The Philadelphia, Baltimore and Washington Railroad Co. v. The Mayor and Council of Wilmington

• Decision Date: 12 March 1948
• Citation: 57 A.2d 759,30 Del.Ch. 213
• Court: Court of Chancery of Delaware
• Parties: THE PHILADELPHIA, BALTIMORE AND WASHINGTON RAILROAD COMPANY, a corporation, v. THE MAYOR AND COUNCIL OF WILMINGTON

57 A.2d 759

30 Del.Ch. 213

THE PHILADELPHIA, BALTIMORE AND WASHINGTON RAILROAD COMPANY, a corporation, v. THE MAYOR AND COUNCIL OF WILMINGTON

Court of Chancery of Delaware, New Castle

March 12, 1948

S Samuel Arsht, of Morris, Steel, Nichols & Arsht, for plaintiff.

David F. Anderson, City Solicitor, for defendants.

OPINION

HARRINGTON, Chancellor.

This case involves the validity of a tax levied by the City of Wilmington for city and school purposes against property on which are erected buildings, commonly known as the "Wilmington Shops" of the Pennsylvania Railroad Company. The plaintiff's bill to enjoin the collection of the tax and to determine its rights is based on Chapter 106, Volume 21, Laws of Delaware, approved May 20, 1898, which provides:

"Section 1. It shall be the duty of the Board of Assessment, Revision and Appeals, in the City of Wilmington, as at present constituted, immediately after the annual assessment is made in each year for city and school purposes in said City, to classify the real estate so assessed in such a manner as to discriminate between the rural or suburban, and the built up portion of said City; and they are hereby required to certify to the Council of said City on or before the first day of June in each year, the valuation of the built up portions and the valuation of the rural or suburban property respectively and it shall be the duty of the Council in determining the rate of taxation for each year to levy a tax upon said rural or suburban property equal to one-half of the highest rate of tax required to be levied for said year; so that upon the real estate assessed in said City there shall be two rates of taxation.

"During the sittings of said Board of Assessment, Revision and Appeals in the month of April of each year any person interested shall be privileged to appeal to said Board as to the classification of any real estate under this act and it shall be the duty of said Board to hear such appeal and to determine the same according to justice and right.

"Section 2. It shall be the duty of the Assessors of said City to make assessments of property in conformity with the provisions of this act and to designate on their respective assessment lists the class in which said property shall be rated."

For many years the plaintiff has been the owner of a tract of land containing 36.38 acres, located in the northeast corner of the corporate limits of the City of Wilmington, bounded on the north by the city line and other lands belonging to the plaintiff, on the east and south also by lands of the plaintiff, and on the west by the main tracks or right of way of the Pennsylvania Railroad Company. It composes a part of the section of the city commonly known as the "Cherry Island Marsh". For many years prior to 1947 it was classified by the Board of Assessment of the City of Wilmington as rural or suburban property within the meaning of the Act of May 20, 1898. For the fiscal year beginning July 1, 1947, the Board, however, reclassified it from rural or suburban to property located in the built-up portion of the city and taxed it at the full rate. The land in question was originally marshland and was filled in by the plaintiff at its own expense, and substantially all of the adjacent land, except that west of the railroad tracks, is still marshland. The buildings thereon were erected on pilings. While the land taxed contains more than thirty-six acres, Todd's Lane is the only city street which approaches it, and it ends on the western side of the Pennsylvania Railroad tracks and, therefore, cannot be used as a means of access to the railroad property by automobiles or other vehicles. The plaintiff company has, however, constructed a foot bridge across the railroad tracks at the eastern end of Todd's Lane which can only be reached by the use of steps. Vandever Avenue of the City of Wilmington approaches other lands of the plaintiff company, some distance south of the "Wilmington Shops" and the only access to the latter by automobile or other vehicles is by a private road built by the plaintiff company over such adjoining lands and connecting with that avenue. With the exception of the old house on what was originally the Todd land, a neighboring house and a building used for the manufacture of purina, which is only partly within the northern limits of the city, no house or other building is nearer the plaintiff's land than approximately one-third of a mile to the west of it.

