Blount v. Munroe

• Decision Date: 31 January 1878
• Citation: 60 Ga. 62
• Parties: Blount, sheriff, et al. v. Munroe.
• Court: Georgia Supreme Court

60 Ga. 62

Blount, sheriff, et al. v. Munroe.

Supreme Court of the State of Georgia

(January Term, 1878.)

[This case was argued at the last term and the decision reserved.]

Taxes. Laws. Constitutional law. Before Judge Tompkins. Mcintosh Superior Court. November Term, 1876. Reported in the opinion.

R. N. Ely, attorney general; W. A. Way; R. E. LESTER, for plaintiffs in error.

Hartridge & Chisholm, for defendant.

Jackson, Judge.

D. M. Munroe filed his bill in the superior court of Mcintosh county, to restrain sheriff Blount, and the tax collector, McDonald, from selling his property to satisfy a tax fi. fa. for state and county taxes, on the ground that the property assessed and double taxed was exempt from state taxation under the constitution of the United States. They answered the bill, and took issue thereon. The whole case was submitted to the judge of the superior court, as chancellor, without a jury, under an agreed state of facts, who granted a decree for a perpetual injunction against the execution; and the sheriff and collector excepted thereto, and bring the case here for review.

The following are the facts agreed upon: "Donald M. Munroe is an alien, and a subject of Great Britain. He has *been, for several years, engaged in the business of purchasing timber for European markets, and shipping thesame to their respective places of destination. He is not engaged in the business of selling timber in the United States. He has, upon one or two occasions, furnished small quantities of timber to his fellow timber merchants in Darien, at cost prices, to enable them to complete orders and shipments. All the timber in his possession, on the 1st of April, 1875, has been exported, and all of it was exported before the 1st of November, 1875—the most of it before the 1st of July, 1875. All of said timber was under contract of sale before the 1st of April, 1875, and was, on that day, in process of shipment, and awaiting shipment, to the kingdom of England. The complainant refused to return the timber for taxation, and the value of the timber, in his possession, on the 1st of April, 1875, was assessed by the receiver, and the tax fi. fa. was issued for double tax on said timber so assessed. The complainant purchased the timber which was in his possession on the 1st of April, 1875, in rafts. None of these rafts were broken and parts of them sold in the United States; all of them were exported.

The family of the said complainant resides in England, and he lives a portion of each year in Darien, Georgia. The timber is not exported in rafts, but has to be broken before exportation. The timber was cut in Georgia, and sold by citizens of Georgia to complainant. The timber was delivered alongside of the ships in rafts. The ships afterwards break the rafts, and store the timber as best suits the ships. The ships were loaded in the port of Darien."

Under the tax laws of the state, all property in possession of the owner on the 1st of April, 1875, is subject to pay an ad valorem tax. No specific tax was imposed upon timber, either remaining in the state for sale here, or sent to the markets of the United States, or for export to foreign nations. No impost or duty, properly so called, was laid upon this exporter or his exports, or attempted to be laid thereon. A general tax, ad valorem, was laid upon property, and this *timber was assessed and the property, real estate of Mr. Munroe, was levied upon to pay the tax so assessed against him for this timber. So that the naked question is, can a tax of the state, of the same sort and at the same rate as upon all other property, be laid upon this timber under the constitution of the United States? or, is this timber exempt from such taxation under the constitution of the United States, as being an export?

The constitution of the United States, article I, section x— Code, § 5189, declares that "No state shall, without the consent of the congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any state on imports or exports shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and the control of the congress."

Then, in the same section, follows the provision that no state shall, without consent of congress, "lay any duty of tonnage, " etc., etc.

A question might well arise whether, by this clause of the constitution, such a tax, as a general tax like this laid equally upon all property in the state, is within the prohibition of the constitution of the United States. But it has been virtually settled by adjudication by the supreme court of the United States, which is, of course, the supreme authority on all questions of this sort, and we must yield to its authority. The current of opinions and adjudications in that court seems unbroken, that, whether the tax be specific or general, whether upon imports or exports alone, or upon all property and these embraced therein, or whether the article be taxed ad valorem, like everything else is taxed, or differently and specifically, the imposition is obnoxious to the prohibition, because, if the power to tax be conceded, the limit is within the discretion of the legislature. 12 Wheaton, 425, 440, 444; 24 Howard, 169; 2 Otto, 620; 13 Wallace, 29; 8 Wallace, 130.

Whether the reasoning on which these adjudications rest *be sound or not, it is not for us to inquire; as we have no power to enforce our views should they be variant from those of the supreme court of the United States.

The question, therefore, seems narrowed to this point: was the timber which was double taxed by the collector an "export, " in the sense of the constitution of the United States, on the first day of April, 1875?

In the case of imports, it has been settled by the supreme court of the United States, that the states can levy no tax upon the thing imported while in the hands of the importer, and before the package is broken for distribution into the mass of the property in the states—12 Wheaton, 419; 5 Howard, 576; 8 Wallace, 123, 148, and 13 Wallace, 29.

By analogy, it would seem that this timber was an "export, " in the sense of the constitution, on the 1st of April, 1875. It was then in the hands of an exporter, engaged in that business alone; it was being shipped, and waiting for shipment, and under contract for sale to persons in England; it was afterward all shipped; it was most of it shipped before the first of July, when the tax receiver notified the exporter to return it for taxes, and every log of it by the first of November following. So that, unless to become an export in the sense of the constitution, it must be actually placed on board ship, it is difficult to see what more could be required to segregate it from the mass of property in the state, and designate it clearly as an export. It was in the port whence it was to be shipped, and in the hands of the foreign merchant, whose sole business was to ship it, and it was ready to be placed...