Sears v. Cottrell

Citation5 Mich. 251
CourtSupreme Court of Michigan
Decision Date09 July 1858
PartiesSelim Sears v. Charles B. Cottrell

Heard May 18, 1858; May 19, 1858

Error to Saginaw Circuit.

Plaintiff in error brought trespass in the court below for a quantity of pine lumber. Defendant justified the taking as township treasurer of Hampton, in the county of Saginaw, under a tax roll for the year 1856 and warrant annexed, authorizing and directing him to collect, among others, certain taxes assessed thereon against J. & B. Bird, and by virtue of which he took the said lumber, in the possession of said J & B. Bird, and sold the same to satisfy such tax, after due notice in pursuance of law.

On the trial in the court below, before Hon. S. M. Green, Circuit Judge, and a jury, it appeared in evidence that the lumber in question was the property of the plaintiff; that it was manufactured at the mill of J. & B. Bird, at Hampton and, while there awaiting shipment, was taken and sold by defendant. Defendant proved that he was treasurer of Hampton for the year 1856. He was also permitted by the Circuit Judge to introduce in evidence the tax roll of that township for the year above mentioned, and the warrant thereto attached upon which roll appeared a tax assessed upon real estate against said J. & B. Bird, to satisfy which, finding this lumber in their possession, he levied upon and sold the same in pursuance of the statute. The mill premises upon which the lumber was manufactured, and where it still remained when levied upon by the treasurer, were part of the real estate for which the tax was assessed.

Exceptions having been taken by plaintiff to the admission of this defense, the case, after verdict and judgment for defendant, was brought to this court by writ of error, for review upon the exceptions.

Judgment affirmed.

W. L. Webber and M. Wisner, for plaintiff in error:

The provision in the act of 1853, authorizing the seizure and sale of one man's property to satisfy a tax against another, is unconstitutional. It conflicts with the letter and spirit of sec. 32 of art. vi, secs. 11 and 12 of art. xiv, and sec. 14 of art. xviii, of the constitution of Michigan: Taylor v. Porter, 4 Hill 146; White v. White, 5 Barb. 481; Reed v. Wright, 2 Iowa 22; Blackwell, 31, 32.

The seizure of property by a collector of taxes is analogous to seizure by a sheriff on execution, and the legislature might with equal propriety make possession, whether legal or tortious, of personal property, conclusive evidence of ownership in the one case as in the other: Wilson v. Shearer, 9 Metc. 504; Blackwell, 184.

James Birney, for defendant in error, cited Debates of Const. Conv. 1850, p. 822; Williams v. Mayor of Detroit, 2 Mich. 565; Brooks v. McIntyre, 4 Mich. 318; Blackwell, 2.

Manning, J., Christiancy, J. Martin, Ch. J. concurred. Campbell, J. dissenting.

OPINION

Manning J.:

The lumber of plaintiff, while in the lawful possession of J. & B. Bird, was seized and sold by defendant, who was township treasurer and collector of taxes for the township of Hampton, to pay a tax of J. & B. Bird. By section 40 of "An act to provide for assessing property at its true value, and for levying and collecting taxes thereon" (S. L. of 1853, p. 140), it is provided, "In case any person shall refuse or neglect to pay the tax imposed on him, the treasurer shall levy the same by distress and sale of the goods and chattels of said person, or of any goods and chattels in his possession, wherever the same may be found within his township; and no claim of property to be made thereto by any other person, shall be available to prevent a sale." Section 151 provides, "When any property shall be legally distrained and sold for the tax of any person, and such property shall be owned by another person, such owner may recover of the person for whose tax the same was sold the value of such property, in an action of assumpsit, as for goods sold and delivered; deducting therefrom the amount of any surplus which may have been claimed or recovered by such owner, as provided in this chapter."

That part of section 40, which authorized the seizure and sale of the plaintiff's lumber, to pay the tax of J. & B. Bird, it is insisted, is unconstitutional; and we are referred to several provisions in the constitution supposed to be violated by it.

