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Proceeding to enjoin collection of a school tax proposed to be levied upon plaintiff's property. Questions were certified to the Supreme Court from the Count of Chancery in and for New Castle County. The Supreme Court, Southerland, C. J., held, inter alia, that fact that school districts are unincorporated public bodies did not render statute conferring upon school district the power to levy taxes for school purposes unconstitutional as unlawfully delegating legislative power.
Order answering certified questions in accordance with opinion.
[34 Del.Ch. 385] Proceeding on Certification from the Court of Chancery in and for New Castle County (Civil Action No. 477, 1954).
Stewart Lynch and Abraham Hoffman, Wilmington, for plaintiff.
H. Albert Young, Atty. Gen., Stephen E. Hamilton, Jr., Deputy Atty. Gen., and Robert V. Huber, Wilmington, for defendants comprising the Board of Education of Mount Pleasant Sp. School Dist., and William S. Satterthwaite and Clyde M. England, Wilmington, for defendants comprising the Board of Assessment for New Castle County and the Receiver of Taxes of New Castle County.
SOUTHERLAND, C. J., and WOLCOTT and TUNNELL, JJ., sitting.
SOUTHERLAND, Chief Justice.
The plaintiff, Marjorie C. Brennan, is a resident and taxpayer of Mount Pleasant Special School District in New Castle County. She seeks in the court below to enjoin the collection of a school tax proposed to be levied upon her property. The defendants are (1) the Board of Education of the District, (2) the Board of Assessment of New Castle County, and (3) the Receiver of Taxes of New Castle County.
Upon numerous grounds plaintiff asserts the invalidity of the statutes authorizing the tax, the illegality of the proceedings by which it was levied, and the illegality of the assessment upon which it is to be based.
The general factual background of the case is as follows:
The Mount Pleasant School District is a special school district in New Castle County. Its Board of Education is appointed by the Resident Judge of the county.14 Del.C. § 505.
By the provisions of 14 Del.C. § 1902 any school district is empowered to levy taxes for school purposes upon the assessed value of real estate in the school district. The tax may be levied upon the basis either of a specified amount or a specified rate, as determined by the Board of Education and approved by the voters at an election called for the purpose.
[34 Del.Ch. 386] By the provisions of 14 Del.C. § 2102, the school board of any district may, with the approval of the State Board of Education, issue bonds to carry out a plan for the acquisition of land or the construction of buildings for school purposes. Before any such bonds may be issued a special election in the district must be held to obtain the approval of the voters.14 Del.C. § 2120.
By an election held November 17, 1949 the voters of the Mount Pleasant School District approved a change in the basis of the tax levy from a specified amount to a specified rate of taxation of 50 cents per $100 of assessed valuation of real estate. Subsequently, by two elections held on the same day, October 3, 1953, the voters approved an increase in the specified rate of taxation to 75 cents and also approved a proposed bond issue of $800,000 for the construction of new school buildings.
At the time of these last two elections the Board of Assessment of New Castle County, which is charged with the duty of valuing and assessing all real estate in the county for county and school taxation, was engaged in a revaluation and reassessment of such property. In May 1951, pursuant to a resolution of the Levy Court of New Castle County, it employed The J. M. Cleminshaw Co. of Cleveland, Ohio, an appraisal firm, to make a complete revaluation and reassessment of real estate in rural New Castle County and a partial reassessment of real estate in the City of Wilmington.
The reassessment was duly made. In November 1953 plaintiff was notified that the valuation of her property had been increased to $45,000. Thereafter this suit was filed. Unless enjoined by the Court, the new assessment will constitute the basis for county and school taxes for the fiscal year beginning July 1, 1954.
The validity of all these proceedings is challenged by the plaintiff on numerous grounds. She asserts (1) the unconstitutionality of the statutes authorizing the levying of the school tax, (2) the illegality of the proceedings by which the tax was authorized, and (3) the illegality of the entire assessment in New Castle County upon which the tax is to be based.
[34 Del.Ch. 387] The parties have stipulated the facts, and they are set out in the Certification. Upon these facts there have been framed nine questions of law, which by proliferation have become seventeen. They fall into three groups.
I. Questions touching the Constitutionality of certain provisions of the school laws.
II. Questions touching the validity of the election held in the Mount Pleasant Special School District.
III. Questions touching the validity of the assessment of real estate for county and school taxation by the board of assessment of New Castle County.
We take up the questions in the order presented. Such additional facts as are pertinent will appear hereafter at appropriate places in the opinion.
I. Questions touching the constitutionality of certain provisions of the school laws.
Is 14 Del. Code 1953, § 1902
unconstitutional as an invalid delegation of legislative power to school
districts in that it empowers said school districts to levy and collect taxes
for school purposes upon the assessed value of real estate in said school
districts, as determined and fixed for county taxation purposes?
