Conard v. State

• Decision Date: 28 October 1940
• Citation: 41 Del. 107,16 A.2d 121
• Court: Delaware Superior Court
• Parties: JOHN CONARD, JR., Defendant Below, v. THE STATE OF DELAWARE, Plaintiff Below

16 A.2d 121

41 Del. 107

JOHN CONARD, JR., Defendant Below, v. THE STATE OF DELAWARE, Plaintiff Below

Superior Court of Delaware, Kent County

October 28, 1940

[Copyrighted Material Omitted]

Superior Court for Kent County, July Term, 1939.

Certiorari to review a judgment of conviction by a Justice of the Peace.

On June 23, 1939, John Conard, Jr., a resident of Delaware, was charged before a Justice of the Peace for Kent County with having engaged in the business of carrying fishing parties for hire in a boat not propelled exclusively by oars, named "Miss Fortescue," for the purpose of fishing in the waters of the Delaware River, Delaware Bay, and that part of the Atlantic Ocean under the jurisdiction of the State of Delaware, without first obtaining an annual license for said boat from the Board of Game and Fish Commissioners of the State of Delaware, in violation of the statutes of the State. Section 2884 of the Revised Code of 1935, 40 Del. Laws, Chap 202, provides, in part, as follows:

"It shall be unlawful for any person, firm or corporation to engage in the business of carrying fishing parties, for hire, in any boat or boats for the purpose of fishing in the waters of the Delaware River, Delaware Bay, and that part of the Atlantic Ocean under the jurisdiction of the State of Delaware, without first obtaining an annual license for each boat from the Board of Game and Fish Commissioners of the State of Delaware; provided, however, nothing in this Section shall apply to boats propelled exclusively by oars."

The boat license for a resident of the State was fixed at $ 10, and for a non-resident $ 50. With respect to a resident the minimum fine for a violation of the act was fixed at $ 50, and forfeiture of the boat or boats, while in the case of a non-resident the minimum fine was fixed at $ 100.

The defendant was convicted of the offense charged, and was sentenced to pay a fine of $ 100 and costs and to suffer the forfeiture of the boat, "Miss Fortescue."

Some ten exceptions have been filed which may generally be considered as raising three questions, as follows:

1. That the quoted statute is void by reason of the exemption therefrom of persons who carry fishing parties for hire, in boats propelled exclusively by oars, it being claimed that such exemption is in violation of

(a) the 14th Amendment of the Constitution of the United States;

(b) of Article 8, Sec. 1 of the Constitution 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.

2. That the statute is void because of the discrimination in favor of residents and against non-residents with respect to the license fees and the pecuniary penalties, such discrimination being invalid under the 14th Amendment.

3. That the statute is void because its subject comes within the contemplation of the Compact of 1905 entered into between the States of Delaware and New Jersey and approved by Congress and is in violation of the uniform laws passed pursuant to such Compact.

The exceptions overruled, and the judgment affirmed.

James M. Tunnell, Jr., and P. Warren Green for the Defendant Below.

James R. Morford, Attorney-General, and William J. Storey, Deputy Attorney-General, for the State.

RODNEY and SPEAKMAN, J. J., sitting.

OPINION

RODNEY, J.

Some preliminary and passing attention should be accorded the question as to whether the pertinent statute is an exercise of the police power of the State, or whether its main purpose is the raising of revenue. While not of primary importance, the question has materiality as touching the question of classification of the subjects of the license and of discrimination, for under the police power, the legislative control is not concerned with the identical rules as in the imposition of taxes. In Yourison v. State, 3 W. W. Harr. (33 Del.) 577, 140 A. 691, the court construed a statute, substantially the same as the one now under consideration, and reached the conclusion that it was not a revenue measure. That court recognized that the statute there considered, like the present, contained no express words giving any authority to refuse a license; that court, unlike ourselves, felt that the authority to grant a license implied the power to formulate governing standards and to refuse to issue a license for a boat which the issuing authority considered unsafe, or which was owned by a person whom it considered unfitted to have charge of its operation.

