Doe ex dem. Gladney v. Deavors , 11 Ga. 79 ( 1852 )

By the Court.

Nisbet, J.

delivering the opinion.

[1.] A proper understanding of the relation which the Tax Collector bears to the Government, and of the duties which grow out of that relation, will enable us to determine, without much difficulty, the main questions made in this record. The first and most important of these, is this: “has the Collector authority to issue an' execution to enforce the payment of taxes ?” The Court below held that he has not, except in a single instance, to wit, against insolvent tax payers, after the allowance of the insolvent list by the Grand Jury. Upon a special grant, in the Act of 1804, this power in these cases, was conceded by the Court — the Court denying it to him generally. We differ with Judge Warren, and proceed to give our reasons : He is an agent of the State, by whom it exercises the sovereign prerogative of collecting, by coercion, if necessary, the taxes due by the citizen. He is not the agent of the people of his County, although they elect him — nor is he the agent of the Inferior Court of that County, but the agent of the State. The manner of his election and qualification, his duties and powers, and 'his compensation, are prescribed by law; and to secure the State, in the execution of his trust, he is required to give bond and security. The great duty devolved upon him, is that of collecting the taxes assessed by law, for the support of the government. The digest of tax returns being handed to him, it is his duty to proceed to collect them, according to that digest. Cobb’s New Digest, 1073. He is required to pay the general taxinto the State Treasury, andthe County tax to the proper County authority to receive it, at a time prescribed by law. And inasmuch as the realization, with promptness and certainty, of the public revenue, is, with the State, a matter of paramount importance, indeed of uncontrollable necessity, • he is made, together with his sureties, subject to immediate and stringent process of enforcement, in the event of failure to pay; he is made responsible to the Executive department. Cobb’s N. Dig. 1046. If in default, he is not entitled to the ordinary rights of the citizen before the Courts of Justice. The State waits not for the tedious action of the Judiciary, in its usual forms of petition, process, defence, judgment and jkri.facias. He may be compelledtopay, by a process issued at once from the Treasurer of the State, the general tax in arrear; and by execution issued at once, by the Inferior Court, for the County tax in arrear. Cobb’s New Dig. 1052, 1056, 1066. He is liable to pay 25 per cent, interest on the sum due, which is also collected by execution. Cobb’s New Dig. 1025, 1066. For further sécurity of the public revenue, the property of the Collector and of his sureties, is bound from the date of his bond. Cobb’s New Dig. 1056. From these statements, it will be seen that the great obligation of the Collector is to collect and pay over the taxes ; also what stringent measures are provided by law to compel him to promptness a.nd fidelity; and what cautious guarantees are provided against the loss of the public money. It will also be seen how fearful is the responsibility which the Collector' assumes. Now under these circumstances, it would be unjust — nay, ruinously impolitic, for the State to leave her officer without the powers necessary to do his duty. She has not so left him, but has armed him with a part of her sovereign authority, to be by him wielded, immediately and directly, and without let or hindrance, for the purpose ot collecting the taxes. I do not mean to say that she has delegated this power, with discretion to use it according to his own will, but that she has specifically clothed him with the power of a process to collect, highest in its direct efficacy, known to the usages of constitutional government. Call it what you please — execution, warrant of execution, or distress warrant — it is the process used in this very case — a process by which the property of the defaulting tax-payer is seized and sold to pay his taxes: a process wdiich he is to issue without] a judgment — without the intervention of a Jury — without a hearing on the part of the defaulter — which he may himself execute, or which he may cause to be executed by the Sherifls and Constables ; and the progress of which, when issued to collect State taxes, the Judiciary may expedite, but cannot impede, at the instance of the defaulter. The power, in short, is the power of sovereignty, placed by the law in the hands of the State’s agent, tobe by him executed, through the agency of a, process of seizure and sale — the power of compelling the citizen to perform a duty, which is the very first obligation of citizenship — which is indispensable to the very existence of the government and to the enjoyment of his rights under the government, to wit, the duty of contributing his proportion of the public revenue. See Doe ex dem. Gladney and another vs. Deavors, 8 Geo. R. 479 to 486. Neither the power, nor the mode of exercising it, is unknown to the Common Law, or new in our own State. It has been exercised in Georgia for forty-seven years, if no longer; it has been acquiesced in by the people and the Judiciary; it has been recognized by the Legislature ; and it has never been questioned until challenged in this case. I should, however, say that it is not really questioned in this case ; for it will be seen, I think, before I close this opinion, that the controversy here, is more about names than things. I should state, too, that the Court below does not question the power of" the State to invest the Collector with authority to issue an execution for taxes. The presiding Judge seems only to deny that this has been done. We