First, to the latter part of section 32 of art. vi. The section is in these words: "No person shall be compelled in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law." The words "due process of law," mean the law of the land, and are to be so understood in the constitution. By Magna Charta it was provided, "No freeman shall be taken or imprisoned, or dispossessed of his free tenements and liberties, or outlawed, or banished, or anywise hurt or injured, unless by the legal judgment of his peers, or by the law of the land:" Hume's History of England. Lord Coke construed the words "law of the land," to mean due process of law. Hence, we sometimes find one phraseology used, and sometimes the other. They were held, and we think correctly, to mean the same thing in The Matter of John and Cherry streets, 19 Wend. 659. By "the law of the land" we understand laws that are general in their operation, and that affect the rights of all alike; and not a special act of the legislature, passed to affect the rights of an individual against his will, and in a way in which the same rights of other persons are not affected by existing laws. Such an act, unless expressly authorized by the constitution, or clearly coming within the general scope of legislative power, would be in conflict with this part of the constitution, and for that reason, if no other, be void. The law in question is not one of this class. It was not designed or intended to operate on the rights of the plaintiff, or any other individual, as such. This of itself is sufficient to take it from under this part of the constitution, however obnoxious it may be to other parts of that instrument.

If it be said, the law is unnecessarily severe, and may sometimes do injustice, without fault in the sufferer under it, our reply is: these are considerations that may very properly be addressed to the legislature, but not to the judiciary--they go to the expediency of the law, and not to its constitutionality. When courts of justice, by reason of such objections, however well founded, seek for some hidden or abstruse meaning in one or more clauses of the constitution, to annul a law, they encroach on the power of the legislature, and make the constitution instead of construing it. They declare what the constitution should be--not what it is. The tendency of courts at the present day, we think, is too much in that direction. Hence, to some extent, the great number of constitutional questions that are constantly being brought before the courts for adjudication. The time was, and the period not very distant, when courts were reluctant to declare a statute void, and did not feel warranted in doing it unless they could lay their finger on the particular clause that was violated, and the conflict between the statute and constitution was obvious. The judiciary is not above the laws and constitution. Its province is to declare what the constitution and laws are; giving a preeminence to the former, and declaring the latter void only when repugnant to it. And while performing this duty, it should be recollected its powers are as clearly limited by the constitution and laws as those of the executive and legislative departments of the government. When they exceed their powers, their acts may be declared void by the courts; but there is no power given to any department of the government to annul the acts of the judiciary when it exceeds its powers; for which reason, if no other, it should always be careful to keep clearly within them.

We were also referred to sections 11 and 12 of art. xiv, and section 14 of art. xviii, of the constitution--the first relating to taxation and assessments, and the latter to property taken for public use; but we are unable to see anything in either of these sections, or in all of them taken together, having a direct bearing on the question.

The law is for the collection of a revenue of the state, and not of a debt between individuals. State exigencies are not to be measured by those of individuals; and experience has shown the necessity of more summary and stringent laws for the collection of the revenues of the government, than have been found expedient to enforce the payment of debts between individuals. The act, in effect, declares that personal property, in possession of a person taxed, shall be deemed his for the purpose of making the tax, when he refuses to pay it voluntarily. The property was in J. & B. Bird's possession, and lawfully so, for aught that appears, when it was taken. The plaintiff was aware of the law, or is supposed to have been--for ignorance of it is no excuse--which made the property liable, while in their possession, for the tax; and he also knew the same law made them responsible to him for its value in case it was taken. With the facts and law before him, he, in contemplation of law, took upon himself the risk; and if J. & B. Bird have proved unfaithful to him, and permitted his property to be taken and sold to pay their tax, it is not the fault of the state, or of the law; and the plaintiff is not remediless, as he has his action against them.

When the power in the legislature to pass a law is called in question, and there is a reasonable doubt as to the power, it is better the court should err in favor of the power than against it; as the error in that case may be more readily corrected by the people,...

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