Eyre v. Jacob

• Decision Date: 24 May 1858
• Citation: 55 Va. 422
• Parties: EYRE v. JACOB, Sheriff.
• Court: Virginia Supreme Court

55 Va. 422

EYRE v. JACOB, Sheriff.

Supreme Court of Appeals of Virginia.

May 24, 1858

The act of March 2d, 1854, § 15, which imposes a tax upon collateral inheritances, is within the constitutional powers of the general assembly, and is still in force.

John Eyre, late of the county of Northampton, departed this life the 19th of June 1857, leaving neither father, mother, wife brother, sister, or lineal descendant. He left a will, which was duly admitted to probate in the County court of Northampton. By this will the testator made large devises and bequests to his niece, Mrs. Margaret A. Taylor, and to others, and he constituted his grand nephew Severn Eyre his residuary devisee and legatee, and appointed him one of his executors. The whole personal estate of the deceased was assessed by the sheriff of the county at one hundred and five thousand three hundred and fifty-four dollars, and the value of his real estate in Northampton county was eighteen thousand and eighty-nine dollars; and he owned a tract of land in Accomack county, which he devised by his will, and which did not come into the hands of the executors.

The sheriff of the county of Northampton claiming that the estate of John Eyre was liable to pay the tax assessed by the act of March 2d, 1854, on collateral inheritances, and assessing the property at the above valuation, levied on property of the testator which he had bequeathed to Severn Eyre, and which was then in his possession. And thereupon Eyre applied to the judge of the Circuit court of Northampton for an injunction to restrain the sheriff from selling the property of the plaintiff so levied on by him, on the ground that the act was unconstitutional; which was granted.

The only party to the bill was Jacob the sheriff; but an amended bill was afterwards filed, making the auditor of public accounts a party; and then the cause was transferred to the Circuit court for the city of Richmond.

In March 1858 the defendant moved the court to dissolve the injunction, which had been awarded the plaintiff; which motion the court sustained; and thereupon Severn Eyre applied to this court for an appeal; which was allowed.

The case was argued by Morson, for the appellant, and the Attorney General, for the appellee, upon, 1st. The constitutionality of the law; and, 2d. Whether the law was in force when this tax was assessable?

The questions were, Whether the provisions in the constitution which provide that taxes shall be equal and uniform, apply to this tax? Mr. Morson insisted that the provision for uniformity and equality of taxation applied to every species of tax. And he insisted further, that this tax on collateral inheritances was a tax on property, and therefore indisputably came within the constitutional provision. The attorney general contended that the constitutional provision relied on by the appellant only applied to taxes on property and that this was not a tax on property, but on the transitus of property; a distinction which defined the boundaries between federal and state taxation.

LEE, J.

The regularity of the proceeding by injunction in this case although discussed by the counsel for the appellant in his opening argument, was not controverted by the attorney general. He was understood to concede that it is a proper mode by which to test the legality of a levy made by an officer under the supposed authority of a law the constitutionality of which is denied. Upon this point therefore I shall content myself with referring to the cases of Goddin v. Crump, 8 Leigh 120; and Bull, &amp c. v. Read, 13 Gratt. 78, and authorities there cited. It might perhaps admit of more question whether a court of equity would as a matter of course in such a case as this interfere by way of injunction to restrain the act of an officer, not because the constitutionality of the law under which he is proceeding is called in question, but because the existence of any such law is absolutely denied. Upon this question however I think it may be unnecessary to express any opinion.

The commonwealth being the party substantially interested in the subject matter of controversy, it might have been more regular under the provisions of the act entitled an act regulating the jurisdiction of the Circuit courts, passed May 22, 1852 (Sess. Acts 1852, p. 58, § 3), that this suit should have been originally instituted in the Circuit court of the city of Richmond in order that the commonwealth might be duly represented by the proper officer, and such officer should of course have been made a party defendant. As however the suit was subsequently removed to that court in conformity to the provisions of § 8 of ch. 46 of the Code, p. 239, and the auditor of public accounts who had been made a party by an amended bill, duly appeared and filed an answer, all difficulties as to parties and the regularity of the hearing before the Circuit court of Richmond city, may be considered as overcome, and we may proceed to consider the case upon its merits.