think it has been expressly. By the Act of 1804, it is made the duty of all persons liable to pay taxes, to pay them to the Collector on or before a time specified, which time has been changed by later legislation. And if, on that day, any one is a defaulter, the Collector, the law declares, “ shall immediately proceed against such defaulter, by distress and sale, (giving the notice which the law requires and stating the amount of tax due by such defaulter,) of goods and chattels, if any to be found; otherwise of the lands of such dfaulter or defaulters, or so much thereof, as will pay the taxes due, with costs.” Cobb’s N. Dig. 1048. Herein, the power to issue a process to collect taxes is given, in so many words. From this clause in the Act of 1804, we have no doubt, was originally derived the usage, which has obtained from that day to this, of issuing executions for taxes. If the power is granted in the Act of 1804, there is no necessity of going farther back in search of it. That this clause of the Act of 1804, has been repealed, is not pretended. What enactments are found in the late Act changing, fundamentally, our system of taxation, in relation to this matter, if any, I do not know, as it has not yet been published. This cause, however, is to be decided under the old law. Whilst the counsel for the defendant in error, admits under the Act of 1804, that the Tax Collector is authorized to distrain and sell, he denies that he is authorized to issue execution to sell. I think that this is a distinction without a difference. Whilst the Statute says that he may collect by distress and sale, I think it is very clear, that it intends a sale by execution' in one legal sense of execution. It is clear to my mind, that the process' issued in this case, was legally issued under the Act of 1804; it may not be, it is not a fieri facias, yet it is a process of execution. If it be not an execution in one sense of that word, and is in another — or if it is not in any sense strictly an execution, yet is the process contemplated by the Act. The Court erred in denying to the Collector the power to issue it. The old Common Law idea of distress, is the seizure of the property by a landlord, to be held by him, as a pledge for the performance of feudal service. It came to be used as a remedy to collect rent in arrear, and to compel the performance of other duties. A man was allowed to use it, independent of the Courts, to avenge himself or to minister to his own redress. But long before the year 1804, it had lost its original character as a process of seizure and detainer, and had become a process for seizure and sale, regulated by Statute. From being a feudal power in the hands of a landlord, to coerce payment of feudal dues or the performance of feudal service, it became a remedy, in the hands of a citizen, regulated by Statute, to coerce payment of rent, or to avenge a trespass by cattle, damage feasant. It was no longer a process simply of seizure and detainer, but a process of seizure and sale; and when thus modified, it partook at once of the nature of an execution. It is distress, as it was understood at Common Law in 1804; (that is, a process of collection in the nature of an execution,) that the Act of 1804 includes. This process was primarily “in nature of a nomine poena to compel payment” and the right to sell was added by Statute, and its whole character changed. 3 Black. Com. C. note 8. Ibid, 14. 3 Kent, 476. It was a remedy also for a debt due to the Crown. In such cases, the property was saleable. 3 Black. 14. Bro. Ab. t. Distress, 71. So also for an amendment imposed at a Court-Leet, (8 Rep. 41,) partly, says Bladcstone, because, being the King’s Court of record, its process partakes of the royal prerogative; but principally, because it is in the nature of an execution to levy a legal debt. He farther says, that the distresses given by Statute, are in the nature of executions. Although it was a remedy which an individual might use, without a judgment, yet it became a remedy even in his hands, in the nature of an execution. But more particularly, distress was a remedy at Common Law, to collect debts due the Crown — or rather, I should say, to compel the performance of a duty, which the subject owed to the Crown. Just in this light, the Legislature, no doubt, viewed it in 1804, to wit, as a means of compelling the citizen to perform the duty of paying taxes, which the law and the very nature of the civil compact impose upon him. It is no new process — we get it from our fatherland. Now, when used for this purpose in England, it was used as a process of seizure, with a power to sell, and was, therefore, in the nature of an execution. To illustrate the view which I take of this matter, and save furthor elaboration, I refer to the case of Hutchins vs. Chambers. The Justices had issued a warrant of distress, to compel the payment of a poor rate, under the Statute 43d Elizabeth. The Justices, - Parish Officers, Constables, and their assistants, were all sought to be made liable as trespassers. Among other things, it was claimed that they were liable, because the property taken (averia carucce) was not liable to be distrained for a poor rate. To this it was replied, that, although the process was a distress warrant, yet it was in the nature of an execution, and therefore, the property was liable to be seized and sold. The nature, therefore, of this process, was one oí the matters submitted to Lord Mansfield's judgment. He said: “the solid distinction is, that the seizing under the 43d Eliz. and such like Acts of Parliament, is but partly analagous to the Common Law distress, (as being repleviable, &c.) but is much more analagous to the Common Law execution, (like a fierifacias, where the surplus after sale, shall be returned.) In the old Common Law distresses, which were in nature of a nomine pcenm, to compel payment, it would have been absurd to have suffered the implements by which a man gained his livelihood to be holden as a pledge ; because, that would be talcing from a man the only means he had of being able to pay the debt. But this reason does not hold where the things distrained may immediately be sold, by way of satisfaction, which although called distress, yet really is in this respect an execution. 