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Opinion of the Justices

Supreme Court of Delaware

September 12, 1967

OPINION OF THE JUSTICES of the Supreme Court in Response to Question Propounded by the Governor of Delaware.

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To His Excellency Charles L. Terry, Jr., Governor of Delaware.

Reference is made to your letter dated August 4, 1967, addressed to the Chief Justice, requesting the members of the Supreme Court for their opinions, under 29 Del.C. § 2102, [*] as to the constitutionality of a recent Amendment adding a new Chapter 26 to Title 14 of the Delaware Code. The Amendment, entitled 'AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE BY PROVIDING FOR RAISING AND COLLECTION OF REVENUE

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FOR COUNTY VOCATIONAL-TECHNICAL HIGH SCHOOLS AND COUNTY VOCATIONAL-TECHNICAL CENTERS', was enacted by the General Assembly and was approved by the Governor on August 2, 1967. The Act is identified in your letter as Senate Bill No. 205 as amended by Senate Amendment No. 1.

The specific question presented is this:

'Does Senate Bill $205, as amended, having originated in the Senate, violate Article VIII, Section 2, of the Constitution of the State of Delaware?'

Art. 8, § 2 of the Delaware Constitution, Del.C.Ann., provides as follows:

'All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose alterations as on other bills; and no bill from the operation of which, when passed into a law, revenue may incidentally arise shall be accounted a bill for raising revenue; nor shall any matter or cause whatever not immediately relating to and necessary for raising revenue be in any manner blended with or annexed to a bill for raising revenue.'

Before entering upon a discussion of the merits of the question, we note that disposition of the problem could be made under the Enrolled Bill Doctrine, reaffirmed recently in Opinion of the Justices, dated July 7, 1967. Del., 232 A.2d 103. Upon the Governor's request for an opinion, the members of this Court endeavor, insofar as possible, to look upon the question as though presented upon a regular appeal. In an ordinary case, the fact that the subject Act was a Senate Bill would not be before us because irrelevant under the Enrolled Bill Doctrine. Since the Act was enacted and authenticated by the General Assembly and having been signed into law by the Governor, the regularity of the legislative action leading to the enactment ordinarily would be conclusively presumed. It is generally held under the Enrolled Bill Doctrine evidence outside of a revenue act itself will not be admitted to impeach the act on the theory that it did not originate in the lower house. E.g., Rainey v. United States,232 U.S. 310, 34 S.Ct. 429, 58 L.Ed. 617 (1914); Milkell v. School Dist. of Philadelphia,359 Pa. 113, 58 A.2d 339, 4 A.L.R.2d 962 (1948). However, in view of the importance you obviously place upon the substantive question involved, we have decided to proceed to a consideration thereof, noting nonetheless the continuing vitality of the Enrolled Bill Doctrine under ordinary circumstances.

The Act in question provides that any County Vocational Technical High School District or County Vocational Technical Center District may, in addition to the amounts appropriated to it by the General Assembly, levy and collect taxes for local school purposes upon the assessed value of real estate within the District. The board of trustees of each district is empowered to establish the tax rate within specified limitations. The Department of Finance of New Castle County and the Receivers of Taxes and the County Treasurers of Kent and Sussex Counties are directed to collect taxes thus levied. The Act provides:

'All money so collected shall be paid to the State Treasurer and shall be deposited by him in a separate account in the depository for other school moneys to the credit of the District.'

The Act also provides:

'Warrants or drafts on the said fund shall be drawn by the School Board of the District and shall be applied only for the purpose for which the levy is made.'

This Act is not, in our opinions, a revenue-raising bill within the meaning of Art. 8, § 2 of the Delaware Constitution.

The requirement of Art. 8, § 2, that '(a)ll bills for raising revenue shall originate in the House of Representatives', was taken from Art. 1, § 7 of the Constitution of the United States. It appeared in the Delaware Constitutions of 1792 and 1831 (Art. 2, § 14) and was carried therefrom

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into our present Constitution. See 2 Delaware Constitutional Debates, 1897, pp. 1412--1415. The provision was also taken from the Federal Constitution by many other states and included in their constitutions.

It is generally agreed by both federal and state courts that to qualify as a revenue-raising bill, within the purview of this constitutional provision, the money derived from the tax imposed must be available for the general governmental uses and purposes of the taxing sovereignty, i.e., for defraying its general governmental expenses and obligations. This principle was recognized by our Superior Court in Yourison v. State, 3 W.W.Harr. 577,140 A. 691 (1928), involving a statute which authorized a tax on boats. The concept is more fully enunciated in United States v. Norton,91 U.S. 566, 23 L.Ed. 454 (1876); Twin City Nat. Bank of New Brighton v. Nebecker,167 U.S. 196, 17 S.Ct. 766, 42 L.Ed. 134 (1897); Evers v. Hudson,36 Mont. 135, 92 P. 462 (1907); Chicago B. & Q.R. Co. v. School Dist. No. 1,63 Colo. 159, 165 P. 260 (1917); Mikell v. School Dist. of Philadelphia, supra. Widely quoted in this connection is the language of Mr. Justice Story in United States v. Mayo (C.C.1813), Fed.Cas.No.15,755, 1 Gall. 396, that 'revenue laws' mean such laws 'as are made for the direct and avowed purpose of creating and securing revenue or public funds for the service of the government.' Also much quoted is the statement in 1 Story on the Constitution (5th Ed.) Sec. 880, that the constitutional limitation here under consideration 'has been confined to bills to levy taxes in the strict sense of the words.' See Annotation, 4 A.L.R.2d 973--990.

The corollary of the above rule is that laws delegating authority to local governmental units to levy and collect taxes for local purposes are not bills for 'raising revenue' within the meaning of that term as used in the constitutional requirement. Compare Morgan v. Murray,134 Mont. 92, 328 P.2d 644 (1958). Specifically, statutes authorizing local governmental bodies to levy taxes for school purposes, the proceeds of which are to be used for the benefit of local schools only, are regarded as being outside the scope of the constitutional requirement here under consideration. Cassady v. Oldham County,246 Ky. 772, 56 S.W.2d 368 (1933); Evers v. Hudson, supra; Mikell v. School Dist. of Philadelphia, supra; Chicago B. & Q.R. Co. v. School Dist. No. 1, supra.

We are of the opinion that Art. 8, ยง 2 is confined to bills raising revenues for defraying the expenses and obligations of the general government of the State. This strict construction is impelled not only by the authorities but also by the constitutional background ...

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