Gilkeson v. Justices of Frederick

• Decision Date: 18 November 1856
• Citation: 54 Va. 577
• Parties: GILKESON v. THE FREDERICK justices.
• Court: Virginia Supreme Court

54 Va. 577

GILKESON v. THE FREDERICK justices.

Supreme Court of Appeals of Virginia.

November 18, 1856

1.The constitution of Virginia, article 4, § 22, 23, 25, in relation to taxation and finance, relate to taxation by the general assembly for purposes of state revenue, and do not apply to taxes, levies, & c. by counties, corporations & c. for the local purposes of such bodies.^[a1]

2.The general assembly has full power to authorize counties municipal corporations and the like, to levy taxes within their bounds for their peculiar purposes.And the mode subjects, and extent of such taxation is not limited or regulated by the provisions of the constitution in relation to taxation and finance.

3.The act of June 7, 1852, Sess. Acts of 1852, p. 12, authorizing assessments in certain cases on the office of sheriffs and sergeants, is not in violation of the constitution.^[d1]

4.An assessment of four hundred dollars upon the sheriff of Frederick county, laid on the 4th of October and to be paid on the 1st of February following, is not in violation of the act of 1852.^[d1]

5.If the time of payment fixed by the court was inconsistent with the act, that would not render the assessment void; but it would be corrected as to the time of payment.

At a court held for the county of Frederick, all the justices of the county having been summoned for the purpose, it was ordered that the sum of four hundred dollars be taxed on the sheriff of the county, to be paid on the first of the next February.At the April term of the court for 1853, Thomas A Tidball was appointed a commissioner to settle the accounts of William D. Gilkeson, for all charges of the county against him as sheriff of the county.And Tidball having reported to the court that the sheriff refused to pay the tax assessed upon his office, the court at its May term directed the attorney for the commonwealth to take the necessary steps to enforce the payment thereof.In pursuance of this direction, the attorney gave to Gilkeson a written notice that at the June term of the court a motion would be made in the name of the commonwealth for the use of the county of Frederick, for a judgment against him for the said sum of four hundred dollars.

At the June term the motion came on to be heard, when the court awarded a judgment against Gilkeson, who was still the sheriff, for the sum of four hundred dollars, with interest from the date of the judgment.Gilkeson thereupon took the case to the Circuit court by supersedeas: But when the cause came on to be heard in that court, the judgment of the County court was affirmed.He then applied to this court for a supersedeas, which was allowed.

Philip Williams, for the appellant.

Byrd and Holliday, for the appellee.

SAMUELS J.

The plaintiff seeks to reverse the judgment in this case for two reasons:

1st.Because the statute of June 7, 1852, Sess. Acts, p. 12, § 1, is not such as the general assembly might enact under the constitution of Virginia.

2d.Because, if the statute be constitutional, yet the action of the County court under it is not warranted by the law.

The power of the courts to decide against the validity of a statute which is in conflict with the constitution, is beyond question.The duty of the court so to decide, when a proper case is presented, is manifestly plain.

We are referred to the constitution, article 4, title " taxation and finance,"§ 22, 25, with which, it is alleged, the statute under consideration is in conflict.It is said to be in violation of these provisions of the constitution in this, that it allows a rate of taxation which is not " equal and uniform throughout the commonwealth; " nor equal and uniform within any one county: That a subject, the office of sheriff, is taxed, the incumbent of which, being assessed with a tax on the fees or income of his office, is exempt from any further tax, a license tax, on the office itself: That the general assembly itself has no power to impose a tax such as this, and of consequence, could not delegate to the county courts the power to impose it.

It is necessary, to avoid confusion and its consequent error, to keep separate things which are essentially different; to distinguish between the revenue of the commonwealth at large, its modes of assessment and collection, and the revenues of the counties, (levies, poor rates and other charges,) and their modes of assessment and collection.As to the commonwealth's revenue; the constitution, article 4, § 22, prescribes that " taxation shall be equal and uniform throughout the commonwealth, and all property other than slaves shall be taxed in proportion to its value, which shall be ascertained in such manner as may be prescribed by law."This section manifestly relates to the commonwealth's revenue, and to nothing else: Its place in the constitution and its language require that it should be so construed.That it does not apply to county charges is apparent from the fact that they are nowhere mentioned in the constitution.It is not proper to seize upon general words used with reference to one subject, and apply them to a subject not in the mind of the law giver when the words were used.Pendleton, judge, Case of the County levy, 5 Call 141.We could not give the construction contended for by applying this section to county charges, without imputing to the framers of the constitution either gross ignorance of the condition of the several counties of the state, or a willful disregard of justice.The framers of the constitution did know that there was a great difference in the amount of county charges in the several counties; they did know that, at different times in the same county, there was great inequality in the amount of those charges; yet to have prescribed a rate " equal and uniform" for all counties, without regard to their wants, would have been highly unjust.Although the people of Virginia may be rightfully required to contribute to the expenses of their government in all its departments, yet if in some local departments their expenses be small, they cannot be required to pay large sums for the mere purpose of preserving an " " equal and uniform" rate of taxation.Thus I am of opinion that the rate of taxation prescribed by the twenty-second section is not necessarily to govern in levying to defray county charges.

For the same and other reasons, not yet expressed, I am of opinion that county levies and other charges are not affected by so much of the twenty-second section as requires taxes to be laid on all property, other than slaves, in proportion to its value; nor by so much of the twenty-third section as prescribes a tax on each slave over twelve years of age, equal to the tax on land, of the value of three hundred dollars.As already said, this part of the constitution, from its face and context, is intended to apply to the commonwealth at large, and not to counties or subdivisions.The cotemporary history of the adoption of the constitution leaves no doubt on the subject.These sections were inserted to reconcile an alleged antagonism of interests between the western and eastern portions of the state.The western portion of the state had a large relative portion of the white population, and but a small relative portion of the slaves, within the commonwealth; the people of the western portion desired to make internal improvements which would require the expenditure of large revenues; and the people of the eastern portion of the state, who held much the largest proportion of the slaves, were apprehensive that the large revenues required might be levied by making a discrimination against property in slaves; and to obviate this apprehension, the rule of equality and uniformity was adopted and made part of the constitution.If we look to these sections standing alone, or in connection with the reasons for their adoption, it must be seen that they have no application whatever to county charges of any kind.

It is said, moreover, that the statute is in violation of the twenty-fifth section of the fourth article of the constitution, which provides that " the general assembly may levy a tax...