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LEVY COURT/COUNTY COUNCIL

The levy court in Delaware, as a body for tax control, originated in the Dutch period (1655 - 1664) with the authorization given to Jean Paul Jacquet who levied the first taxes in the locality.1 In his instructions he was advised by his superiors that, in order to prevent an inordinate desire for land "he shall in place of tithes, exact from each morgen (about an acre) of land provisionally, 12 stivers (24 cents in gold) annually."2

With the advent of the English in 1664,3 courts on the Delaware were established, presided over by justices of the peace who were also magistrates.4 Sir Robert Carr assumed command and by the terms of agreement the civil powers of magistrates were continued: "... the present Magistrates shall be continued in the Offices and Jurisdictions to exercise their civil powers as formally (sic)."5 These civil powers, which were in addition to judicial duties of the justices of the peace, consisted of the levying of taxes, such as excise on beer and liquors, poundage, and like products, and land, for the purpose of defraying the expenses of public works and the salaries of public officials.

Early mention of the constable is contained in the additional orders promulgated for the government on the Delaware, May 17, 1672.6 Constables, confirmed or chosen by the justice of the peace or the levy court,7 have held a prominent part in the taxing of the people on the Delaware ever since. The laws of the Duke of York provided that "All assessments shall be made by the constables and eight overseers of the Parrish."8 After the appointment of assessors in 1696-97 (see below), the constables furnished lists of "tydables," or taxables in their hundreds for assessment purposes9 and at the present time still act as bailiffs for the levy court.10

In 1673 the Dutch recaptured their former holdings on the Delaware and Governor-General Anthony Colve was placed in command. He promptly issued instructions among which were: "The Sheriffs and Schepens shall have power to conclude on some ordinances for the welfare and peace of the inhabitants of their district, such as laying out Highways, setting off lands and gardens ... erecting churches, schoolhouses or similar public works,"11 demonstrating that these officials had taxing powers in addition to their judicial authority.12 Colve also established three courts, one of which was at New Amstel (New Castle) "to which provisionally shall resort the inhabitants dwelling on the east and west banks of the Kristina kill unto Boomties Hook with those of Apoquenamins kill inclusive."13 In equity matters the Upland court exercised complete jurisdiction. The justices, either as a court or board performed all the duties that were later performed by the county commissioners, directors of the poor and auditors, granting applications for taking up land, receiving returns of surveys and transfers of real estate, regulating the affairs of the church, and attending to the repairs of highways, and maintenance of fences.14

When this territory was returned to the English in 1674 these courts retained jurisdiction, and exercised fiscal functions.15

Upon the transfer of government to William Penn, the first court in what is now the State of Delaware was held in 1682.16 His charter for Pennsylvania and the Delaware counties provided that the poor should apply to the justices of the peace for temporary aid until the next meeting of the county court.17 Following closely the original method of levying taxes he decreed: "And to the end that Due provisions be made to defray the requisite Charges incident to the public business and service of this Province and territories thereof, Be it Enacted by &c, That the Charges of each County shall be made up in open Court by the respective Magistrates thereof, and that every such Court Shall have, and hereby hath power to Assess and lay such taxes upon the County as shall Defray the same, so that it be equal and according to proportion; And that the one half of the said tax to be paid, shall be raised upon land, the other half by the poll, on the Male from Sixteen, to Sixty of age . . . ."18

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With the advance in costs of government, definite needs had to be met and the levying of taxes could not be left to the discretion of the justices. Penn therefore put into effect a law providing that "The Justices shall, either at their Quarter Sessions, or at a Session for that purpose appointed, Calculate the publick charges of the County & Shall allow all Just accompts, and make a Rate or asessment for the speedy raising of Sd. sums payable from the County, to Defray the Said accompt so as aforesaid allowed. Provided also That the Grand Jury shall present any sum necessary to be raised, either for the paying any publick Debt, or other occassion for the publick Utility of the County. It shall be lawful for the Sd. Justices to make the said rate or assessment, which shall be raised in the same manner as moneys are by the Sessions agreed to be raised for the support of the government." This law also provided that "money for the support of the Poor shall be paid first," and for the rate of assessment.19

The appointment of assessors, 1696-97, six in each county, was authorized to assist the justices of the counties and the grand jurymen "to calculate the public charge of the County" and to "allow all just debts dues and accounts." And it was enacted that "the said assessors shall appoint a Treasurer in their respective Counties, who shall keep a distinct book, Containing a peculiar account of all the rates & assessments made as aforesaid, as also of all disbursements and payments he hath made by order from the Justices & assessors, which said Treasurer shall in the Seventh month yearly, bring in his accompts & make them up in open Court before the Justices of said Courts and assessors, and all other that are willing to be present at the Auditing thereof . . . ."20

