State v. Ex'ors

• Decision Date: 01 January 1852
• Citation: 8 Tex. 384
• Parties: THE STATE v. WILLIAMS' EX'ORS.
• Court: Texas Supreme Court

8 Tex. 384

THE STATE

v.WILLIAMS' EX'ORS.

Supreme Court of Texas.

1852.

The State succeeded to the rights and claims of the Republic for duties on goods imported before annexation, and suits pending at the time of annexation for such duties were properly conducted thereafter in the name of the State. (Note 78.)

Where duties on imports by accidents, fraud, or mistake are not paid, an ordinary action for the debt will lie on behalf of the Government.

Appeal from Harrison. This was an action for the recovery of duties accruing to the late Republic of Texas on goods, wares, and merchandise imported into the limits of the then Republic, now State, prior to annexation. The original petition was filed on the 30th August, 1845, and was brought in the name of the Republic, suing by Leonard H. Mabbit, her customs collector for Soda Lake district, and alleged that in the year 1842 the testator had imported goods from a foreign Government into the county of Harrison, Republic of Texas, and into the collectoral district of (formerly) San Augustine, now Soda Lake, to the amount of thirty thousand dollars, without paying duties thereon and that the testator became indebted to the said Republic in the sum of one thousand dollars for the duties due on said imports, and that he then and there undertook and promised to pay the sum of one thousand dollars to the said Republic.

The defendant, on the 31st October, 1845, demurred and pleaded that he did not undertake in manner and form as alleged. On the 2d December, 1847, the plaintiff amended by substituting the name of the State of Texas as plaintiff.

On the 29th December, 1848, an amended petition was filed, in which the plaintiff claimed that the duties on the said imports amounted to two thousand dollars, “no part of which hath as yet been paid.”

The defendant did not answer the amended petition, and the cause coming up for hearing the demurrer was sustained, and it was adjudged that the plaintiff take nothing by his petition.Attorney General, for appellant.

W. P. Hill and J. M. Ardrey, for appellees.

HEMPHILL, CH. J.

The duties sued for accrued under the act of 1840, altering the several acts to raise a public revenue by import duties, (p. 35, Laws of 1840.) This imposed an ad valorem duty of fifteen per cent. on all articles not made the subject of specific duties, (sec. 1st.) That the importer was liable under this law for the duties is not questioned; the only matter of doubt is whether they can now and in this form be recovered.

The defendants have not appeared, at least they have made no argument, either orally or by brief, and we must explore the subject as well as we can without their assistance.

The counsel for the appellant states that the objections to the action are supposed to be twofold, viz:

1st. That the State has no right since annexation to continue the prosecution of a suit for the collection of duties due on imports.

2d. That this form of action cannot be used, since the statute under which the duties accrued had provided a different remedy.

It is unnecessary to notice at length the first objection. There can be no doubt that the duties which accrued on imports prior to the 16th February, 1846, were due and payable to the Government of the late Republic, and there can be as little that the State succeeded to the rights and claims of the former Government. This was, in effect, decided in the case of Cocke v. Calkin & Co., 1 Tex. Reports. The right of the late Republic to these duties, as we have before said, is not to be disputed. This right was not affected or impaired but affirmed by the Constitution, (20th sec., Genl. Provisions.) A suit was instituted before the change of Government to maintain this right, and all suits were required to be transferred to the proper court of the State having jurisdiction of the subject-matter. (Schedule, sec. 2.)

Several of the States, prior to the adoption of the Constitution of the United States, had their revenue laws imposing duties on imports, and no case has been cited, nor am I aware of any in which the right of the States to collect these, after the adoption of the Constitution, if any still remained due, was ever doubted.

There is more difficulty in the second objection raised, viz, whether the liability of the importer can be enforced in the ordinary form of a proceeding for the recovery of a debt, or whether the form of remedy specified in the statute must be exclusively pursued.

Quite a number of authorities have been cited in the brief of the attorney general, but, as the subject cannot now be fully discussed, I will refer to but very few of them. There can, I presume, be no question that if a tax were imposed and no special mode provided for its collection, the Government could resort to her own courts, and in the ordinary form of suits for debt between individuals sue for and recover the claims due her and fixed by law. This is but a common right, and of which, it seems to me, she cannot be deprived, unless the mode specified is in terms or by clear implication exclusive of this original right.

There are no cases in the courts of the last resort in which a question precisely similar to the one now presented has been adjudicated. But in the Circuit Court, presided over by Mr. Justice Story,...