1 Burrow, 588. This case not only declares a distress to be in the nature of an execution, but it illustrates the origin of the very remedy which the Legislature put at-the control of the Collector. In England, Parliamentary duties, as poor rates, were collected by distress and sale. So here, legislative duties, that is, duties or dues imposed by law, for public purposes, as poor rates, county taxes and general taxes, are collected by distress and sale, and the process of distress is an execution. It is not a fieri facias, for one sufficient reason — that is founded on a judgment. It must recite the judgment and follow it. This process is not founded on a judgment — it issues without a judgment, and it is for this very reason that it is adopted. The State cannot wait the tedious process of getting a judgment. If she were compelled to do this, her honor might be compromitted and the rights of her citizens jeoparded. Hence, she clothes her collecting agent with power to issue a process at once, which will at once command her means. Of the same character is the power with which the Treasurer and the Justices of the Inferior Courts are clothed, to compel the Collector and his sureties to pay over the public moneys, when he is in arrear. To prevent abuse and wrong to the citizen, the process is subjected to control by law. For example, provision is made for selling property for the payment of taxes, at public outcry and upon notice. The tax, it may be further noted, falls under the Common Law designation of a duty. It is not a debt due by contract, in a legal sense of contract, but the-payment of taxes is a duty wdiich the citizen owes to the State. He is not to be considered as owning property, so long as it remains undischarged. It precedes and overrides all the obligations which grow out of contracts — it cannot be superseded by liens — it is one of those deeply-laid foundations upon which governmental superstructure rests. At Common Law, the landlord might distrain himself or by his agent. In the latter event, he executed a warrant to seize and self Hence, the original of a distress warrant. So in this case, I have no doubt' but it is competent for the Collector to execute his own warrant; but he may also do this, through the Constables and Sheriffs. The law has made it their duty, in so many words, to execute his warrants or executions. If it had not, he would be authorized to use them as his agents, for that purpose. Their general power, as levying and collecting officers, wmuld authorize them to execute a Tax Collector’s execution, when placed in their hands. But the Statutes require them to do it — point out the manner of doing it, and make them amenable for neglect of duty. Thus it is, that we hold: 1st. That the Tax Collector can issue execution to collect taxes ; and' 2d. That it may be executed by the Sheriffs and Constables, and that the Court erred in ruling the contrary. Having derived the powrer of the Collector, directly from the Act of 1804, by a course, of reasoning and authority quite satisfactory to ourselves, courtesy to the learned counsel for the defendant in error, and that alone, induces me to notice one other argument used by him against the position, that it is granted to him by Statute. The argument is, that the Legislature having given, in particular cases, the power to issue execution, eo nomine, it is to be taken as having derived it, in all other cases, upon the maxim, expressio unius, &c. The answer to this argument is conclusive. Power to issue execution in the particular cases is given, not because the Collector did not possess the power generally, but because he did not possess the power in those particular cases. The general power did not extend to those cases, and therefore the special grant in those cases. If this be true, the maxim, ex-pressio xmius, &c. has no application. Thus, for example, whilst he had the power to issue execution against the tax-payer, he had no power to issue execution personally against his executor or administrator. Hence, for reasons satisfactory to the Legislature, it gave him power, in certain contingencies, to issue execution against the executor or administrator, for the taxes of the decedent. So also he has power, generally, to issue execution against tax-payers, if they fail to pay, after the time of payment only; but the Legislature gave him power, where the tax-payer is about to depart the County, to levy for his taxes, unless he gives security, after his taxes are returned, and before the time of payment. Cobb’s New Dig. 1049, 1050. So also, when the Grand Jury have allowed the insolvent list, the Collector is required to issue execution against the insolvents. Why ? No doubt, because the Collector, without such express requirement, would have supposed, or might have supposed, that they were discharged, by being recognized by the Jury as insolvent, and that he had no authority to press them farther by execution. To guard against this evil, the power is expressly given in these cases. Cobb’s New Dig. 1059. I have dwelt longer upon this exception than I would have done, but for the fact that I imagine that there prevails among the people very erroneous, or at least imperfect, views of the nature, powers, obligations and dangerous responsibilities of the Tax Collector’s office.

