Brennan v. Black
| Decision Date | 27 April 1954 |
| Citation | 104 A.2d 777,34 Del.Ch. 380 |
| Parties | BRENNAN v. BLACK et al. |
| Court | United States State Supreme Court of Delaware |
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.
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.
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.
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.
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, funtions 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 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. 1
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...
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