Harrison, Pepper & Co. v. Willis

• Decision Date: 16 December 1871
• Citation: 54 Tenn. 35
• Court: Tennessee Supreme Court
• Parties: HARRISON, PEPPER & CO., v. T. J. WILLIS et al.

54 Tenn. 35

HARRISON, PEPPER & CO.,

v.T. J. WILLIS et al.

Supreme Court of Tennessee.

Dec. 16, 1871.

FROM ROBERTSON.

From the Circuit Court, October Term, 1871. JAS. E. RICE, J.

J. W. JUDD and G. R. SCOTT for plaintiffs.

SNEED, J., delivered the opinion of the Court.

Upon a motion to retax the costs in this case in the Circuit Court of the county of Robertson, the plaintiffs, who were the unsuccessful parties in the litigation, moved to strike out the State tax of five dollars and the county tax of a like amount, adjudged against them, upon the ground that the statute imposing a tax upon lawsuits is unconstitutional and void. The motion was disallowed, and the plaintiffs have appealed in error.

It is insisted that the tax in question is but the imposition of a burthen upon the right of the citizen to go into the courts to have his wrongs redressed and his rights vindicated, and that the statute which authorized the tax is an infraction of that section of our Bill of Rights which declares that “all courts shall be open, and every man, for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay.” This section of our Bill of Rights is in substance identical with the great principle of English liberty granted by Magna Charta, and was borrowed from the twenty-ninth chapter of that celebrated instrument, which, in its original English version, was in the words following: “No person shall be taken or imprisoned or disseized from his freehold, or liberties or immunities, nor outlawed, nor exiled, nor in any manner destroyed, nor will we come upon him or send against him except by legal judgment of his peers, or the law of the land. We will sell or deny justice to none, nor put off right or justice.”

By ss. 8 and 17 of our Bill of Rights the great guarantees of popular liberty announced in this chapter of Magna Charta were recognized and adopted as a part of the fundamental law of this State, first by the Constitution of 1796, again by that of 1834, and again by that of 1870. By the fourth section of the tenth article of the Constitution of 1796, it is provided: “The Declaration of Rights hereto annexed is declared to be a part of the Constitution of this State, and shall never be violated on any pretense whatever. And to guard against transgression of the high powers which we have delegated, we declare that everything in the Bill of Rights contained, and every other right not hereby delegated is excepted out of the general powers of government, and shall forever remain inviolate.” Hay & Cobb Rev., 406.

A provision of equal import is contained in each of our subsequent Constitutions, of 1834 and 1870.

The first statute imposing a tax upon litigation in this State was enacted within three years after the adoption of the Constitution of 1796, and by that statute it was provided that the several clerks and masters of the courts of equity, the clerks of the superior courts of law, and the clerks of the several county courts shall collect the following taxes for the use of the State, viz.: on each suit in equity, five dollars and fifty cents; on each suit in the superior courts of law, one dollar and twenty-five cents; on each suit in a county court, sixty-two and a half cents; on each appeal from an inferior to a superior court, or writs of certiorari, one dollar; and the taxes in equity and suits at law shall be taxed in the execution when the suits are determined. Act 1799, ch. 30, s. 1. Hay & Cobb's Rev. 349. By the act of 1817, ch. 138, this act of 1799, ch. 30, was amended so as to require the several clerks of the circuit and county courts to collect the sum of one dollar on each suit commenced by original writ or attachment, and the same on every suit taken to the circuit court from the county court by appeal or certiorari; also, the sum of one dollar on each indictment or presentment, and the sum of fifty cents on each appeal or certiorari from before a justice of the peace, in addition to the tax already collected by law, which shall be taxed on execution as heretofore. Hay & Cobb Rev., 349; and by the act of 1827, ch. 49, upon a successful motion by the solicitor against the clerk or other collector of public taxes, a tax fee was allowed the solicitor, “in case it be collected of defendants.” Id., 362.

