McLean v. State
| Decision Date | 11 October 1873 |
| Parties | WM. McLEAN et al., in Error, v. THE STATE OF TENNESSEE AND THE COUNTY OF SHELBY. |
| Court | Tennessee Supreme Court |
FROM SHELBY.
Appeal from a judgment of the First Circuit Court in favor of the State and county, January Term, 1873. C. W. HEISKELL, J.
These cases were argued together, at the April term, 1873, during the month of June, and the cause being of great magnitude the decision was reserved until the October Special Term.
GEO GANTT, for plaintiff in error, said:
I shall maintain that neither a failure to collect, nor to pay over when collected the exactions of 1868 and 1869 (imposed by authority of the county commissioners of Shelby county) was a breach of the conditions of McLean's official bonds; and that therefore the judgments against the sureties for such defaults are erroneous, and should be reversed.
That a failure to pay over moneys received by the collector on property not listed and assessed for taxes, and on which no tax was imposed, except such as the collector imposed thereon, was no breach of the collector's official bonds and that therefore the judgment against his sureties for such defaults are erroneous, and should be reversed.
That the judgments for the exactions of 1868 and 1869 held the sureties liable for a large amount of the illegal and valueless warrants of the county commissioners at par value and that this is error for which said judgments should be reversed.
That the sureties on the bonds of 1870 are not liable because the county and State, by their agent, deceived the sureties in regard to the state of McLean's accounts representing him as a good officer and in no default, when in fact he was a defaulter to a large amount; thereby inducing them to become his sureties when they would not otherwise have done so.
What the sureties of McLean bound themselves for: They undertook that McLean would faithfully collect and pay over the The bonds executed by them are so conditioned. They conform to law in this respect Code, 599.
I concede that there is no difference in the obligation of an informal and the most formal bond. The informal stands in the place of, and has the exact force and effect of, the formal bond: Code, 773.
I concede that if the collector receive State and county taxes on the faith of his official bonds, and fail to pay the same over, that his sureties can not escape liability by showing the invalidity of such official bonds: Code, 774.
But the conditions and terms of these bonds construed with an eye to ss. 773 and 774 of the Code embrace nothing that is not lawful State and county taxes.
I deny that the exactions of 1868 and 1869 were State and county taxes. They were imposed in contravention of law and public policy; therefore they were not valid taxes, and not within the terms and conditions of the bonds.
If the bonds had expressly stipulated to collect and pay over all State and county taxes, and also the impositions of 1868 and 1869, levied by authority of the county commissioners, the stipulation as to the illegal and invalid taxes, would have been wholly without binding force. And what can not be done by express contract, may not be done by one implied, because the same rule of public policy which would destroy the express, would be fatal to the implied contract.
There springs from the Constitution a paramount estoppel on the public, which forbids the imposition and collection of taxes through the instrumentality of boards of county commissioners.
It forbids the imposition of a tax in this mode. It forbids its collection. When Government has got such illegal tax in the hands of its collector, it is exerted not in aid of proceedings to get it from the collector's hands to the public treasury, but to keep the Government from so doing.
It is no answer to say the money is not the collector's. It is not the Government's. The Government is under inhibition of the paramount law not to gather taxes in this or any other forbidden mode.
The question is not whether the people have voluntarily paid the illegal taxes to the collector, or paid the same under the void forms of taxation; nor is it whether the collector shall be countenanced in not paying the same over; but the question is, shall the Government receive aid and countenance from the courts in getting money contrary to public policy, whether that aid and countenance be invoked in levying the illegal tax, in collecting the illegal tax, or in forcing its collector to pay over the same after it has come to his hands. The illegal tax in the hands of the collector gets there by a wrong exercise of the taxing power on the part of the Government. It is fruit of wrong and illegality. It is forbidden fruit. Government has no title to it, and should not receive the aid of the courts in reducing it to possession.
Our Constitution and laws have designated the County Court as the instrumentality for imposing, fixing the rate, and providing for the collection of taxes for " county purposes : " Code, 4190, 4193; Const. 1834, Art. 2, s. 29.