Plaintiff contends that the delegation of taxing power to an appointive administrative body is unconstitutional. The argument is that the power of taxation is a legislative power; that school districts are not municipal corporations exercising general legislative functions, but mere administrative agencies of the state created solely for the purpose of a convenient and effective administration of the school system, Coyle v. McIntire, 7 Houst. 44, 89,30 A. 728; In re School Code of 1919, 7 Boyce 406, 411,108 A. 39; and that the power of taxation, which is inherently legislative in nature, may not be delegated to such an administrative board. Plaintiff invokes the general principle stated in 51 Am.Jur. ‘ Taxation’, § 114.
[34 Del.Ch. 388] The foundation of this principle, and of plaintiff's argument, is the doctrine of separation of powers. This doctrine broadly stated is that a function inherently legislative may not be delegated to the executive or to the judiciary; and similarly,
functions executive or judicial in nature may not be delegated to one of the other branches of government. The instant case concerns the delegation of a legislative function to an administrative body-an arm of the executive branch.
We have recently had occasion to examine the extent to which the doctrine of separation of powers prevails in Delaware and have held that it does not obtain in full force as it does in some of the states. See
Opinion of the Justices, Del., 88 A.2d 128; Trustees of the New Castle Common v. Gordy, Del., 93 A.2d 509.
In the Opinion of the Justices we considered statutes conferring executive duties upon the judiciary. We said that the chain of such legislative enactments over a long period of time afforded a practical construction by the people of the State through their representatives of the doctrine of separation of powers, which had been reinforced by tacit recognition of bench and bar.
The case before us supplies another example of such a practical construction, and-what is even more important-approval, as well as tacit recognition, by the courts.
From the very beginning of public education in this State the power of school districts to levy taxes for school purposes has been asserted by the General Assembly, acquiesced in by the people, and sustained by the courts. The Act of 1830, 8 Del.L.Ch. 21, § 5, contains a provision delegating the power of taxation to school districts. In Steward v. Jefferson, 1841, 3 Har. 335, the constitutionality of this act was assailed on the ground, among others, that the power of taxation could not be so delegated. The question was reserved by the Superior Court for the Court of Errors and Appeals. That court held, although without opinion, that the act was constitutional.
The opinion of the Court en Banc in Husbands v. Talley, 1901, 3 Pennewill 88,47 A. 1009, sketches the development of the school laws of this State from Colonial times. It shows clearly that [34 Del.Ch. 389] after the adoption of the Act of 1830 the General Assembly continued to confer the power of taxation upon the school districts.
After the adoption of the new School Code of 1919 the Governor sought and obtained the opinion of the Chancellor and the Judges with respect to its constitutionality. In re School Code of 1919, supra. Among other objections it was urged that legislative power had been unlawfully delegated to the school districts. The precise question here presented, that of the delegation of the power to tax, was not specifically discussed; but the Code was held to be constitutional.
In Mayor and Council of Wilmington v. State ex rel. Du
Pont, 5 Terry 332, 44 Del. 332, 57 A.2d 70, the power of the Wilmington Board of Education (a non-elective school board) to determine the amount to be collected by taxes for school purposes in the City of Wilmington was assailed and was upheld by the Supreme Court. The constitutional question was not raised by counsel or noticed by the court ; but the case is another instance of the long continued and unchallenged right of the General Assembly to delegate to school districts the power of taxation.
In this State the legislative power to delegate the right to tax to the school districts is analogous to the power to delegate the right to counties and municipalities of the State. As to them, we suspect it has never occurred to any one to question it.
But at this point plaintiff advances an attempted distinction, as respects the delegation of the taxing power, between public bodies corporate, such as municipalities, and public bodies non-corporate and administrative only. Until comparatively recent times school districts were incorporated. Hence, says plaintiff, the principle of long and unquestioned exercise of power does not apply to school districts. This for the reason that it is constitutional, according to plaintiff, to delegate the taxing power to public bodies corporate, but unconstitutional to delegate it to unincorporated bodies. But what [34 Del.Ch. 390] reason can there be to make such a fine-spun distinction? The question before us is the fundamental one
of the constitutional power of the General Assembly to confer the power of taxation upon public bodies. If, through an asserted power too firmly entrenched by time to be dislodged, the legislature may confer the taxing power upon a public body corporate, why not upon a public body non-corporate? What is the special bearing of the corporate form upon the constitutional question? We think the attempted distinction wholly unsubstantial.
Plaintiff leans heavily on the case of Wilson v. Philadelphia School District, 328 Pa. 225, 195 A. 90, 113 A.L.R. 1401. There the Supreme Court of Pennsylvania denied the right of the legislature to delegate the power of taxation to an appointive school board. The case for the application of the doctrine of the separation of powers is in that opinion forcefully and persuasively presented. But we think the question is no longer an open one in this State. In effect it was set at rest more than one hundred years ago by the case of
Steward v. Jefferson, supra. It is too late at this date to question the power of the General Assembly to confer upon local school districts the power of taxation.
We hold that the statutes conferring upon school districts the power of taxation are not unconstitutional as a delegation of legislative power.
Is 14 Del.Code 1953, § 1902 unconstitutional by reason of Art. X, § 1, of the Constitution of the State of Delaware, Del.C.Ann.,
requiring a uniform system of free public schools and Art. VIII, § 1, of
said Constitution requiring all tax to be uniform?