Supposedly, the act which definitely established a separate levy court was passed in 1736 under George II and was entitled "An Act for raising county-rates and levies." Section 3 of this law provided "That the Justices of the Peace of the respective counties within this government, or any three of them . . . shall meet yearly, and every year, for laying the levies, together with eight Grand Jury-men . . . and assessors, or the majority of them, shall meet at the court house . . . and then and there proceed to calculate and settle and adjust the sums of money which ought of necessity to be received yearly to defray the charges of building and repairing court houses, prisons, workhouses . . . with such other uses as may redound to the public service and with power to make good deficiencies and to collect and enforce collections."21

Authority was also given to the clerk of the peace in this year to officiate as clerk of the levy court, and he was required to enter in his minutes the names of all persons to whom money was payable and particular cases for which money was appropriated, also fair and true duplicates for the county treasurer.22

In 1743 the method of raising taxes in the "lower counties," as the three Delaware counties were called, underwent another revision. At the regular October election for the Assembly, an assessor was chosen for each hundred by the voters, the service to be compulsory. The Tuesday following the meeting of quarter sessions in November, the justices of the peace in each county, together with eight grand jurymen and the assessors formed a finance board for the purpose of estimating the amount needed to meet the expenses for the coming year. An appropriation bill, listing items and the amount required for each was drawn up. In August the county clerk directed the constables of each hundred or district to prepare lists containing the full name of all taxables or freemen in each district.23 In 1752 a supplementary act was passed authorizing the Levy Court to appoint a County Treasurer.24

In 1775 a law was passed providing that overseers of the poor be appointed by justices of the peace. Service was compulsory and it was the duty of the overseers to levy special taxes in each hundred for maintenance of the local needy.25

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In 1791, the General Assembly felt that "great inconvenience hath been experienced from the present organization of the Levy Courts" and so passed a law to remedy the situation. The function of sitting as a court of appeals was added at this time. The Levy Courts of New Castle and Sussex counties were to consist of the eldest Justice of the Peace resident in each hundred in each county, the President of the Court of Quarter Sessions in either county always to be one, and exclusively representative of his/her resident hundred. In the event that a Justice of the Peace did not reside in any certain hundred, the other Justices were empowered to elect at the Court of General Quarter Sessions a "discreet and experienced freeholder" to serve instead.26 Also in 1791, the Turstees of the Poor (RG 4230) were created by the Assembly in order to safeguard the interests of the indigent poor, the Turstees to be appointed by the Levy Court.27 Salaries paid to the Jusitices, Grand Jurymen and Assessors for their trouble, attendance and expenses varried depending on which county they were from. Those from Sussex County received twelve pounds.28

On June 14, 1793, the Assembly passed the act which provided that the Levy Court and Court of Appeals should be composed of commissioners elected by the people. The first meeting of the Levy Court composed of commissioners elected bay the people was held November 26, 1793.29

On February 26, 1796, an amendment was passed which provided that the court of appeals receiv the returns of valuation of the assessors and remedy complaints.30 As for the assessment, the law also said "as to those single men who have no visible estate, they shall not be rated under twelve pounds nor above twenty-four pounds."31 In 1797, an amendment was passed giving authority to the Levy Court to raise money to maintain the poor, and lay out and repair causeways, bridges and public roads.32

In 1815, an act passed empowering the Levy Court to order the constables to pick up insane prisoners confined in the goal and deliver them for safe keeping and maintenance to the poorhouses of the county.33

The law of 1829 further defined the scope and functions of the Levy Court and Court of Appeals. It stated that the Levy Court should be composed of commissioners; that no county treasurer, trustee of the poor, coroner or sheriff should be, during his term of office, a commissioner of said court; that the clerk of the peace should, after, the 12th or before the 15th of September of each year make known to the sheriff the names of the commissioners of each county to be elected; the assessors of the several hundreds in each county should take oath before Levy court; they were compelled to turn in the assessments and valuations to the court; the court was ordered to sit as a court of appeal.34 Sussex county's Levy Court was composed of ten commissioners, one for each hundred in the county. Levy Court Commissioners served a term of three years.35 In 1832, this term of office was changed to four years. Also that year, the Levy court and Court of Appeals were given the power to appoint the constables for each county.36