It appears from the agreed statement of facts that "there has been no change for many years in the nature or character of the lands and properties which adjoin and surround" plaintiff's land. The testimony shows that two Federal Housing Projects were developed on or near Vandever Avenue during the war: the Wilmington Housing Project or Eastlake Village, on Heald and Thatcher Streets, and the Riverview Park Development, on Claymont and Bowers Streets. Both are located, however, on land that has always been classified as urban or built-up property and are not less than six city blocks, or one-third of a mile, from the plaintiff's land. Eastlake Village is west of the Governor Printz, or North East Boulevard (which runs in a general northeasterly and southwesterly direction), and approximately six squares south of the Wilmington Baseball Park, which is on the west side of the boulevard and bounded on the north by Thirtieth Street, intersecting Todd's Lane at an angle a short distance east of the boulevard. The Riverview Park Development is on the east side of the boulevard. There are no city sewers on the plaintiff's property, and all sewage or drainage is taken care of by the plaintiff at its expense. The water supply is furnished by a private company affiliated with the plaintiff and likewise at the plaintiff's expense. There is, however, a standby connection with the city's water system which is maintained for emergency purposes only. The city does not light or clean the streets or roads on the tract or maintain them; nor does it collect the trash or garbage. All of this is done at the plaintiff's expense.

Prior to the year 1947, the Board of Assessment classified many of the outlying sections of the city, adjacent to the line, as rural or suburban property, but in that year it reclassified practically all of that property and assessed it at the full tax rate. In fact, the only land assessed by the Board as rural or suburban property in 1947 was marshland. The tax levied against the plaintiff's property for the year 1947 amounted to $ 16,753.20 and, had it been classified by the Board of Assessment as rural or suburban property, would have been half that amount ($ 8,376.60). The plaintiff appealed from the classification made by the Board but its appeal was denied. It then tendered the tax due, based on the one-half rate, alleged to have been provided for by the statute, but the city tax collector refused to accept that sum, and this action was instituted.

The pleadings raise three questions: (1) Whether the Board of Assessment of the City of Wilmington, in disregard of the facts, violated the plaintiff's rights by classifying its property for city and school tax purposes for the year beginning July 1, 1947 as real estate constituting a part of the built-up portion of the city and not as rural or suburban property; (2) whether the Act of May 20, 1898, Chapt. 106, Vol. 21, Laws of Del., was impliedly superseded and repealed by Chapter 121, Volume 28, Laws of Delaware, enacted in 1915; and (3) whether, in any event, Section 1 of Chapter 106, Volume 21, Laws of Delaware, violated Article VIII, Section 1 of the Delaware Constitution of 1897.

The second and third questions will be considered first.

The 1915 Act did not expressly repeal the prior Act of May 20, 1898, but merely purported to repeal "All acts or parts of acts manifestly inconsistent" therewith. Repeals by implication are not favored by the courts and in order for a subsequent Act to have that effect its provisions must be wholly inconsistent and irreconcilable with the prior Act. State v. Fahey, 2 W.W.Harr. (32 Del.) 504, 126 A. 730; State v. Donovan, 28 Del. 40, 5 Boyce 40, 90 A. 220; Mayor & Council of Wilmington v. State of Del., 5 Terry (44 Del.) 332, 57 A.2d 70. Repugnancy, and not a mere difference in the provisions of the two Acts, is the controlling question. Mayor & Council of Wilmington v. State of Del., supra. Subsequent statutory provisions sometimes justify the conclusion that they were intended to cover the entire subject matter of the prior Act, and therefore, to supersede it, but the language used must be so manifestly clear and comprehensive as to be conclusive evidence of the legislative intent. State v. Donovan, supra; Town of Seaford v. Eastern Shore Pub. Service Co., 2 Terry., (41 Del.) 438, 24 A.2d 436; State ex rel DuPont, Tax. Commissioner, v. Bradford, 7 W.W.Harr. (37 Del.) 289, 183 A. 316.

Section 1 of the Act of 1898 provides: "immediately after the annual assessment is made * * * for city and school purposes", it shall be the duty of the Board of Assessment, Revision and Appeals "to classify the real estate so assessed in such a manner as to discriminate between the rural or suburban, and built up portion of said City; * * *." The Board is also required to certify to the City Council "the valuation of the built up portions and the valuation of the rural or suburban property respectively." Furthermore, it is the duty of Council "in determining the rate of taxation for each year to levy a tax upon said rural or suburban property equal to one-half of the highest rate of tax required to be levied for said year; so that upon the real estate assessed in said City there shall be two rates of taxation."

The same section...