Harper v. The Comm'rs Of The Town Of Elberton

• Decision Date: 30 November 1857
• Citation: 23 Ga. 566
• Parties: William H. Harper, plaintiff in error. vs. The Commissioners of the Town of Elberton, defendants in error.
• Court: Georgia Supreme Court

23 Ga. 566

William H. Harper, plaintiff in error. vs. The Commissioners of the Town of Elberton, defendants in error.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1857.

Illegality, from Elbert Superior Court. Decided by Judge Thomas, at September Term, 1857.

The commissioners of the town of Elberton, issued a fi fa. against William H. Harper, to collect the sum of $15.57, the amount of tax assessed by said commissioners against Harper.

The marshal of the town levied the fi. fa. upon a buggy and harness belonging to Harper, who filed his affidavit of illegality upon the following grounds, to wit:

1st. Because the fi. fa. issued without allowing deponent a trial by jury.

2d. Because the fi. fa. is not signed by three of the commissioners.

3d. Because the ordinance, by virtue of which said tax was assessed and levied, is illegal, in that no certain day is named or fixed upon which said tax is to be assessed and levied.

4th. Because the assessment is made upon debts and open accounts due to deponent.

5th. Because the Act of the General Assembly in pursuance of which said ordinance passed, is unconstitutional, in this, that said Act originated in the Senate, and not in the House of Representatives, and because it did not receive the approval of the Governor until after the adjournment of the General Assembly.

6th. Because said tax was assessed against deponent on the 15th June, 1857.

The case was submitted on the following agreed statement of facts:

That there was no trial by jury, and the fi. fa. was not signed by three of the commissioners. That the ordinance of 9th February, 185—, by its terms levies a tax upon the people and property of the town of Elberton, computed and charged against them on no fixed and certain day, but on the day on which the tax-receiver may appply to receive the tax returns, and he applied and obtained from Harper a statement of the property owned by him in said town, on the 15th June, 1857, and said tax is assessed on such debts and prop-erty at that date. The Act of 20th December, 1824, did originate in the Senate.

The presiding Judge, overruled all the grounds of illegality, and dismissed the same and ordered the ft. fa. to proceed. To which decision counsel for defendant excepts.

Vanduzen, for plaintiff in error.

T. W. Thomas, for defendant in error.

By the Court. —Benning, J., delivering the opinion.

The Court below overruled the affidavit of illegality. Was the Court right in doing so? That depends, of course, upon whether any of the grounds of the affidavit, were good or not.

The first of those grounds was, that the defendant in fi. fa. had not had a jury trial.

But the case was one of a kind in which, at the time of the adoption of the Constitution, jury trial had not been "used." Therefore, it was one to which, the words of the Constitution—"trial by jury as heretofore used in this State, shall remain inviolate, " did not apply.

There was nothing then in the first of the grounds.

The second, was hardly insisted on.

We think, that the fifth section of the charter, gives the "board, " power to authorize their "President" to issue such a fi. fa. as the one in this case.

Therefore, we consider the second ground insufficient.

The third ground was, that the ordinance by virtue of which, the tax was assessed, "named" "no certain day, " as the day "upon which, said tax" was "to be assessed and paid."

But the charter does not require, that the ordinance should. The charter does not say, that the tax is to be laid on such property as the taxed person owned on a particularday. The charter is silent on this point; in that respect, it differs from the general tax law. The charter merely says, that the board "may within the said town limits levy and collect in a summary manner, an annual poll tax, not exceeding one dollar on each free person, and not exceeding twenty-five cents on each slave, usually resident therein, and a tax not to exceed twenty-five cents, on every hundred dollars\' value of real estate, stock in trade, and other personal estate, or any other property, or thing, therein, that may, at the time being, be taxable by the laws of this State; and also a tax not exceeding five dollars for each day, on all itinerant exhibitions and performances therein for money." Daw. Com. 454. These words give to the board a general power to tax...