Commonwealth v. Byrne

• Decision Date: 09 January 1871
• Citation: 61 Va. 165
• Parties: COMMONWEALTH v. BYRNE.
• Court: Virginia Supreme Court

61 Va. 165

COMMONWEALTH v. BYRNE.

Supreme Court of Appeals of Virginia.

January 9, 1871

Joynes, J. absent, sick.

1. The section 63 of ch. 57, in relation to the assessment of taxes on licenses, Sess. Acts 1866-67, p. 849, is not in conflict with the constitution of Virginia.

2. Article 5 of the amendments of the constitution of the United States, was designed as a limitation of the powers of the national government, and is inapplicable to the legislation of the States.

3. The bill of rights of Virginia, which declares that no man shall " be deprived of his liberty except by the law of the land or the judgment of his peers," does not forbid the State to enforce the collection of the tax on licenses, by imprisonment of the delinquent, when no personal property can be found by the officer out of which to make the tax.

4. A commissioner of the revenue under § 7 of the act of 1867, in relation to the assessment of taxes on licenses, appoints an assistant commissioner, and the appointment is approved by the proper court. The question whether the facts existed which authorized the commissioner to appoint an assistant cannot be made in a collateral proceeding.^[a1]

5. The act authorizing the assistant to perform all the duties which his principal is authorized to perform, it is not necessary that the certificates given by him shall be given in the name of the principal, or that the name of the principal shall be signed to the certificate.

6. The assistant commissioner having delivered to the sheriff a certificate of the tax assessed on B, for a license to distill spirits, and B failing to pay the tax, the sheriff levys upon personal property of B, and leaves it in his possession. On the day appointed for the sale of the property the sheriff goes to the place and finds the property in possession of a United States revenue officer, who claims it under a levy for the tax due from B to the U. S. government this levy having been made subsequent to the levy by the sheriff. Thereupon the sheriff takes no further steps to obtain possession of the property, and it is sold for the tax due the U. S. government. The sheriff not being able to find any other property of B, takes and holds him in custody. B is legally in custody.

This is a writ of error to a judgment of the Hustings court of the city of Richmond, rendered on a writ of habeas corpus. The defendant in error, in his petition for a writ of habeas corpus, complained that he was unlawfully detained in the county jail of the county of Henrico; and he stated that he was not so held for any crime or misdemeanor, but was informed and believed that the sheriff claimed to hold him in confinement in said jail for the non-payment of an alleged assessment made against him in favor of the Commonwealth, for the manufacture of spirituous liquors, amounting, as was claimed, to about $2,600; and he charged that if any such assessment had been made it was contrary to law and void; that the person who claimed to have made it was not, at the time of making it, an officer or person authorized to make any assessment of any tax; that such imprisonment was contrary to the constitution and laws of the United States and of this State; that no debt had been proved or legally established against him; that he had not been tried or impleaded for the recovery of said pretended tax, nor had any judgment been rendered against him by any court having jurisdiction in the premises. He therefore prayed for a writ of habeas corpus, and that he might be discharged from such imprisonment.

The writ was accordingly awarded, directed to the sheriff of Henrico county, who made his return thereon as follows:

" To the honorable judge of the court of Hustings for the city of Richmond, Va.:

In obedience to the within writ, to me directed, I here produce the body of A. J. Byrne, the party named in said writ. I am the sheriff of Henrico county, and was such on the 3d day of February, 1870. There was handed to me for collection the following certificates, which were in the words and figures to wit: ‘ The sheriff of Henrico county will receive of A. J. Byrne thirteen hundred and seventy-five dollars, the tax imposed by law for the extension of his license to manufacture fifty-five thousand gallons of spirituous liquors, at his distillery in said county, assessed by me as As't Com'r of the Revenue for the first district of said county, until the 30 day of April, 1870. Given under my hand the 24th day of November, 1869. John A. Eacho, As't Com'r of Revenue, 1st district of Henrico county.’ And ‘ The sheriff of Henrico county will receive of A J. Byrne, twelve hundred and seventy-five dollars, the tax imposed by law for continuing to manufacture fifty-one thousand gallons of spirituous liquors at his distillery in said county, until 30th day of April, 1870, assessed by me as Ass't Com'r of the Revenue in the 1st district of said county. Given under my hand the 15th October, 1869. Signed, John A. Eacho, Ass't Com'r Rev. 1st district Ho. co'ty.’ "