[2.] The lands of the defaulter are not liable to be sold for his taxes, unless there are no goods and chattels to be found. Cobb’s N. Dig. 1048. On this execution the Constable made a return, contemporaneous with the date of the levy, of no personal property to be found. The Court having ruled out the execution, consistently ruled out this return, and the plaintiff in error excepted. We holding that the execution was rightly issued and that it was competent for the Constable to execute it, hold, as a consequence, that it was competent for him to make the return. Any officer authorized to levy the execution, is authorized also, to return the fact that there is no personal property. It is a power incident to his office, as levying and selling agent. That fact cannot, in a contest about the title of the property, ordinarily, be made to appear by parol. It is a muniment of title, and must be evidenced by an official return. We think that the Court erred in excluding it, and erred in afterwards deciding that the party might show by parol, that there was no personal property of the defendant in execution to be found. 3 Kelly, 224, 225.

[3.] The Court instructed the Jury, that no property was exempt from sale to pay taxes, and plaintiff in error excepted to this charge. By law, in this State, certain articles of property, such as bed and bedding, bed-steads, spinning wheel, a loom, a cow and calf, tools, cooking utensils, family Bible, &c. are exempted from levy and sale for debt. Cobb’s N. Dig. 385. Cobb’s N. Dig. 388, 389, 390, 391. The question made in this case was, whether the State is embraced within the operation of these laws; in other words, w'hether the property, exempt by law, from levy and sale to pay debts, is also exempt from levy and sale to pay taxes. Thesejaws are founded in a humane regard to the women and children of families. The preamble to the Act of 1822 announces the grounds upon which the Legislature acted. “ Whereas, (is its language,) it does not comport with justice or expediency, to deprive innocent and helpless women and children of the means of subsistence, be it therefore enacted, &c.” Cobb’s N. Dig. 385. Justice to women and children, in reserving the means of subsistence, and public expediency, or the interest which the" State has in the sustenance and health and morality of the families of the people, were the inducements to this wisely benevolent legislation — legislation, standing in marked contrast with the heathenish severity of those laws, which, in some ages not very remote, not only subjected liberty, but also the corpse of a deceased debtor to the payment of debts. In this direction, progress has been improvement. In our judgment, the State falls within the operation of a public law, passedfor the ben ft of the poor, and the State is within the policy of our own legislation upon this subject matter. In England, as a general rule, the King is not bound by an Act of Parliament, unless expressly named therein. This is true here as to the State. No department of the Government can be divested of its constitutional powers, by an Act of the Legislature. Nor could the King be deprived of his prerogative by any general words in an Act of Parliament. The executive power shall not, then, be impaired by construction. Hence, generally, laws relating to all the subjects of the realm, do not bind the Crown, unless the King be named. But to this general rule, there are exceptions. Bacon says, “ the Crown is bound by the general words of a Statute, made for the maintainance of religion, the advancement of learning, or the support of the poor;”'and he gives for it a conclusive reason, to wit, “ because all Statutes in which the public are interested, ought to be so construed, that they may be effectual.” Bac. Ab. title Statutes, 1. C. 13 Petersdorf Ab. 704. 11 Rep. 71. Smith's Com. 620. 1 Black. Com. 261, 262.

