Bryan v. Sundberg

• Decision Date: 31 December 1849
• Citation: 5 Tex. 418
• Parties: BRYAN v. SUNDBERG, COLLECTOR.
• Court: Texas Supreme Court

5 Tex. 418

BRYAN

v.SUNDBERG, COLLECTOR.

Supreme Court of Texas.

December Term, 1849.

Bryan scrip is not receivable for taxes under the revenue laws enacted since annexation.

“Affirmative words in a statute do sometimes,” and it is believed where the public is concerned in the performance of official duties, they do always “imply a negative of what is not affirmed.”

Where a subsequent statute, although not repugnant in all its provisions to a prior one, is clearly intended to prescribe the only rule which should govern, or where it revises the subject-matter of a former one, and is evidently intended as a substitute for it, or where it is framed from another, some parts being omitted, the subsequent statute must be construed to repeal the prior one.

A construction which repeals former statutes by implication is not to be favored; and statutesin pari materia and relating to the same subject are to be taken and construed together, because it is to be inferred that they had one object in view, and were intended to be considered as constituting one entire and harmonious system.But when the new statute itself comprehends the entire subject, and creates a new, entire, and independent system respecting that subject-matter, it repeals all previous laws respecting the same subject-matter.(Note 73.)

Statutes which prescribe and limit the exercise of official duty ought to receive a strict interpretation in respect to the powers conferred and the manner of their exercise; and those powers are not to be enlarged by construction.

Hosner v. De Young (1 Tex. R., 764) and League v. De Young (2 Tex. R., 497) cited and confirmed.

Appeal from Galveston.The appellant filed his petition in the District Court, praying for a mandamus to compel the assessor and collector of Galveston county to receive, in payment of taxes for the year 1847, two certificates--one issued under a joint resolution of the Congress of the Republic of Texas, approved on the 16th of January, 1843, making the certificates issued agreeably to its provisions, of which the present is one, receivable for all dues to the Government; the other issued under a joint resolution of the Republic, approved on the 18th of December, 1844, making it receivable in payment of direct taxes.

There was a demurrer to the petition sustained; the case was dismissed, and the petitioner appealed.

Phillips, amicus curiœ.

I.The act of 1846 to provide for the assessment and collection of taxes does not create a new office.The same office, under a different name, existed under the Republic.The last act regulates the general duties of the officer as to the future; but he is bound by the law, not by the act of 1846 alone.Had the act of 1843 been included in the act of 1846 as a proviso or an exception to the 23d section of the latter, what authority would it confer?The drafts would be received by the officer.An independent enactment can operate as a proviso or an exception to a general rule as well as though it were included in the same act.It has the same authority; it emanates from the same source.A previous assessor might, with the same propriety, have refused the drafts because he was not elected and qualified under the law creating the exception.It seems to be admitted that such a construction, under the old law, could not be maintained; but it is contended that the law of 1846 is not supplementary to or connected with any previous enactment on the same subject, and therefore the same reasoning does not apply.But what connection has the law of 1843, for the relief of Wm. Bryan, with an act to raise a revenue by direct taxation?The subject-matter of the former is the auditing of a claim and its payment; that of the latter the raising of revenue.The special law of 1843 is as much connected with the law of 1846 as it was with the general law on the same subject in force before that time; and there is no more reason why it should operate as an exception in the one case than in the other.

II.The law of 1846 shows, by its caption and all its provisions, that it was intended by the Legislature to provide for the assessment and collection of taxes.This is its general subject-matter.In this it is a modification of the pre-existing general law on the same subject.It makes no allusion to the joint resolution for the relief of Wm. Bryan.The intention of law makers must be as much considered in the construction of a statute as its letter.(6 Bac. Abr., 384;1 Bl. Comm., 44.)This intention clearly points to rules of action to be observed in future as to the particular subject.It does not in this case retrospect in apparent intention nor in its letter; nor ought it to be so construed.(2 Mod. R., 310;4 Burr. R., 2460.)The very essence of a law consists in this, that it is a rule for future action.(1 Bay R., 93.)It is not to be construed to destroy a right.(6 Johns. R., 101.)They should not be construed in a way to endamage any one.(CokeLitt., 360, a.)Here, in the law of 1843, an appropriation was made, and the drafts were substituted in accordance with the new contract.

III.If the act of 1846 can be regarded as a repeal by way of substitution of all former laws upon the same subject-matter, it must be confined to the subject-matter of the laws repealed.It ought not by implication to be extended beyond what was contained in the original, the place of which it supplies.As a general substitute for the law to raise a revenue by direct taxation, it can have no bearing on an act for the relief of Wm. Bryan.The fact that the new Constitution establishes a new basis of taxation, and that the law of 1846 was intended to carry out the principle, is an additional argument why the latter should not by implication be construed to repeal an act for the payment of a debt.It is not within its purview.Such implication would extend beyond the general purpose of the act.

Although the political power may, for its own preservation, in which all are equally interested, suspend or postpone the rights of the subject, yet it is not to be presumed to do so without an express declaration to that effect.We conclude then that the assessor is bound by the law as a whole system, when applicable, and not by one act only.

Harris, for appellee.

I.The collector being a creature of the statute, he must conform to its provisions.

II.Having enumerated in 23d section(Acts of 1846, p. 355) what shall be received in payment of taxes, this would exclude the idea of receiving anything else.(Gordon's Digest, sec. 1712.)

III.Before the passage of this law, the liabilities mentioned in the plaintiff's petition and the exchequer bills were alike receivable in payment as taxes.The above section still says the exchequer bills shall be receivable, and omits to mention these liabilities.How can this be explained?

WHEELER, J.

At a former term an opinion was pronounced reversing the judgment in this case.But a rehearing having been allowed, the case was taken under advisement, and its reconsideration has resulted in a different conclusion, by a majority of the Court, from that adopted in the first instance.

The liabilities sought to be enforced against the Government by this proceeding were created before the change of Government effected by annexation.After the change of Government and the adoption of the State Constitution, the office of assessor and collector was created, and the duties of the officer prescribed by the act of the 13th of May, 1846.(Acts of 1846, p. 347.)The 23d section of the act declares in what the officer shall collect the taxes, as follows: “The assessors and collectors of taxes in the State of Texas shall receive in payment of all taxes and revenue imposed according to law, all coins made current by the laws of the United States, and the exchequer bills of the Republic of Texas.”

The question to be decided is, was the assessor and collector authorized to receive in payment of taxes the certificates in question?Or was he authorized to receive any other liabilities of the former Government that “exchequer bills” specified in the act?We think not.This is, we think, a case in which the expression of one thing was intended to be the exclusion of another.It is the case of an affirmative which implies a negative of...