(108 A.)

"The importance of the question does, how- | lawyers of the State, and have carefully conever, require careful consideration, and the sidered the subject matter laid before us, and procedure we propose to follow seems to us to herein submit our views and conclusion. be the best that can be adopted under the circumstances."

[1, 2] To be constitutional it must have been general. To be general it must provide for free public schools for all of the The several grounds of attack made upon children of the State. children of the State. A general law prothe Act at the hearing are stated in the opin-viding for the establishment and mainte

Article 10 of the State Constitution of free public schools and made applicable to 1897, provides that

constitutional delegation of legislative power; but if the law is complete in and of itself, the fact that it provides for an acceptance of any of its provisions by certain State agencies does not make it a delegation of legislative power and, therefore, invalid. This principle is applicable to the Act

would overlook the important element of the Act hereinbefore indicated, viz.: that it establishes by sweeping general provisions a new general system of government of all of the free schools of the State, whether it be accepted or not by any one, or all, or none, of the school districts, school committees, or boards of education; and that it stands as the law relating to such schools independent of such acceptance, rejection, or failure to accept.

the districts and boards created by the act in question, are not acts of incorporation within the meaning of section 1, art. 9, of the Constitution. They are neither private nor municipal corporations, but may be regarded as public quasi corporations. Coyle v. McIntire, 7 Houst. 44, 89, 30 Atl. 728, 40 Am. St. Rep. 109. They are not separate, independ- under consideration. To hold otherwise ent or permanent corporations, but integral parts of the general educational system of the State, and created for the purpose of perfecting such system and making the administration of the school laws more convenient and effective. The General Assembly is required by article 10 to provide for the establishment and maintenance of a general and efficient system of public schools, but there is no requirement that legislation thereunder shall have the concurrence of twothirds of each House. It is entirely competent for the Legislature, in providing for such a system of public schools, to create school districts with certain corporate powers, but they are parts of the system and not such independent educational corporations as are contemplated by article 9. They are agencies of the State government, created for the purpose of aiding in carrying out the requirements of the Constitution respecting the establishment and maintenance of a public school system, and may be altered or abolished by the Legislature at any time. We must, therefore, assume that any legislative act that constitutes a part of the general system of public schools, including acts incorporating school districts, and Boards of Education, requires only the concurrence of a majority of all the members elected to each House. Said article 9 may embrace certain educational institutions, but it can have nothing to do with the establishment and maintenance of a general system of public schools fully provided for and made mandatory on the Legislature by article 10 of the Constitution, which is independent and complete in itself.

There can be no doubt that the School Code was in force and operation before an acceptance of its provisions by any district. State and County Boards of Education were created by the Act and clothed with certain powers and duties co-extensive with the State or County and operative from June 30 of the present year whether its provisions were accepted or not. In a sense it revolutionized the public school system of the State, and its existence required the approval of no one.

[5] 3. The Act is not invalid because the taxes assessed and collected thereunder would not be uniform. The Constitution provides that the capitation tax shall be uniform throughout the county, and requires that such tax shall not be less than three dollars, nor more than six dollars annually. We are unable to see that the requirement of the statute affects in any wise the uniformity of the capitation tax. It may be uniform so far as anything in the Code is concerned. The Constitution (article 8, § 1) also provides that "all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax," and it is contended that property taxes could not, under the act, be uniform within the territorial limits of the authority levying the same which means the county.

[4] 2. The Act in question is not a delegation of legislative power to any school districts. Such districts being parts of the State government, created by the Legislature for educational, or public school purposes, the power given to them by the Code to ac- But we think the words "within the terricept its provisions, is an exercise of power torial limits levying the same," mean the by agencies of the State and not a delegation school district in which the taxes are to be of legislative power within the meaning of used; and that the Levy Court is, under the the case of Rice v. Foster, 4 Har. 479, relied statutory provision, merely the agent, or maupon by the contestants. The power given by chinery, through which the taxes are actualsection 121 to certain special school dis- ly levied and collected. The Levy Court has. tricts to accept the Code is not a submission no discretion in the matter at all, the duty of the right to determine whether it shall be is mandatory and must be performed for the a law, but the granting of an option to ac- district that furnishes the budget. The taxcept the law already in force and effective as es must, of course, be uniform in the school to all districts. And that is the test recog- district, and that in our opinion would be a nized by all the authorities. If the existence compliance with the constitutional requireof the law depends upon the vote of the peo-ment.

(108 A.)