The object of the bill was to test the legality of the levy made by the sheriff of Northampton upon the property of the appellant to enforce payment of the tax claimed to be due to the commonwealth under the several provisions of law imposing a tax upon the transmission of estates by devise or descent to any other person or use than those specified, and prescribing also the rate of the same. The provisions under which the tax was claimed to be due are those of ch. 35 of the Code, § 10 and § 42, p. 179, 184, and of ch. 39, from § 6 to § 12, inclusive, p. 214, 215, and the act entitled an act imposing taxes for the support of government, passed March 2 1854, § 15; and the legality of the sheriff's proceeding was denied because as it was alleged, the several provisions of law above cited including the fifteenth section of the last named act, were unconstitutional, inoperative and void. And in the argument here, the further ground was taken by the counsel for the appellant, that in point of fact when this levy was made, there was no law upon the statute book authorizing or requiring such a levy to be made, the act of March 2, 1854, having expired or been replaced by the act of March 18, 1856, which contained no provision for a tax upon a subject of this character.

It has always been considered to be a most delicate office for a judge to undertake to pronounce an act of the legislature to be unconstitutional and void. It is substantially to repeal the obnoxious law and thus in effect to exercise a power properly belonging to another department of the government. " The question (says Judge Marshall), whether a law be void for its repugnancy to the constitution is at all times a question of much delicacy, which ought seldom if ever, to be decided in the affirmative, in a doubtful case." " It is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers and its acts to be considered as void. The opposition between the constitution and the law must be such that the judge feels a clear and strong conviction of their incompatibility with each other." Fletcher v. Peck, 6 Cranch's R. 87. " The question whether a law is in accordance with the constitution (says Judge Brooke), is at all times a very delicate and important question." " It should not be in a doubtful case that the acts of that body (the legislature) should be decided by the courts to be unconstitutional." Sharpe v. Robertson, 5 Gratt. 518, 642. " The duty of enquiring into and deciding upon the legal validity of an act of the legislature has always been regarded by this court, and justly, as one of the most delicate it can be called upon to discharge." Per DANIEL, J. in S. C. p. 574. Where a plain and palpable infraction of constitutional provision is shown in a law upon the validity of which it is called upon to decide, it is of course one of the highest and most solemn duties of the court to declare such law to be inoperative and void. If however it be only upon slight implication or inconclusive reasoning that the supposed infraction can be made out, the court should never undertake to rescind and annul the solemn and deliberate act of the legislative department of the government. To doubt in such a case should be to affirm.

There is certainly one proposition which will not be questioned, and that is that the legislature possesses the full, absolute, sovereign power of taxation, excepting so far as it may have been surrendered to the general government or may be interdicted by the constitution of the United States, or as it may be controlled by the restrictions and mandates of the constitution of the state. See City of Richmond v. Daniel, not yet reported, opinion of SAMUELS, J. And this power it is most important should be sustained and upheld as essential to the very existence of the government of the state, and as providing the means for vindicating her sovereign authority. See Providence Bank v. Bil lings, & c. 4 Peters' R. 514; Weston v. City Council of Charleston, 2 Peters 449. We do not go to our constitution to see what powers of taxation are given to the legislature but to ascertain what restrictions and limitations upon its general sovereign power are imposed by its provisions. If therefore the power to tax any subject whatever is not excluded by the terms of the constitution or by necessary and inevitable implication, it must exist in the general assembly to be exercised at the discretion of that body as wisdom and a proper sense of justice shall direct.

The counsel for the appellant does not controvert this position but he insists that the particular tax in question though not expressly and in terms prohibited by the constitution, is yet as effectually prohibited by the...