Kirby v. Shaw

• Decision Date: 09 October 1852
• Citation: 19 Pa. 258
• Parties: Kirby <I>versus</I> Shaw.
• Court: Pennsylvania Supreme Court

Page 258

19 Pa. 258

Kirby versus Shaw.

Supreme Court of Pennsylvania.

October 9, 1852.

ERROR to the Common Pleas of Bradford county.

Adams and Macfarlane were for plaintiff in error.—The object is to have determined whether the Act of 1848 is valid, or is null and void.

The power of levying taxes is not expressly granted by the constitution. An act may be invalid though it does not violate any express provision of that instrument. The constitution should be interpreted so as to carry out the great principles of the government: 7 W. & Ser. 132, Commonwealth v. Clark; 9 Barr 168; 3 Harris 18; 5 W. & Ser. 172; 6 Barr 88, Brown v. Hummel; opinion of COULTER, J., in Commonwealth v. Parker, 7 Pa. Law Jour. 214. Cardinal features in our system of government are justice, equality, and impartiality; and though every act which is apparently contrary to natural equity is not to be set aside, where there is room for a different opinion with respect to it, yet statutes which violate the plain principles of common right and reason are void: 1 Bay's Rep. 98.

The court-house and jail are the property of the whole county, in which every citizen of the county has an equal interest. The burdens of taxation for county purposes should be imposed equally on all interested; yet the Act in question authorizes the imposition on property in the borough of $500 annually more than its equal share.

In this case there was no moral obligation to which the Legislature gave effect, as in the case of Lycoming v. Union, 3 Harris 166. And no contract existed on the part of the borough. The court-house was burned in March, 1847, and the new building commenced in the same summer, and the building was in progress in April, 1848, when the act passed. The borough also may be deprived of the benefits of the county seat by its removal, or by a division of the county. The case is unlike subscriptions to railroads, where an equivalent may be received.

Elwell, for defendant in error.—The warrant to the collector was sufficient authority to him to collect the tax. By the Act of 11th April, 1848, a collector can institute suit after the expiration of his warrant. The commissioners have jurisdiction over the subject-matter, and the collector was bound to execute their warrant: 3 Bin. 404; 2 W. & Ser. 37; 5 Wend. 170; 7 Id. 89, 93, 301; 16 Id. 574.

The Act of Assembly is clear in its terms, and the purpose was one highly beneficial to the borough of Towanda. The erection of expensive buildings was almost equivalent to a guarantee against the removal of the seat of justice. The provision of the Act was just.

There is no constitutional prohibition against the exercise of the power: 3 Harris 169. The arbitrary power to levy taxes must rest somewhere. The Legislature are responsible only to the people; 3 Dal. 400; 3 Ser. & R. 180, Moore v. Huston; 2 Rawle 374; 10 Watts 66; 2 Barr 285; 1 Jones 62, 70-1; 3 Harris 169.

Taxation is an incident of sovereign power which acknowledges no limit except the discretion of those who use it, unless it be as to those objects of taxation which have been withdrawn from the general power. ROGERS, J., in Commonwealth v. Mann, 5 W. & Ser. 417, and reference there to 16 Peters 435.

The opinion of the Court, filed October 9, was delivered by GIBSON, J.

In every government taxation is an attribute of sovereignty, exercised at the will of the monarch in a despotism, and in accordance with the organic law in a republic. In England, taxes were laid by the sole authority of the king till the reign of Edward the First, who bound himself and successors to exercise this part of the prerogative only with the assent of the lords and commons; but though it ceased to be royal and became national, it ceased not to be an attribute of sovereign power. In every American state, the people, in the aggregate, constitute the sovereign, with no limitation of its power but its own will, and no trustee of it but its own appointee. But this sovereign, from the nature of its structure, is unable to wield its power with its own hands; whence delegation of it to agents who constitute the immediate government. But it is a postulate of a state constitution, which distinguishes it from the federal, that all the power of the people is delegated by it, except such parts of it as are specifically...