Gorman v. Hammond

• Decision Date: 31 March 1859
• Citation: 28 Ga. 85
• Parties: GORMAN. vs. HAMMOND.
• Court: Georgia Supreme Court

28 Ga. 85

GORMAN. vs. HAMMOND.

Supreme Court of the State of Georgia

MARCH TERM, 1859.

Debt from Campbell county. Decision by Judge Hammond, at March Term, 1859.

This was an action of debt brought by G. W. Hammond, clerk of the inferior court of said county, upon the information of Stephen Rentfroe, for the use of said county and informer, against Clayborn Gorman.

This action was brought under the 8th section of the act of 1804, for making a false return of defendant's taxable property.

The declaration alleges that defendant gave in his lands to the receiver of tax returns, worth twelve thousand, at eight thousand six hundred dollars—that he gave in his negroes, worth twenty-five thousand dollars, at ten thousand dollars.

Defendant demurred to the declaration upon the following grounds:

1st. That there was no law authorizing said suit or action.

2d. That the declaration docs not allege that defendant failed to return all of his taxable property; nor does it show what property was withheld.

3d. That the cause of action was barred by the statute of limitations, especially that portion relating to the return of 185T.

4th. That there was no order or authority from the inferior court of said county, to institute said action.

The court overruled the demurrer on all the grounds, except that part of the third ground, relating to the return of 1857, which was sustained. The court holding that the action as to that year was barred by the statute of limitations. And to this decision defendant excepted.

Stone & Fitch, and Tidwell, for plaintiff in error.

Blalock, contra.

Judge McDonald did not preside in this case, being absent on account of indisposition.

By the Court.—Benning, J., delivering the opinion.

Ought the court below to have sustained the demurrer to the declaration?

The first ground of the demurrer, was, "that there was no law authorizing said suit or action. Was that a good ground?

The action is founded on a part of the eighth section of the tax act of 1804. That section is as follows:

"If any person or persons, shall neglect or refuse to give in a return of his, her or their taxable property, or shall be convicted of fraud or making a false return thereof, he, she or they shall be liable to pay to the clerk of the inferior court of the county, a fine of ten dollars, for every hundred, dollars valuation so neglected or concealed, one-half whereof for the use of the county, under the direction of the inferior court, and the other half for the use of the informer or informers, to be recovered in any court having cognizance of the same. (Cobb Dig. 1047.) The part of the section on which the action is founded, is that part which 1 have put in italics.

The ground of the demurrer, therefore, amounts to this: that this part "was no law"; in other words, that this part had been repealed. Is that so? Has it been repealed.?

It was argued that it was repealed by a part of the fourth section of the tax act of 1845. That section is as follows: "If any person 6hall fail to make a return of taxable property under this act, such persons shall be doubly taxed for the first year, trebly taxed for the second year, and increasing in the same ratio each year, until a return is made; and if any person make a false or partial return, a double tax shall be assessed by the justices of the inferior court of the county in which such false or partial return is made, or [on] report of such fact to them by the receiver of tax returns, and at least three day's notice to such person, by order of the justices of said county. (Cobb, 1076.) The part of the section meant, was the part which I have put in italics.

Does this part of the act of 1845, repeal the part afore-foresaid of the act of 1804?

Both of the two parts prescribe a penalty for the same act—"a false return" "of taxable property;" and the penalty prescribed by the one, is not the same as that prescribed by the other; and, it is a rule, that when there are two statutes imposing a penalty, for the same offence, and the penalty imposed by the one is not the same as that imposed by the other, the later statute repeals the earlier— the intention to inflict two punishments for the same of-fence, being a thing not to be imputed to the legislature. Therefore, the part of the act of 1845, does repeal the part of the earlier act of 1804.

That part of the act of 1804, having been thus repealed, has it remained repealed? It has, of course, unless it has been revived by some act subsequent to the act of 1845. Is there any such act that revived it? If there is, we may safely assume that it was some of the tax acts. Is there any tax act that revived it?

The first tax act, after the act of 1845, is the tax act of 1847. That act revives the tax act of 1845—the repealing act. Of course, therefore, that act does not revive the part of the act of 1804, but keeps it repealed. (Cobb, 1078.)

The next tax act is that of 1850. That act re-enacts the act of 1847, "for the political years 1850 and 1851, and for each year thereafter, until repealed." That act, therefore, revives, or rather, keeps alive the act of 1845, and makes it perpetual, and consequently it, instead of reviving the part of the act of 1804, renders its state of repeal indefinite.

The next tax act is that of 1852. That act does not contain any provision on the subject of the "false return" of taxable property. Therefore, it does not contain any provision against which the part of the act of 1845, revived and made perpetual as aforesaid by the act of 1850, could militate—that part relating exclusively to "a false return" of taxable property. And the repealing clause of the act of 1852, is as follows: "That all laws and parts of laws militating against this act. except such part of the tax acts now in force in this State, as may be necessary to carry out this act, and which are declared in full force, be and the same are hereby repealed." (Acts 1851-'52) 292.) Consequently, as the part aforesaid of the act of 1845, revived and made perpetual as aforesaid, by the act of 185.0, does not militate against it, that part is not re-pealed by it. And, therefore, the part of the act of 1804, is not revived by it.

The next tax act is that of 1854. This continues in force all of the act of 1852, except its 12th and 15th sections, which two it alters, but not so as to make them conflicting with the part aforesaid of the act of 1845. Hence, this act could not revive the part of the act of 1804.

I remark, that even if the part of the act of 1845, militated against either the act of 1854, or the act of 1852, and was, therefore, repealed by either of those acts, the part of the act of 1804, equally did so, and therefore, that such repeal of the part of the act of 1845, could not operate to revive the part of the act of 1804.

Neither in 1856, nor in 1857, was there any general tax law passed. In each of those years, a few unimportant acts bearing on subjects connected with taxation, were passed, but not one of such acts contained any provision on the subject of the "false return " of taxable property. None of these acts, then, could revive the part aforesaid of the act of 1804.

Thus far, then, there is no act to be found which repeals the part of the act of 1845, which repeals the part of the act of 1804, and, consequently, no act which revives the part of the act of 1804.

The next and last act was that of 1858, to make the receivers of tax returns assessors in certain cases. The first two sections of that act are as follows:

"That from and immediately after passage of this act, it shall be the duty of each receiver of tax returns in the several...