The argument in support of this contention is diffuse, and we have had some difficulty in stating it succinctly. It appears to proceed as outlined in the following paragraph:
Art. X, § 1 requires the system of education to be established by the General Assembly to be ‘ general’ . The Debates of the Constitutional [34 Del.Ch. 391] Convention of 1897 show that ‘ general’ means ‘ state-wide and uniform’ . The present administration of the school laws through school districts has not achieved the required uniformity. The districts are only historical accidents. In particular, the system of taxation, to be state-wide and uniform, must be uniform throughout the State. Since § 1902 fixes no minimum or maximum rate of taxation in the school districts, the result is unequal taxation in the various districts. Hence the tax system is not uniform and the provisions of 14 Del.C. § 1902 are unconstitutional.
The development of this argument is not wholly clear to us. In some portions of her brief, plaintiff appears to assail the whole system of administering the educational system through local school districts. Statistics and other data are submitted tending to show that the total amounts of money allocated to the various districts by the State, and the rates of taxation prevailing therein, differ greatly. From this it is suggested that uniformity in the school system does not exist.
Plaintiff does not appear to push this argument to the length of saying that the entire school system of the State must be overthrown. It appears to us from the oral argument that the substance of her objection is the lack of uniformity in the rate of taxation in the different districts.
Plaintiff's argument ignores the fundamental basis of the State's educational system. This basis consists of the establishment by the General Assembly of minimum standards of financial support and of administration of the school system throughout the State, supplemented by additional local financing to the extent approved by the local districts. The Debates of the Constitutional Convention of 1897, referred to by plaintiff, lend no support whatever to the suggestion that the members of the constitutional convention, in seeking to establish a state-wide educational system, were attempting to do away with the local school districts or the raising of additional school funds in those districts in such amounts as they might determine.
Uniformity in administrative matters was no doubt sought and, as is well known, has now been largely achieved. But uniformity [34 Del.Ch. 392] in respect of local taxation was not envisaged; indeed, the opposite inference is the reasonable one.
There is no constitutional requirement that the rate of taxation in the local districts shall be uniform. The requirement for uniformity in the rate of taxation, contained in Art. VIII, § 1 of the Constitution, is specifically limited to ‘ the same class of subjects within the territorial limits of the authority levying the tax’ . The opinion in the School Code case, supra [7 Boyce 406, 108 A. 42], expressly holds that as to school taxes " the territorial limits" referred to in the Constitution are the limits of the school district levying the tax.
We find no substance in this objection.
Question 1(c) is as follows:
Is 14 Del.Code 1953, § 1902 unconstitutional as an invalid delegation of legislative power by reason of the omission therein of an adequate standard or standards for the guidance of said school districts in fixing the tax rate in said districts?
The argument here is that the policy of the General Assembly to fix maximum and minimum rates of taxation in the several school districts is an omission to fix standards by which an administrative body must be governed in administering a statute. The argument appears to be that even though the power to tax may be delegated to a school district, such power must be limited by some standard, that is, by the fixation of a maximum or minimum rate of tax. But if the power of taxation may be delegated, it is difficult to see why the power to determine the amount to be raised and the rate of taxation may not be delegated. Unless specifically withheld, these powers follow as necessary elements of the power to tax. Such has been the uniform practice in this State for many years. The case of
Husbands v. Talley, supra, impliedly recognizes the principle that the General Assembly need not impose limits upon a school district's tax levy. It holds that the Act of May 12, 1898, 21 Del.L.Ch. 67, repealed by implication the limitation theretofore imposed by law upon the amounts to be raised by taxation in the school districts. [34 Del.Ch. 393] Referring to the provisions of Paragraph 4 of Section 14 of the Act of 1898, conferring the power to raise ‘ any sum above that required by law’, the Court said [ 3 Pennewill 88,47 A. 1013]:
‘ Said general grant of power in paragraph 4 carries with it the authority to raise any sum for the purposes of the act within the district’ .
Once again, we think it too late now to question the power of the General Assembly in this regard.
Moreover, the authorities cited in support of the argument that the legislature must fix a ‘ standard’ of taxation, i. e., a maximum or a minimum rate, are not in point. The case of Hoff v. State, 9 W.W.Harr. 134, 39 Del. 134, 197 A. 75, has no bearing upon the matter. It deals with a statute enacted under the police power regulating the business of conducting beauty shops, and holds that the failure to prescribe standards of regulation of the business is an unconstitutional delegation of legislative power. The case of Mayor and Council of City of Hoboken v. Martin, 123 N.J.L. 442, 9 A.2d 332, 334, is likewise not in point. It concerns a statute levying a gross receipts tax upon public service corporations and directing the State Tax Commissioner fairly and equitably to apportion the proceeds of the tax among the municipalities in which any property of such corporations might be located. The instant case concerns a wholly different question, viz: the power to delegate to local school districts the right to fix the tax rate.
We are of opinion that the assailed statutes are not unconstitutional for failure to impose ...