who had been appointed or elected by the Levy Court of New Castle county since the 1st day of February, 1891. These were the only officers whose terms and powers of office were inconsistent, or in any way conflicted, with the fiscal changes contemplated by the act, and constituting its main scope and object. Those changes were made to begin with the collection and disbursement of the taxes calculated and laid by the Levy Court for the year 1891; and the continuance in office of the said county treasurer and collectors of taxes, charged with the collection and disbursement of the same taxes, was of course fatal to the inauguration of the proposed reforms in year 1891; and it was natural for the legislature to express its indent to remove this obstacle with such vigor/ and even redundancy of expression, as to prevent the possibility of a doubt. This may, perhaps, account for the addition of the clause, u and from and after the passage of this act the said offices of county treasurer and collectors of taxes of Hew Castle county as now fixed by law are hereby declared to be abolished,” which is evidently a mere repetition of the preceding clause, which sufficiently indicated that the changes of the fiscal system went beyond the mere change of agents. But, however this may be, it cannot be for a moment held that the language above quoted reaches back to the predecessors in office of the said collectors, so as to deprive them, or their executors or administrators, of the power of collecting “ the residue of the taxes uncollected by such collector.”

It is manifest from the preceding review of the antecedent law that a late collector, or his executors or administrators, possesses the power of collecting “ the residue of the taxes uncollected by such collector; ” not by virtue of the office of collector, for his term of office has expired by the terms of its creation, his successor in office has been appointed, and the final accounting for the purpose of fixing the amount of his indebtedness on his official bond (even if he has not paid the said indebtedness) has been had, but because the statute has granted him the privilege of continuing to exercise, until the expiration of two years from its date, the powers expressed in his warrant for the collection of the taxes which he has actually advanced to the county, or which he and his sureties have assumed; indulgence having, perhaps, been granted to embarrassed taxables on the faith of this power to reimburse himself for taxes advanced or assumed by virtue of the extension for another year of the power of the writ or warrant in his hands-How, then, even without reference to the scope, purpose, and subject-matter of the statute under consideration, and simply looking to the language of Section 2, could the words, “and from and after the passage of this act the said office of county treasurer and collectors of taxes of New Castle county, as now fixed by law, are hereby abolished,” be so construed as to deprive the predecessors in office of such collectors, the late collectors, whose terms of office had already expired by the terms of the law creating them, of this power of reimbursement,—of this personal right to proceed under their warrant for the space of two years from its date ? The underlying principle of all construction is that which seeks the intent of the legislature in the words employed to express it. When doubts arise on the meaning of words, the antecedent law, the evil to be remedied, and the circumstances under which the law has been enacted may be resorted to for any light they may possibly throw upon the meaning. There is also a general rule of law which requires the courts to always construe statutes as prospective, not retrospective, unless constrained to the contrary by the rigor of the phraseology. We have considered fully the antecedent law. The evil to be remedied is manifestly supposed defects and abuses inherent in the former system of collecting and disbursing the taxes of New Castle county, and the remedy provided by the statute is a new system of collecting and disbursing those taxes, beginning with the taxes levied for the year 1891. Did any doubts arise as to the meaning of this section, would the rules of construction permit the inference that the legislative intent in such a statute was to remit all uncollected taxes levied prior to 1891, by depriving late collectors, or their executors or administrators, of the power existing under antecedent law to collect them, and providing no other means for their collection ? But were it possible, by any .ingenuity of construction, to sustain the contention that the late collectors, the predecessors in office of the collectors appointed or elected by the Levy Court of New Castle county since the first day of February, 1891, were, at the time of the passage of the act entitled “An act in relation to the Levy Court of New Castle county,” officers whose terms and powers of office were therein terminated and ended, and were thus deprived of the right of collecting any taxes, Section 24 of the act itself forbids such a construction. It provides “ that nothing in this act shall be construed so as to vacate, annul, or invalidate any official bond heretofore given by any officer whose term of office is herein vacated aud ended, either as to the principal or any surety therein. * * * ” A construction which would deprive the late collectors of a right of such importance, existing at the time their official bonds were given, must of necessity be a construction forbidden expressly by the act itself, as well as one imputing incredible folly and injustice to the legislature of the State.