Decker v. Mcgowan

• Decision Date: 31 August 1877
• Parties: Paul Decker et al., plaintiffs in error. v. James J. McGowan,tax collector, defendant in error.
• Court: Georgia Supreme Court

59 Ga. 806

Paul Decker et al., plaintiffs in error. v. James J. McGowan, tax collector, defendant in error.

Supreme Court of the State of Georgia

(August Term, 1877.)

Injunction. Tax. Municipal corporations. License. Before Judge Tompkins. Chatham County. At Chambers. January 9, 1877.

Reported in the opinion.

P. W. Meldrum, for plaintiffs in error.

R. N. Ely, attorney general; R. Falligant, for defendant.

BLECKLEY, Judge.

The complainants number not much less than two hundred persons. They describe themselves as "merchants and dealers in malt, vinous, or spirituous liquors, and intoxicating bitters, and other articles of like character, in the city of Savannah." They pray for an injunction against the tax collector of Chatham county, to restrain him from collecting from them a tax imposed in 1876 (pam. acts, p. 136) "upon all dealers in patent or intoxicating bitters, brandy fruit, or other articles of like character, the sum of twenty-five dollars for each place of business where such articles are sold;" and in 1877, (pamph. acts, p. 122), upon all dealers in intoxicating bitters, or other articles of like character, the sum of twenty-five dollars for each place of business where such articles are sold, " and "upon every dealer in spirituous or malt liquors, twenty five dollars." What they allege as to the action of the tax collector is substantially this: "that he is about to levy on their property to recover the sum of seventy-five dollars from each of them, which he claims to be due, one-third under the former, and two-thirds under the latter act; that he regards and considers *the complainants, when they admix bitters with vinous or spiritous liquors, though the bitters are not sold separately, as dealers in intoxicating bitters; and that, acting under the orders of the comptroller general, he is proceeding to levy and collect the tax accordingly." They make the question whether they are liable under the special facts connected with their manner of conducting business; and the question whether the tax is constitutional; and the further question whether the whole subject of taxation upon liquor-dealers in the city of Savannah is not committed by law to the municipal authorities, so as to render dealers in that city free from the operation of the general acts of 1876 and 1877.

1. It is certain that, as a general rule, judicial interference with the collection of state taxes is forbidden: Code, sec. 3668; 45 Ga., 85; 49 Ib., 195; 21 Ib., 50; 27 Ib., 357; 33 Ib., 622; 46 Ib., 350; Cooly on Tax., 536, 537. Perhaps there is not, save in instances expressly provided for by the statute, a single real exception to the rule properly understood, the so-called exceptions being only apparent. Nothing is a tax but what has the nature of a tax, and is imposed by some law. For an officer to exact money, under the name of a tax, when there is no law to warrant the exaction, is not an attempt to collect taxes, but an attempt to collect something else; and the rule which excludes interference in the collection of taxes does not apply. The difference is that which exists between the absence of authority, and the mistaken or wrongful execution of an authority which has been duly conferred. If the officer is armed with a valid law, and confines himself within its limitations as to the rate and the objects of taxation, he is free from being impeded by the courts, whatever errors or abuses may happen But if he thinks he has a law, or pretends to have, when, in truth, he has none, or if he disregards express limitations and restrictions, he is, so far, a mere wrong-doer, and cannot take shelter under official cover. Upon principle, I should say that cases admitting *of interference might be distinguished from those not admitting of it by a simple test: Conceding all the elements of fact to be as the officer decides them to be, or as favorable to him as possible, would his action be legal or illegal? If legal, no interference; if illegal, interference, to the extent necessary for the citizen\'s protection. Thus, suppose a claim for a poll tax, when thereis no such tax, or for a poll tax of a thousand dollars when only one dollar has been imposed; in the former case, there would be a total absence of authority, and, in the latter, an absence of it as to all of the claim except one dollar. In either case, other circumstances concurring, such as the seizure of property, etc., resort to the courts would not be impossible. The resistance offered would not be to the collection of a tax, but to the collection of a pretended tax; and that such was its real character could be seen by consulting the constitution and laws, and without entering into any disputed or disputable question of fact. On the other hand, suppose a poll tax duly laid, but exacted, by the collector, of a minor, the collector disputing his minority, and holding him to be twenty one years of age. Only a question of fact would be involved, and the collector\'s decision would be conclusive. The courts could not interfere. Again, suppose a professional tax demanded without having been legally imposed, an attempt made to collect it would open to interference; but if the tax, as demanded, had been duly laid upon each person practicing a certain profession, its payment, in the given instance, could not be resisted on the ground that the person of whom the collector required it was not a member of that profession, or if a member, was not engaged in practice. So, too, in regard to a tax on property. Suppose the established legal rate, ad valorem, to be one per cent., and the collector should proceed for five per cent., his process could be arrested by the courts as to the excess above the legal rate; but were he to levy for the legal rate only, on an erroneous entry in the receiver\'s books, however excessive the aggregate of the tax might be on account of *such error, the courts could afford no relief. With the aid of formal logic, the foregoing examples, and others that might be put, may be generalized thus; Every claim for taxes is reducible to a sollogism of which the major premise is a proposition of law, involving the officer\'s authority, and the minor, a proposition of fact; if the citizen disputes the major premises, and is in the right, he has a case in which judicial interferences is not prohibited; but if he controverts the minor premise only, he has no case for a court, but must pay the tax, and depend for redress on action against the officer, or on petition to the general assembly. One of the examples, brought into syllogistic expression, will suffice for all purpose of illustration:

(Major)—The tax on practicing lawyers is ten dollars each. (Minor)—You are a practicing lawyer. (Conclusion)—Therefore, you are taxed ten dollars.

What I have suggested as the result of principle, may not be so universal as to embrace all possible cases. Some cases...