Yours respectfully,

CHARLES M. CURTIS, Ch.
JAMES PENNEWILL, C. J.
WILLIAM H. BOYCE, J.
HENRY C. CONRAD, J.
HERBERT L. RICE, J.
T. BAYARD HEISEL, J.

provides for the collection of taxes based In conclusion we say, that after the most upon a county assessment previously made, thorough and careful examination we have and from which no right of appeal is given been able to give your question in the time in the Act. The assessment upon which the we thought was proper under the circumschool taxes are based was made for county stances, we are of the opinion that the law purposes, for county taxes, and under the known as the School Code is constitutional law any taxable has an opportunity to make and valid. complaint to the Assessor, Board of Assessment, and Levy Court for the remedying of any wrongs, or the correction of any errors in the assessment. If the same assessment is used as the basis for school taxes, there can be no more reason for another opportunity for complaint and correction than there would be before the levying of another county tax based on the same assessment. The general assessment continues for four years, subject to annual revision, and it is not essential that more than one right of appeal, or complaint, should be given no matter what may be the nature of the tax. (Court of General Sessions of Delaware. New The important thing is the right and opportunity to be heard as to the assessment.

[7] 5. The Act does not Act does not divest vested rights or impair the obligation of contracts within the meaning of the Federal Constitution. No security is taken from the owner of school bonds that he held or enjoyed before the passage of the Code. The property of the district which constituted his security when the bonds were issued remains the same, and his right to enforce the collection of principal or interest when due may be enforced by appropriate action in the courts of the State. The new districts created under the Code expressly assume all the obligations of the old, and the only change that could affect the bondholder at all would be in the remedy for the collection of his debt. There could be no deprivation or lessening of his contractual rights, the obligations would remain unimpaired.

STATE v. PINDER.

Castle. Oct. 18, 1919.)

(7 Boyce, 416)

1. CONSTITUTIONAL LAW 26- CONSTITUTIONAL PROVISION AS TO TAXATION NOT A GRANT OF POWER.

Const. art. 8, § 1, respecting taxation, is not a grant of power; the Legislature not being restrained in the selection of the subjects of taxation.

2. TAXATION 61-INCOME IS "PROPERTY"

WITHIN CONSTITUTIONAL PROVISION RESPECT-
ING TAXATION.

Income is "property," within Const. art. 8, § 1, respecting taxation, so that the Legislature had authority to enact the Income Tax Law.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Property.]

3. TAXATION 194-INCOME TAX LAW NOT UNCONSTITUTIONAL FOR EXEMPTING STATE SALARIES, RENTALS, ETC.

The Income Tax Law held not unconstitutional for any lack of uniformity on the same classes of subjects within the territorial limits state officials, rentals from real estate, income of the state, because exempting salaries of from agricultural operations, and incomes not exceeding $1,000.

4. CONSTITUTIONAL LAW 229(2), 283-TAX

[8] 6. The Act does not treat of two subjects within the meaning of the Constitution. It does treat in a general way of the care, training and education of dependent children brought into this State, and while this is a subject that may seem to be not closely related to the subject of free public schools embraced in the title, we do not think the one subject is so incongruous or foreign to the other as to make the Act invalid. In no Income Tax Law, providing for certain exlaw, perhaps, could the training and educa-emptions, held not violative of Const. U. S. tion of such children be more appropriately treated of than in an Act providing for a system of free public schools for the State.

[9] It may not be necessary to state the limit of our duty, or power, in replying to your communication, but lest there may be some persons who have a mistaken notion of our duty we will say, that the only thing we are called upon to do, and the only thing we can properly do under the law, is to express to you our opinion upon the constitutionality of the School Code.

ATION 193-INCOME TAX LAW DOES NOT
DENY EQUAL PROTECTION OF LAWS OR DUE
PROCESS.

Amend. 14, or Const. Del. art. 1, § 7, as denying equal protection of the laws or depriving the citizen of his property without due process.

James H. Pinder, indicted for violating the state Income Tax Law, demurs to the indictment. Demurrer overruled.

CONRAD and HEISEL, JJ., sitting.

David J. Reinhardt, Atty. Gen., and P. Warren Green and Frank L. Speakman, Deputy Attys. Gen., for the State.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Henry R. Isaacs and William W. Knowles, both of Wilmington, for defendant.

