State v. Mayor And Council of Wilmington

• Decision Date: 16 June 1926
• Parties: STATE OF DELAWARE, ON THE RELATION OF THE VOLUNTEER FIREMEN'S RELIEF ASSOCIATION OF WILMINGTON, DELAWARE, a corporation of the State of Delaware, v. THE MAYOR AND COUNCIL OF WILMINGTON, ET AL
• Court: Delaware Superior Court

134 A. 694

33 Del. 238

STATE OF DELAWARE, ON THE RELATION OF THE VOLUNTEER FIREMEN'S RELIEF ASSOCIATION OF WILMINGTON, DELAWARE, a corporation of the State of Delaware, v. THE MAYOR AND COUNCIL OF WILMINGTON, ET AL

Superior Court of Delaware, New Castle County

June 16, 1926

Superior Court for New Castle County, March Term, 1926.

Petition for a Writ of Mandamus, No. 254, September Term, 1922.

The petition asking for a rule to show cause why an alternative writ should not issue was filed October 6, 1922; the issuance of said rule was waived by counsel for the respondent who agreed to the issuance of the alternative writ to which an answer was duly filed.

The matter is now before the Court upon the respondents' motion to quash the alternative writ, argument upon which was heard at the March term, 1926.

The motion to quash the writ is granted.

Henry R. Isaacs for petitioner.

Caleb S. Layton for respondents.

PENNEWILL C. J., HARRINGTON and RICHARDS, J. J., sitting.

OPINION

RICHARDS, J.

Prior to December 1, 1921, the various fire companies of the city of Wilmington were private companies, owning their own fire houses, engines and equipment and the city in its corporate existence took no part in their management and control.

The Legislature of 1921 passed an act entitled, "An Act creating a Department of Public Safety for the City of Wilmington, and prescribing its powers and duties." 32 Del. Laws, c. 111. This act was approved by the Governor and became a law on March 16, 1921. The said act authorized the "Mayor and Council of Wilmington" through the "Department of Public Safety," on and after May 1, 1921, to establish a fire department for the city, and take over for public use by purchase, compromise condemnation or otherwise, such real and personal property of the several fire companies of Wilmington as were in existence and recognized by the "Mayor and Council of Wilmington" as a part of the fire department of the city, on September 1, 1918.

Section 13 of the act further provided as follows:

"Within three months after the taking over by the 'Department of Public Safety,' of the real and personal property of the several fire companies, the said 'the Mayor and Council of Wilmington' shall pay to the proper officers of the Volunteer Firemen's Relief Association, the sum of fifteen thousand dollars, the same being in full payment for all claims and demands whatsoever."

It appears from the petition and alternative writ that the real and personal property of the several fire companies was taken over by the "Department of Public Safety" on or about December 1, 1921; and it further appears that the three months period within which "the Mayor and Council of Wilmington" was required under the provisions of Section 13 of the act above mentioned to pay to the proper officers of the "Volunteer Firemen's Relief Association," the sum of fifteen thousand dollars, has expired but that said amount has not been paid.

An examination of the petition discloses that the relator is a private corporation existing under the laws of this state for the purpose of acting for the benefit of the members of the old volunteer fire companies. It is contended by the relator that during its existence it has been a benefit to its members, a large part of whom are members of the present paid fire department of Wilmington.

It is contended by the respondents that Section 13 of the act in question is unconstitutional for three reasons:

1. Because the appropriation of $ 15,000 provided for therein is not for a public purpose.

2. Because it is in violation of Section 8 of Article 8 of the Constitution of this State, which provides as follows:

"No county, city, town or other municipality shall lend its credit or appropriate money to, or assume the debt of, or become a shareholder or joint owner in or with any private corporation or any person or company whatever."

3. Because it violates Section 16 of Article 2 of the Constitution of this state, which provides as follows:

"No bill or joint resolution, except bills appropriating money for public purposes, shall embrace more than one subject, which shall be expressed in its title."

The purposes for which governments, or their political subdivisions, can make appropriations of money has been generally held to be closely identified with the right to tax. This right to tax is not necessarily a constitutional right, but is inherent in every sovereign state; it is a necessary attribute of sovereignty which underlies it and without which organized government could not exist. McCulloch v. State of Maryland, 17 U.S. 316, 4 Wheat. 316, 428, 4 L.Ed. 579, 607; Nathan v. Louisiana, 49 U.S. 73, 8 How. 73, 12 L.Ed. 992; State Board of Tax Commissioners v. Holliday, 150 Ind. 216, 49 N.E. 14, 42 L. R. A. 826; Redmond v. Town of Tarboro, 106 N.C. 122, 10 S.E. 845, 7 L. R. A. 539; Hill v. Higdon, 5 Ohio St. 243, 67 Am. Dec. 289; Cooley on Taxation, vol. 1, § 57.

This power to tax is the strongest and most far-reaching of all governmental powers; as expressed by Chief Justice Marshall, in the case of McCulloch v. State of Maryland, above cited, it includes the power to destroy, consequently the principle seems to be as well settled as the right to tax, that no tax can be levied except to raise money which is to be appropriated or expended for a public purpose.

Therefore, since the power of the state to raise money by taxation is restricted to such uses as are for the public good, it naturally follows that money raised by this means cannot be expended except for the benefit of the public, and that appropriations of public funds can only be made for those purposes which are for the public use. Citizen's Saving & Loan Ass'n v. Topeka, 20 Wall. 655, 22 L.Ed. 455; Washingtonian, etc., v. Chicago, 157 Ill. 414, 41 N.E. 893, 29 L. R. A. 798; Beach v. Bradstreet, 85 Conn. 344, 82 A. 1030, Ann. Cas. 1913B, 946; Opinion of the Justices, 155 Mass. 598, 601, 30 N.E. 1142, 15 L. R. A. 810; Baltimore, etc., R. Co. v. Spring, 80 Md. 510, 31 A. 208, 27 L. R. A. 72; Anderson v. Kerns Draining Co., 14 Ind. 199, 77 Am. Dec. 63; Mahon v. Board of Education, 171 N.Y. 263, 63 N.E. 1107, 89 Am. St. Rep. 810; Asbury v. Albemarle, 162 N.C. 247, 78 S.E. 146, 44 L. R. A. (N.S.) 1189; State v. Lynch, 88 Ohio St. 71, 102 N.E. 670, 48 L. R. A. (N.S.) 720, Ann. Cas. 1914D, 949.

It is not contended that the relator is a public corporation, but it is contended that it serves the public which it has been doing for a number of years and that the funds which come into its possession are used for public purposes. We are, therefore, confronted with the plain proposition, whether the appropriation of $ 15,000 made by Section 13 of the act, to the proper officers of the Volunteer Firemen's Relief Association, is for the benefit of the public.

Before the establishment of a paid fire department the residents of Wilmington were compelled to depend upon the various volunteer fire companies for protection against fire, but they had no part in their management. The members of these volunteer fire companies were not employees of the city, although the companies were recognized by the city as its only protection from fire and said members, in the discharge of their duties, rendered a service to the public.

True it is that the Volunteer Firemen's Relief Association, a private corporation, was created by the members of the various volunteer fire companies for their own relief and protection, but it does not appear that the city of Wilmington had any power or control in the management of its affairs. It is not denied that the Association was a benefit to its members, just as any other organization of that character would be a benefit to its members, but we fail to see how it can be argued from that fact alone that it was a benefit...