The power thus conferred is to be exercised in a prescribed mode. A majority of all the justices of the county must participate in its exercise. They are required to act at the first session in every year. If they omit to act at the first, then they shall act at the April, or some other quarterly session of the year: Code, 4193.
This chosen instrumentality and prescribed mode are in exclusion of all others. No other agency can impose a tax for county purposes. None other fix the rate thereof: 3 Heis. 682, 691, 692, 693; 6 Cold. 128, 133; 1 Yer. 452, 454.
It is a high public trust, which neither the Legislature nor the County Court can delegate to any other agency: Ib.; see also Cooley's Con. Lim., 204, 205, 206; 12 Wheat. 54.
The duty of the citizen to support the Government by contributions to the public treasury is the basis of every tax. The power of Government to compel the performance of the duty is the correlative of the duty. The two underlie all civil government. But they are not taxes. Combined in action they produce taxes.
Every valid tax is the product of a right exercise of the power of Government to compel the citizen to perform the duty he is under as a member of civil society, to contribute his share of the public burthens.
The endeavor by the act of 1867 to create the Board of County Commissioners for Shelby county; and to take away from the County Court the power to impose county taxes; and the undertaking, through the county commissioners, to impose such taxes for the years 1868 and 1869 was a wrongful exercise of the taxing power, and did not produce taxes, but illegal exactions.
The act of 1867 to create the Board of County Commissioners was repugnant to the Constitution and void: 3 Heis. 682 et seq.; Butterworth v. Shelby county, MS. Jackson, 1871; Walker v. Barbour Lewis, MS. Jackson, 1871.
Said act of 1867 is just " as if it had never been :" Cooley Con. Lim., 188.
The Board of County Commissioners were not even officers de facto : Butterworth case, ubi supra.
A county commissioner could not be indicted under s. 4819 of the Code for falsely assuming to be an officer, because claiming to be a county commissioner was not setting up a false claim to office: 3 Heis. 706.
It is settled by high authority that a tax imposed by a tribunal or agency, wholly wanting in power, is void for every purpose. It is no part of the official duty of the collector to collect it. Neither his oath nor his bond require him to do so. If collected, and not paid over, such failure is no breach of his official bonds. His sureties are not liable either for the failure to collect or to pay over: 5 Iredell 227; 18 Ga. 47; Geo., 1872.
Besides these express decisions, attention is called to the dictum of Lord Ellenborough, taking the same view, and to be found in the case of Nares & Pepys v. Bowles, 14 East, 516.
And to the concurring dictum of Chief Justice Marshall, to be found in 2 Brock. 116, 117.
Per contra is a dictum of Judge Archer, of Maryland, in 1 Gill 302.
This Judge says: That the sureties of a collector are liable for his failure to pay over taxes collected under an unconstitutional law. But the point was not before him. The law under which the taxes were collected was pronounced by him constitutional and valid. And, on that ground, the sureties were held bound for the default. In Blackwell's work on tax titles, at p. 165, there is a similar dictum.
He cites in its support 1 Gill 302, containing the dictum of Judge Archer. He also cites 6 Harris, Pa. R., 58, 60. But he totally misconceives this case. It did not involve the point, nor does it contain even a dictum on the point. The dicta of Judge Archer, 1 Gill 302, and of Blackwell, in his work on tax titles, are the nearest approach which the other side make to authority on the point. They rely upon many cases, not one of which involve the question.
The cases of the other side examined:
In Jones v. Scanlan, 6 Hum. 195, the tax was imposed by competent authority, and was regular and valid. The collector was a " de facto" officer only. There was no infirmity in the tax.
In Gov. v. Montgomery, 2 Swan 613, the tax was without a flaw--valid in all respects. The defect was in the authentication of the tax lists. The authentication was such as not to give power to the collector to coerce payment. But voluntary payments when made, were lawful public money in his hands, and he was bound to pay over the same.
In the Putnam county case, 10 Hum. 135, State revenue was collected. The motion failed, with a dictum of Judge Green that the bond might be good as a voluntary bond. But in whose favor, the citizen or the State, or to what...
To continue reading
Request your trial