The indictment contained two counts. The first count charged that James H. Pinder "unlawfully did refuse to make a true and accurate return under oath to the state treasurer of the state of Delaware, in the form prescribed by the said state treasurer, setting forth specifically the gross amount of income from all separate sources and the aggregate of all exemptions and deductions authorized by law, for the calendar year 1918, he, the said James H. Pinder, having received during the calendar year of 1918 a gross income of $1,000, or over, against," etc. The second count is the same as the first, except it charges that James H. Pinder "unlawfully and willfully neglected to make a true and

PENNEWILL, C. J. (delivering the opinion of the court). To the indictment the defendant filed a demurrer, the causes being stated as follows:

"1. That chapter 26, volume 29, Laws of Delaware, being the statute law under which the indictment in said cause is framed and found, is, under the provision of article 8, section 1, of the Constitution of the state of Delaware, unconstitutional and void.

"2. That said statute, being the law under which the indictment in said cause is framed and found, is, under the provisions of article 8, section 1, of the Constitution of the state of Delaware, providing that all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, unconstitutional and void, in that it discriminates against citizens of the same class. "3. That said statute, being the law under which the indictment in said cause is framed and found, is, under the provisions of article 8, section 1, of the Constitution of the state of Delaware, unconstitutional and void, in that the clear intendment of said article and section is that taxes shall be levied upon 'property' only, whereas the said defendant contends that the income of citizens is not 'property' and therefore not within the purview of said article

"4. That said statute, being the law under which the indictment in said cause is framed 14, section 1, of the Amendments to the Conand found, is, under the provisions of article stitution of the United States, providing that no state shall deny to any person within its jurisdiction the equal protection of the law, unconstitutional and void, inasmuch as said statute confers upon citizens, to wit, the Governor of the state at the time of the enactment of said statute and other public officers of the terms of office respectively and citizens derivstate then in office during their then present ing income from the rentals of real estate and gains or profits from agricultural occupations, certain privileges which are not conferred upon other citizens of the same class.

"5. That said statute, being the law under which the indictment in said cause is framed and found, is, under the provisions of article 14, section 1, of the Amendments to the Constitution of the United States, providing that jurisdiction the equal protection of the law, no state shall deny to any person within its unconstitutional and void, inasmuch as it exempts out of the income of each taxable the sum of one thousand dollars ($1,000), no greater exemption being allowed to a married man, or to the head of a family, or to a citizen having persons dependent upon him for support, than to an unmarried person, or to a person not the head of a family nor having those dependent for support upon him or her.

"6. That said statute is, under the provisions of article 14, section 1, of the Amendments to the Constitution of the United States, unconstitutional and void, in that thereby this state is attempting to deprive persons of liberty and property without due process of law.

of section 7, article 1, of the Constitution of "7. That said statute is, under the provisions this state, unconstitutional and void, in that of section 7, article 1, of the Constitution of thereby persons are deprived of liberty and property contrary to the law of the land.

"8. That said statute, being the law under which the indictment in the said cause is framed and found, is unconstitutional and void, inasmuch as there is no provision in the Constitution of the state of Delaware conferring upon the Legislature of the state the power to enact a law whereby an income tax may be

levied and collected."

At the argument on the demurrer, counsel for the defendant attacked the constitutionality of the Income Tax Law on the following grounds:

1. Because the Legislature had, at the time of the enactment of said law, no authority under the Constitution of the state to enact a statute providing for an income tax.

2. Because said statute lacks the uniformity required of all tax laws by article 8, section 1, of the Constitution.

3. Because the statute denies to citizens of the state the equal protection of the law guaranteed by the Fourteenth Amendment to the Constitution of the United States.

4. Because by said statute the defendant is deprived of his property "without due process of law" and contrary to the "law of the land." in violation of said Fourteenth Amendment to

(108 A.)

[1, 2] Section 1 of article 8 of the Constitu-income may, not possibly, be comprehended untion of this state provides as follows:

"All taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall In Waring v. Savannah, the court said: be levied and collected under general laws, but "So that, perhaps, the true question is this: the General Assembly may by general laws ex- Is income property, in the sense of the Conempt from taxation such property as in the stitution, and must it be taxed at the same opinion of the General Assembly will best pro-rate as other property?" mote the public welfare."

"This may be thought a close construction of the charter;" but we must recollect "that, in the construction of statutes made in favor of corporations or particular persons, and in dero-distinction drawn by the Georgia court was gation of common right, care should be taken very technical, if not illogical, because if innot to extend them beyond their express words, come is property for other purposes, why or their clear import." should it not be for the purpose of taxation?