So also the State is bound, although not named by an Act of the Legislature, for the maintainance of religion, the advancement of learning or the support of the poor. If not bound, such Acts might be defective in their operations. The whole public being interested, theymustbeso construed as tobe effectual — that is, they must be so construed as to protect the rights of the public under them. This rule of construction imperiously demands that the Acts under review be construed so as to embrace and bind the State. Without such construction, they might be ineffectual. If the State is not bound by them — if the exempted articles can be sold for the tax of the citizen, then in cases where the whole property, the family- Bible for example, will only be sufficient to pay it, the whole benefit of the law is lost to the family; and in all cases the benefit of these laws is lost, and they become ineffectual, to the extent that the exempted property is applied to pay the tax. Such construction impairs no power of the Government. It does not interfere with the power to impose and collect taxes. It does not assume that the Legislature has not the right to impose the tax, or to appropriate all the property of the citizen to pay it. It goes upon the idea, that the Legislature has waived, for reasons of humanity and of State policy, the right in these cases to sell the exempted property, to pay taxes. That the Legislature may waive this right expressly, or expressly forbear to exercise it, I presume will not be questioned. I have no question but that it can do so, as in these instances, to an extent that does not in any sensible degree, abstract from the necessary revenues of the State. Should the Legislature, to suppose an extreme case, exempt all the property of the citizen from seizure and sale, to pay taxes, and thus defeat the tax-raising power, it would present a different question. We have no such question here. Well, if this can be done expressly, it can be done, and is done impliedly, in all cases where the implication is necessary to give effect to a public law, relating to the promotion of learning, the encouragement of religion or the support of the poor.

[4.] The State is within the declared policy of the Acts. It is the interest of the State to foster the families of the people, to provide for the health and comfort of women and children, to preserve the charities of family life, to maintain the wealth-creating, virtue-engendering and population-increasing power of the homes of the people. This is not the place to enlarge upon the importance of preserving the means of subsistence to women and children, and maintaining the union of the members of families, in a social and economical and monetary point of view. Let it suffice for the stern purposes of judicial opinion, to say that the wealth and population of the State, its peace and order, and the happiness of the people at large, depend, no little, in protecting the small modicum of land, and the little allowance of personal property, given by law to insolvents, from levy and sale to pay taxes. If so, the State is within the policy of these exempting Statutes. She will not defeat her own policy. The Courts of justice will not so construe them as to defeat or weaken that policy.

Upon these points we shall remand this cause; and the other questions, growing out of the application for a new trial, need not be discussed.

Let the judgment be reversed,