
    JOHN STEWARD vs. JOSHUA JEFFERSON.
    The supplement to the act for the establishment of free schools, authorizing a lax to be laid by a majority of the school voters in a district, held to be constitutional.
    Questions reserved by the Superior Court.
    The case stated set forth: — “That the defendant, Jefferson, as collector of school district No. 62, in New Castle county, in the month of January, A. D. 1836, destrained upon, seized' and sold the plaintiff’s cow for taxes assessed by the school committee of said district. It was admitted that the proceedings for the purpose of assessing the said tax were all regular under the law; and also that, at the meeting of the voters of said district, the plaintiff voted against the tax, and denied the right to levy the tax. The question submitted for the decision of the court was, the constitutionality of the law authorizing taxation by the determination and vote of a majority of the voters of a school district.
    I “Sec. 2. And be it farther enacted by the authority aforesaid, That no tax shall be levied or assessed in any school district by virtue of the supplement to the act entitled “An act for the establishment of free schools,” unless at the same meeting in which it shall be resol-Ived to raise a sum of money in such district, there shall upon a vote Iby ballot respecting a tax be a majority of votes for the tax, but no Isuch resolution shall be passed, and no vote respecting a tax shall be ;aken on any other day or time than at the stated annual meeting of :he school voters in such district, to wit: on the second Monday of Jctober, between the hours of one o’clock and five o’clock in the ifternoon of that day; and a greater sum than three hundred dollars shall not be raised by way of tax in any one district in any one year; )ut any balance remaining of a previous year shall not be included n said sum.”
    
      
      J. £. Bayard, for the plaintiff.
    The broad question is, whether the legislature can authorize the imposition of a tax on the citizens of any district, by the vote of a majority of the inhabitants or voters of such district. (8 Del. Laws 24, sec. 5, 171-2.)
    A citizen of the State who does not reside in the district may by the act be taxed, without having the right to vote, and when he can derive no benefit from it; as he can neither send his own children nor other children. This violates the first principle of a republican government that, as to citizens, taxation goes with and is dependent on representation.
    Wherever a power of high discretion is vested in any officer or body, it cannot be delegated to any other. (3 Dallas 388.) There is no power of higher discretion than that of taxation; and if it cannot be delegated by any authority of the constitution or of law, it is equally untransferable according to the principles of the common law, which is delegatus non potest delegare. Thus in Reybold vs. Dodd this court decided on the same ground, that the chancellor could not delegate his power, even by the appointment of a master. All powers vested in public officers are the same in reference to this I question, whether vested in a legislature, a judiciary, executive or private person. Legislative power is no more transferable than judicial power or executive. In Carlisle vs. Carlisle, also, the Superior I Court held that the prothonotary could not delegate to a deputy the I power of appointing freeholders as arbitrators; on the principle that I it was a high function vested by law in the prothonotary himself. [ How then can a legislature, which is as properly restricted in the! exercise of its own functions as the court in theirs, how can it dele-| gate one of its most important powers?
    
      Rogers, jr., did not dispute many of the leading principles adverted! to; he agreed that the legislature cannot assume the functions of the! other branches, nor either of the others assume its functions. Neither T can the legislature pass a valid law which would violate the inherent! principles of the social compact; but he insisted that this law does| neither; it is only the law making power acting in its usual form, ad manifested in road laws, poor laws, in all the Levy-court system! There is in fact no instance in which the legislature does act direct! ly in the imposition of taxes, except in the single case of State taxes] which seldom occur. In all other cases; county, road, poor, ditch] marsh, military and all other taxes are laid through the intervention of some other body, acting on principles fixed by law.
    
      Art. 7, sec. 11, of the constitution, makes it the duty oí the legislature to provide by law for the establishing of schools. In discharging this duty, it has been found necessary to resort to taxation, and expedient in applying this principle to consult the wishes of the taxa-bles themselves, in their several districts. However correct the genera] principle is, that taxation and representation should go together, it is not controverted in this instancy, any more than in all other cases of non-residency. If a man is abroad but owns property here, he is bound to contribute to the expenses of administering the government in proportion to his property, because thatproperty is protected and secured and improved in its enjoyment by the government. A law, therefore, which lays a tax on his property, though no representative whom he voted for has a voice in making the law, is constitutional. The case of a person living in one county and owning property in another, is stronger than this. He has a voice in the election of the law makers, though their law is carried into execution through the medium of the Levy-court, which-being a county body, is not voted for by him. Yet all the county funds are raised and applied by that body out of his property with the rest, without any voice of his, either for the tax, or for those who lay the tax. The plaintiff in this case had his vote not only for the law maker, but on the question of applying the taxing principle to his district. Either [this law is constitutional or all the laws originating and governing the Levy-court of each county, and authorizing the assessment of county, road, poor, military or town taxes, otherwise than by the legislature itself, are unconstitutional. iVnd yet, in reference to many kaxes, it would be impossible for the legislature to lay them, either [from want of local knowledge, or of time.
    
      J. A. Bayard, for plaintiff.
    
      Rogers, for defendant.
   The Court

held the law constitutional, and rendered judgment for the defendant.  