Consolidated Fisheries Co. v. Marshall

• Decision Date: 06 May 1943
• Court: Delaware Superior Court
• Parties: CONSOLIDATED FISHERIES COMPANY, defendant below appellant, v. JAMES O. MARSHALL, Treasurer of the Town of Lewes, plaintiff below respondent

32 A.2d 426

42 Del. 283

CONSOLIDATED FISHERIES COMPANY, defendant below appellant, v. JAMES O. MARSHALL, Treasurer of the Town of Lewes, plaintiff below respondent

Superior Court of Delaware, Sussex County

May 6, 1943

Superior Court for Sussex County, February Term, 1943.

Appeal from a judgment of a Justice of the Peace.

Judgment for the plaintiff.

James M. Tunnell, Jr., for the plaintiff below.

Caleb R. Layton, 3d, (of Hastings, Stockly and Layton) for the defendant below.

LAYTON C. J., and TERRY, J., sitting.

OPINION

LAYTON, Chief Justice:

The defendant corporation holds under a lease from Commissioners of Lewes, a municipal corporation, certain public or vacant lands adjacent to the corporate limits of the Town of Lewes at a yearly rental of $ 1312.00, on which lands, during the year 1942, were certain buildings and improvements. Under the authority of Chapter 170, Volume 43, Delaware Laws, entitled "An Act to Re-Incorporate The Town Of Lewes," the buildings and improvements were assessed for taxation in the sum of $ 20,000.00, and a tax of one percent was levied thereon, becoming due and payable on April 1, 1942. The defendant refused to pay the tax. The plaintiff, treasurer of the Town, sued before a Justice of the Peace to recover the amount of the tax so assessed and levied, and recovered judgment in the sum of $ 200.00. The defendant appealed and, by agreement, the cause was submitted to the Court for decision on a stipulation of facts.

For many years the Town of Lewes, by legislative authority, has been vested with jurisdiction over certain state owned lands within and without the corporate limits of the Town. In 1871 jurisdiction over all the public and vacant lands lying within the corporate limits of the Town was vested in the Town, and authority was given to lease portions of such lands to persons who would agree to improve them upon such time and terms as was deemed proper for the benefit of the Town. Buildings and improvements put on such lands enclosed without the Town's permission were declared forfeited to the Town. Authority was given to assess a ground rent at a certain amount on persons having buildings on any of the public lands, and to assess persons having enclosed or claiming the use or privilege of any of the lands a tax not exceeding six percent of the assessed value of the lot or lots so enclosed or claimed. Ch. 114, Vol. 14, Del. Laws. By Chapter 536 of the same volume, all the public and vacant lands contiguous to but outside the corporate limits of the Town and fronting on the Bay to the extent of one mile along the beach were vested in the Town with the same jurisdiction and authority over them, and with the same rights and powers in relation to them as were conferred in regard to public and vacant lands within the corporate limits of the Town. In 1885, the Town was authorized to assess any person occupying, enclosing or claiming the use or privileges of any of the public lands within the limits of or vested in the Town and not held under a lease from the Commissioners at a certain rent, a tax not exceeding six percent of the assessed actual value of the land so enclosed, occupied or claimed, and two percent of the actual value of the improvements thereon. With respect to persons holding public land under lease from the commissioners at a certain rent the Town was authorized to assess a tax against them at the same rate on the value thereof and improvements thereon, after deducting the value of the ground at the period of reservation of the rent, the value to be estimated at one hundred dollars for every six dollars reserved, and so for a greater or less sum of rent. Ch. 563, Vol. 17, Del. Laws.

In 1907, the Town of Lewes was re-incorporated, (Ch. 220, Volume 24, Del. Laws). Section 7 of the Act, in part, reads:

"All the public and vacant lands lying within the corporate limits of said town of Lewes, and all the public or vacant lands contiguous to but outside the corporate limits of said town and fronting on the Bay between the point of Cape Henlopen on the south and Veasey's Inlet on the north, shall be vested in the Commissioners of Lewes and the said Commissioners shall have jurisdiction over the same; and all ordinances adopted by the said Commissioners shall have the same force over and upon the said public and vacant lands as within the corporate limits of said town, and the said Commissioners are hereby authorized to lease, to persons who will improve or agree to improve the same, such portions of said public lands for such time and upon such terms as they, the said Commissioners, may deem proper for the interest and benefit of said town; and if hereafter any person or persons shall, without the permission and consent of the said Commissioners, build upon any of said public lands, he, she or they shall forfeit such improvements or buildings to the said town; and the said Commissioners may assess or levy upon any person or persons occupying, enclosing or claiming the uses or privileges of any of the said public lands vested as aforesaid in the said Commissioners and not held under a lease from said Commissioners at a certain rent, without the sanction of any act of the Legislature of this State or law of the United States, a tax, not exceeding six per cent of the assessed actual value of the lands so enclosed, occupied or claimed, and two per cent of the actual value of the improvements thereon.

"A tax upon persons holding such public lands under a lease from said Commissioners at a certain rent, may be assessed or levied at the same rate at the assessed value thereof and the value of the improvements thereon, after deducting the value of the ground at the period of reservation of the rent, which value shall be estimated at one hundred dollars for every six dollars reserved, and so for a greater or less amount of rent."

The Town of Lewes was re-incorporated in 1941 by Chapter 170, Volume 43, Delaware Laws. By the first paragraph of Section 9 of the Act, the same general jurisdiction and authority over public and vacant lands within and without the corporate limits of the Town were confirmed. The second paragraph of the Section reads as follows:

"The said Commissioners may assess or levy upon any person or persons leasing, occupying, enclosing, or claiming the uses or privileges of any of the said public lands vested as aforesaid in the said Commissioners, and not held under a lease from said Commissioners at a certain rent which expressly includes taxes, and not held by virtue of the provisions of any act of the Legislature of this State otherwise providing, nor any law of the United States otherwise providing, a tax, not exceeding six per cent of the assessed actual value of the lands so leased, enclosed, occupied or claimed, and two per cent of the actual value of the improvements thereon."

Section 14 of the Act bears the heading, "Assessment Of Taxes." The Board of assessment is required annually to make an assessment of all the real estate within the town, "and of all the public or vacant lands within or without the corporate limits * * * which shall be occupied, enclosed, or the use or privilege thereof claimed by any person or persons, and of the improvements on said public or vacant lands;" and a duplicate is required to be delivered to the Commissioners "containing the names of all persons assessed and the amount of their assessment, distinguishing the real and personal assessment of each, and the assessment of those occupying, enclosing or claiming the use or privilege of any of the public or vacant lands aforesaid, and the improvements thereon."

Section 13 of the Act is headed, "Commissioners Power To Levy And Collect Taxes." A tax is authorized upon residents of the Town, and upon all the real estate within the town, not expressly exempted, "and upon all the public or vacant land within or without the limits of [the] town * * * which shall be occupied, enclosed, or the use or privilege thereof claimed by any person or persons, and upon the improvements on such public or vacant land."

Section 9 of the Act now in force is in substitution for Section 7 of the former Act. The first paragraph is in the same language to the point where authority to levy taxes is granted. The second paragraph is the same as the latter part of the first paragraph of Section 7 with these changes: the word "leasing" is interposed before the word "o...