These several statutes authorizing a tax upon judicial proceedings were in full force and operation when the Convention of 1834 met and adopted the Constitution of that year, wherein it is declared that “all laws and ordinances now in force and use in this State, not inconsistent with this Constitution, shall continue in force and use until they shall expire, be altered or repealed by the Legislature.” Cons. 1834, Art. xi, s. 1. The Legislature which assembled next after the adoption of the Constitution of 1834, recognized and adopted these laws by re-enacting them, with certain changes, in the words following: “Each and every person who shall be unsuccessful in any suit in equity shall pay a tax of two dollars and fifty cents; on each suit in the circuit court, two dollars and twenty-five cents; on each appeal, writ of error or certiorari from the circuit or chancery courts to the Supreme Court, two dollars; on each appeal or writ of certiorari from before a justice of the peace, one dollar and sixty-two and a half cents; and each indictment or presentment, one dollar.” Act of 1835, ch. 13, s. 4; Car. & Nich. Rev., 604. By a subsequent act these taxes were increased as follows: on each suit in law or equity, three dollars and fifty cents; on each petition filed in any of the courts of record for the division and distribution of estates, three dollars and fifty cents; on each appeal, writ of error or certiorari from the circuit or chancery courts to the Supreme Court, three dollars and fifty cents; on each appeal or certiorari from before a justice of the peace, two dollars; and on each presentment or indictment, two dollars. Code, s. 553. And by s. 551 it is provided that the taxes aforesaid shall be paid by the unsuccessful party in the litigation, and in prosecutions for offenses against the criminal laws by the party taxed with the costs. By the act of 1865, ch. 8, these laws were again remodeled, and the tax on each original suit in any of the courts of law or equity fixed at five dollars. And such was the state of the law upon this subject when the Convention met in 1870 to reorganize the State government, and when the Constitution of that year was adopted and proclaimed.

By the first section of the eleventh article of that instrument, it is ordained that all laws and ordinances now in force and use in this State, not inconsistent with this Constitution, shall continue in force and use until they shall expire, or be altered or repealed by the Legislature. We have thus been careful to show the state of the law upon this subject from the foundation of the government to the present hour, and to trace the changes of the organic law, that it may be seen that on at least two memorable occasions in the history of this Commonwealth, the people have met in convention, having similar laws upon the statute book, some of which are as old as the State itself, and have reorganized their government without any ordinance or provision which in express terms, abrogates or reprobates this kind of legislation. While, therefore, we can not assume that the provisions of the two Constitutions of 1834 and 1870, adopting and approving the laws then in force, so far as they are not inconsistent with those instruments, give the constitutional sanction to these statutes; yet we must hold these facts to be a persuasive argument which tends to invite, if not to justify, such an assumption.

It has been well stated at the bar that time can not consecrate a wrong, and that a statute which violates the organic law, though it has been acquiesced in as of unquestioned validity for generations, is not the less an iniquity on account of its years. It therefore becomes us to inquire, without reference to the antiquity of these laws, and to the circumstances referred to, which would seem to have forestalled this investigation, whether they are in fact repugnant to the provisions of the Constitution, that “the courts shall be open, and every one, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay.” It may be observed at the threshold, that a relinquishment of the right of taxation is not to be presumed unless expressed in terms too plain to be mistaken. Jefferson Branch Bank v. Shelly, 1 Black R., 436; Gilman v. Sheboygan, 2 Id., 510; Phil. and Wilmington R. R. Co. v. Maryland, 10 How., 376. The power to tax in a government involves its power to exist. It is the chief and fundamental attribute of sovereignty, and the objects and sources of taxation are, in general, bounded only by the jurisdictional or territorial limits of the State, and extend to and embrace all privileges, rights, properties, and franchises not exempted in the organic law. It is the condition of citizenship that the enjoyment of all these shall be protected by the government, if the citizen will pay tribute upon them for his own and the general weal. Thus, said Chancellor Kent, the power of State taxation is to be measured by the extent of State sovereignty, and this leaves to a State the command of all its resources, and the unimpaired power of taxing the people and property of the State. 1 Kent Com., 461. The power of taxation, said Marshall, C. J., is an original principle, which has its foundation in society itself. It is granted by all for the benefit of all. It resides in the government as part of itself. * * * However absolute the right of any individual may be, it is still in the nature of that right that it must bear...