It is frequently difficult to determine whether the imposition of a charge or fee by the government is an exercising of the police power or of the taxing power. If the imposition has for its primary object the discouragement of dangerous employments, the protection of the safety of the public, or of citizens, or the regulation of relative rights, privileges or duties as between individuals, then the legislation may fairly be regarded as an exercise of the police power for the public welfare. A fair test may be that when a fee is exacted and something is required or permitted in addition to the payment of the sum, either to be done by the licensee, or by some regulation or restriction imposed upon him, then the fee is a license fee or license tax under the police power. When the payment of the fee allows the carrying on of the business without the performance of any other condition, and the license is subject to no restriction or regulation, and no option exists to refuse the issuance of the license, then the payment of the license fee is a tax for revenue. In the cited act there is nothing to be done but the payment of the fee. No examination of the boat or operator is provided for, and no option or power appears vested in the issuing authority to refuse the license upon tender of the prescribed fee. It would seem to us that the act is an act to raise revenue, and not passed under the general police power of the State.

We must now consider the objections, as raised by the defendant below.

1. The defendant below insists that the exemption of oar-propelled boats makes the act unconstitutional under the 14th Amendment to the Federal Constitution in that he is denied equal protection of the laws, and that it is unconstitutional under Section 1 of Article XIII of the State Constitution in that the tax is not made uniform upon the same class of subjects.

In either case the constitutionality of the act is to be determined by the reasonableness of the classification attempted. The governing rules are largely the same, and generally a tax violating one of the provisions violates the other. 1 Cooley Taxation, § 249; § 331.

The question, therefore, is whether classifying separately boats propelled exclusively by oars, and exempting them from the operation of the act, is a reasonable exercise of the legislative power of classification.

It is generally agreed that a classification for the purpose of taxation, not purely arbitrary but based on reason, is entirely proper; and that uniformity as applied to occupation taxation simply means taxation that acts alike on all persons similarly situated. The differences upon which the classification is based need not be great or conspicuous; nor is it necessary that the court perceive the precise legislative reason for the classification, for if any state of facts can reasonably be conceived that would sustain the classification, the existence of that state of facts at the time of the enactment of the law must be assumed. There is, of course, no fixed standard by which the reasonableness of the classification can be measured, and each case must stand upon its own particular facts. The Legislature has a broad discretion in the matter of classification, and the courts will not assume to review the classification unless it is clearly arbitrary. The courts will not assume to substitute their judgment as to what is reasonable and proper, or whether the classification is the wisest or best that could be made, and the classification will be held valid if the court is able to see that the Legislature could regard it as reasonable and proper without doing violence to common sense.

The constitutionality of the act is, of course, presumed; and it follows that the reasonableness of the classification is also presumed, and that the burden rests upon the objector to show that it is unreasonable. See 1 Cooley Taxation 334.

Having regard for the rules that govern and guide the courts in the determination of questions of classification in matters of taxation, we are not persuaded that the classification is without a reasonable and proper basis. The occupation is, of course, the same whether pursued in boats propelled exclusively by oars or by other means of propulsion; but it is entirely possible for the legislative body to conclude that because of the extremely limited numbers that may be carried in a boat propelled exclusively by oars, the financial return must be little, and having in mind the physical labor involved, so negligible as might properly be exempted from the imposition of the license charge altogether.

The discrimination against boats propelled in some manner other than by oars seems not clearly unreasonable for the reason that oar-propelled boats may have been deemed to afford little or no competition. The facilities for profit are not the same and a tax exaction may, and perhaps should, bear relation to the amount of a business or occupation. The following cases sustain these views: Quong Wing v. Kirkendall, 39 Mont. 64, 101 P. 250; Id., 223 U.S. 59, 32 S.Ct. 192, 56 L.Ed. 350; Town of Sumner v. Ward, 126 Wash. 75, 217 P. 502; Young v. City of Lexington, 235 Ky. 822, 32 S.W. 2, 32 S.W.2d 410d 410; Brannan v. Harrison, 172 Ga....