In 1903, the General Assembly abolished, recreated and reorganized the Levy Court of Sussex County. This new court consisted of ten elected members who served terms of four years. These ten commissioners then appointed the tax collectors, trustees of the poor, overseers of roads, constables, grand and petit jurors and necessary officers.37

Gathering statutory power each year, the Levy Court soon became the most important executive power in the county.38 It had charge of roads and bridges and appointed a Supervisor of Roads in each rural district annually and fixed his compensation.39 His duty was to make all road repairs under the supervision of the country road engineer.40 It appointed the Board of Assessment and fixed the fees of the Assessors.41

The Levy Court appointed tax collectors for a period of two years.42 It appointed constables for the rural districts.43 It is authorized to appoint its own legal counsel.44 The Levy Court received and published reports of the county comptroller of audits of county officers.45 It was required to pay the expenses incurred in fighting or extinguishing fires,46 supply an ambulance, and give financial aid to the State Tuberculosis Commission (RG 1704).47 It furnished financial aid to Sabbath Schools;48 appointed freeholders to select sites for schoolhouses;49 and furnished uniforms for bailiffs.50 It fixed the capitation rate and other county taxes.51

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In 1915, the Sussex county Levy Court was again abolished, recreated and reorganized to become effective in1917. The new court consisted of three elected members to serve a term of six years. The Clerk of the Peace served as the Clerk of the Levy Court and kept all books, records and papers. The court appointed a County Engineer for a four-year term and was empowered to have a county prison erected on the lands of the Trustees of the Poor.52

The legislation establishing of a State Old Age Welfare Commission and Home (RG 1509) in 1931 abolished the Trustees of the Poor heretofore appointed by the Levy Court.

In 1955, the Sussex county Prison, Prison Farm, Court House and Court House Annex were placed under the jurisdiction and control of the Sussex County Levy Court.53

In 1965, the Levy Court form of government was abolished and the county government was totally reorganized as the County Council (RG 4201).

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LEVY COURT/COUNTY COUNCIL

1 Scarf, vol. 1, p. 62

2 Leon deValinger, Jr., Development of Local Government in Delaware, p. 85, hereinafter cited as deValinger

3 Duke of York’s Laws, p. 446

4 Scarf, vol. 2, p. 623

5 Duke of York’s Laws, p. 446

6 Ibid., pp. 450-451

7 Duke of York’s Laws, pp. 22, 23

8 Ibid., p. 9

9 Duke of York’s Laws, p. 222

10 Rev. Code 1852., ch. 8, Sec. 30

11 Duke of York’s Laws, p. 453

12 deValinger, p. 85

13 Duke of York’s Laws, p. 453

14 Ibid., p. 463

15 Ibid., p. 462

16 Hazard, pp. 599-600

17 Duke of York’s Laws, p. 115

18 Ibid., pp. 146-147

19 Ibid., p. 233

20 Ibid., pp. 257-258

21 No copy of this act can be found now, however, tax lists found among early County records substantiate the existence of such an act.

22 1 D.L., 1797, ch. 102, pp. 261-262

23 1 D.L., ch. 102, p. 260

24 1 D.L., 1797, ch. 137, p. 329

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25 1 D.L., ch. 225a, pp. 544-561

26 2 D.L., ch. 228b, pp. 1014-1016

27 2 D.L., ch. 218c, pp. 988-998

28 1 D.L., ch. 102

29 1 D.L., ch. 18, 125

30 1 D.L., ch. 125

31 1 D.L., ch. 187

32 1 D.L., ch. 125

33 3 D.L., ch. 204

34 Messersmith, p. 22; 7 D.L., ch. 132

35 7 D.L., ch. 132

36 8 D.L., ch. 139

37 21 D.L., ch. 22; 22 D.L., ch. 54

38 Messersmith, p. 56

39 Ibid., p. 20

40 24 D.L., ch. 156

41 24 D.L., ch. 72

42 Messersmith, pp. 21-23

43 8 D.L., ch. 139

44 Rev. Code 1935, ch. 43, par. 1718

45 23 D.L., ch. 60

46 Rev. Code 1915, ch. 23; 34 D.L., ch. 85, 42 D.L., ch. 104

47 26 D.L., ch. 187

48 Rev. Code 1852, ch. 41, sec. 1

49 21 D.L., ch. 67

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50 13 D.L., ch. 166

51 21 D.L., ch. 23

52 28 D.L., ch. 76

53 50 D.L., ch. 5

???;: January 3, 1988