These assessments, amounting to the sum of twenty-six hundred and fifty dollars, and being due and unpaid by the said A. J. Byrne or any one for him, and being unable to find sufficient property of the said A. J. Byrne to satisfy the said taxes so assessed against him, I, as sheriff of said county, proceeded, and did on the said 3d day of February, 1870, arrest the said A. J. Byrne, and have since so held him, being required to do so by the act of the General Assembly passed April 19, 1867, section 63, page 849, and the said taxes so assessed against the said A. J. Byrne being still unpaid, and I being unable to find sufficient property belonging to him to satisfy the same, I still hold him in arrest, and for no other cause known to me.

" H. J. SMITH,

Sheriff of Henrico county.

February 4th, 1870."

This return was traversed by the petitioner as follows:

" First. That it is not true, as stated in the said return, that any tax was duly assessed against this defendant, as therein stated.

Second. That John A. Eacho, therein styled assistant commissioner of revenue, was not legally at that time such assistant commissioner of revenue, nor had he any legal authority to make the said assessments or either of them.

Third. It is not true, as stated in said return, that the said H. J. Smith, sheriff, was unable to find sufficient property out of which to make the said tax; that, on the contrary, there was, at the date when the said assessments were delivered to the said sheriff, sufficient personal property belonging to the said Andrew J. Byrne, out of which the said tax could have been made, and that, in point of fact, the said sheriff did, on or before the 20th of November, 1869, levy upon and take into his possession, property of said Byrne more than sufficient to pay said tax, and the said sheriff did, on or about said 20th day of November, advertise the said property for sale, and if said tax was not made out of the same, it was the fault and neglect of the said sheriff.

Fourth. That the provisions of the said statute of 1867, referred to in the said return, have not been complied with in such manner as to authorize the arrest of the said Byrne.

Fifth. That the arrest of said Byrne is contrary to law, and in violation of the constitution of this Commonwealth, and that so much of the provisions of said act of 1867, so referred to in the said return, as authorizes the arrest and confinement of the person, in the manner and way therein pointed out, is unconstitutional and void, and in violation of the constitution of the United States, and of the constitution of this Commonwealth.

A. J. BYRNE."

After several continuances and adjournments of the case, it came on for trial in the court of Hustings, on the 12th day of March, 1870, when the court, having fully heard the cause, and considered the same upon the law, facts and arguments of counsel, determined and adjudged that the said Andrew J. Byrne should be discharged from custody.

Alll the facts proved on the hearing of the cause, are set out in a bill of exceptions taken by the attorney-general in behalf of the Commonwealth, to the judgment aforesaid; which bill states that the Commonwealth, to sustain the issue made up in the cause on his part, introduced and read to the court the orders No. 1 and 2 of the County court of Henrico, which are in the words and figures following, to wit:

No. 1.

" In Henrico County court, 5th April, 1869, Sidney W Blankinship, who has been, by an order of George Stoneman, Brev. Major-General U. S. A., commanding, dated the 20th day of March, 1869, appointed commissioner of the revenue for the first district of Henrico county, to fill the vacancy caused by the removal of John A. Eacho from office, in accordance with general orders No. 24, dated March 15th, 1869, and empowered to perform all the duties of the said office, according to law, until his successor shall be duly elected or appointed and qualified, this day appeared in court, and, together with E. D. Eacho, his security (who first justified on oath as to his sufficiency), entered into and acknowledged a bond, in the penalty of five thousand dollars, conditioned for the faithful performance of the duties of his said office, which said bond is ordered to be recorded by the clerk of this court, who is also directed to transmit a copy of the said bond to the auditor ef public accounts, and also a copy of this order; and thereupon the said Sidney W. Blankinship took the oath of fidelity to the Commonwealth, the anti-duelling oath, the oath to support the constitution of the United States, and the oath of office. And also produced to the court a certificate of John Woodworth, a justice of this county, accompanying the oath prescribed...