Walcott v. People

Decision Date13 May 1868
Citation17 Mich. 68
CourtMichigan Supreme Court
PartiesAlbert Walcott v. The People

Heard April 28, 1868 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Wayne circuit.

This action was brought to recover from the defendant below, and who was an agent of the American express company, the penalty for an alleged violation of the provisions of Act No. 140, Session Laws of 1867, entitled "An act to regulate express companies and their agents, and individuals prosecuting the express business, not incorporated by the state of Michigan."

The cause was tried without a jury, and the court found the following facts: "That the American express company, so called, is engaged in the state of Michigan in transacting an express business and forwarding packages and property by express for hire.

"That sad company is not a corporation, but is a copartnership, having its principal office or place of business in the city of New York, and is engaged in transporting for hire freight and valuable parcels between the several states of the United States, and between said states and the adjoining Dominion of Canada, through the state of Michigan, and between said state and the other states of the United States and Dominion of Canada to and from said state.

"That said company has, for the purpose of transacting its said express business within this state, and between places in this state and other states and foreign countries, many agents and offices, and also valuable property, personal and real, at various points and places throughout the state, upon which said property taxes for state and local purposes are annually levied, assessed and collected, as upon other property of equal value in this state.

"That from the first day of February, A. D. 1868, to the day of the filing of the declaration in this cause, the defendant has acted as an agent and officer of said company in the transaction of its said business in the state of Michigan, and as such did daily, within said county of Wayne, perform the acts mentioned in said declaration, to wit: forward one or more parcels by express without complying with the provisions of the act mentioned and referred to in said declaration, and that said company did not comply with the provisions of said act.

"That said defendant did not, nor did said company, or any one in their behalf, file the statement and procure the certificates mentioned in section one of said act, or pay the tax specified in section two of said act, declared by said act to be a condition precedent to the issuing of such certificates, although they were willing and offered to file the statement required by section one of said act."

Whereupon the court found, as a matter of law, that the defendant was liable to the plaintiff in manner and form as declared against, and rendered judgment in favor of plaintiff against defendant in ten dollars damages and costs of suit to be taxed.

Judgment affirmed, with costs.

Moore & Griffin, and A. Mandell, for plaintiff in error:

1. No recovery of a penalty for a violation of the provisions of said act can be had, because said act does not distinctly state the object to which the specific tax mentioned in section two is to be applied: Art. 14, § 14, Const.

This provision of the constitution is imperative, and not directory: 36 Barb. 178; 17 N. Y., 235.

2. Article 14, § 10, Constitution, evidently contemplates that no specific tax shall be collected except from "banking, railroad, plank-road, and other corporations hereafter created."

The special enumeration of these organizations on which a specific tax may be imposed excludes all others.

This section further contemplates that such tax shall be imposed only on "corporations," and we think on corporations created by the legislature of Michigan.

It is admitted that the American Express Company is not a corporation, but simply a copartnership, or more properly, perhaps, a joint stock company. It has none of the privileges or exemptions of a corporation from taxation for municipal or local purposes.

The specific tax in this case is on the "business" of the company, and we think in contravention of the constitution.

3. Again, specific taxes are rather odious, as they operate unequally in reference to other property. The convention did not intend to increase, but rather to restrict them. Hence--Art. 14, § 11--"The legislature shall provide a uniform rule of taxation, except on property paying specific taxes."

Taxation operates upon a community, or upon a class of persons in a community, and by some rule of apportionment: 4 N. Y., 419.

A common burden should be sustained by common contributions, regulated by some fixed general rule, and apportioned according to some uniform rates of equality: 5 Dana 28; 9 Id. 513.

If, however, the legislature is still at liberty to impose specific taxes upon all kinds of property and upon business, they may evade and defeat this uniform rule, and make particular interests bear all the burdens of the state--the very evil the convention intended to provide against.

A specific tax upon the "gross receipts" of the company on their current business, performed entirely within this state, would be a tax upon business, prohibited by implication by the constitution; but sought to be authorized under the new constitution, so called, recently submitted to the people: Art. 11, § 12.

The personal and real property of the company in Michigan already shares its burden of taxation wherever situated for state, municipal and local purposes.

4. What is the construction of subdivision "fourth" in section 1 of said act?

It does not seem to contemplate as gross receipts anything not earned in Michigan. The language is "gross receipts on their current business in this state."

What is their "business?" Plainly carrying goods and other property, and their earning and receiving pay; in simple language, "freight."

To tax portions of freight earned in New York, Ohio, Canada, or any other state or foreign country before the package reaches Michigan, would be an interference with commerce, and in violation of Sub. 3, Art. 1, § 18, Const. U.S. which provides that the congress shall have power "to regulate commerce with foreign nations and among the several states, and with the Indian tribes."

As the company reside in New York, that state may impose the same, or even a higher and prohibitory rate of taxation for the earnings accruing over the whole line.

We think this claim of state power to tax the business of the company passing through the state, or commencing in Michigan and terminating in another state, or commencing in another state and terminating in Michigan, is settled adversely by numerous decisions of the Supreme Court of the United States, commencing with 9 Wheat., p. 1; 12 Id. 419; 5 Cond. R., p. 570.

5. If the specific tax be illegal, no penalty can be imposed for a neglect or refusal to pay it; and as the payment of the tax is declared by the second section of said act to be a "condition precedent" to the issuing of the annual certificate or license by the state treasurer, the tax being illegal, the penalty will not be enforced.

It is admitted that the company were willing and offered to file the statement required by section one of said act.

Wm. L. Stoughton, attorney-general, for the people:

The plaintiff in error was prosecuted for a violation of the provisions of an act of the legislature, entitled "An act to regulate express companies," etc., approved March 27, 1867: S. L. 1867, p. 194.

The tax imposed by this act is resisted upon the ground that it is unconstitutional.

1. Legislative enactments are not to be disregarded, unless they are clearly, plainly, and palpably unconstitutional. It has been repeatedly held that to warrant the court in setting aside a law as unconstitutional, the case must be so clear that no reasonable doubt can be said to exist: 6 Cranch 128; 12 Wheat. 294; 5 Mich. 252; 1 McCook's (O.), 82.

2. The taxing power is one of the inherent powers of the government, and belongs appropriately to the legislative department, and, when not restrained by direct constitutional prohibitions, it is unlimited as well as undefinable in its objects, uses and extent: 24 Barb. 447-481; 4 Peters 514; 1 Mich. 458.

3. There is nothing in the constitution of this state which restricts the legislature from imposing this tax. Art. 14, § 1, provides that specific taxes shall be applied to the payment of the interest on the educational funds, and the principal and interest of the state debt. Section 10 provides that "the state may continue to collect all specific taxes accruing to the treasury under existing laws. The legislature may provide for the collection of specific taxes from banking, railroad, plank-road and other corporations hereafter created." This is not a restriction; it takes away no power of the legislature. "An act of the legislature, not prohibited by express words of the constitution, or by necessary implication, can not be declared void as a violation of that instrument:" Sears v. Cottrell, above cited.

The constitution can not be construed so as to mean more than the words naturally imply. There is no room for construction and none is allowable: Sedg. on Con. and Stat. L., 227.

Under this provision of the constitution specific taxes have been imposed upon: Brokers and Exchange Dealers, 1 C. L., 331; Hawkers and Peddlers, Id., 333; Telegraph Lines, Id., 422; Bridge Companies, Id., 548; Manufacturing Companies, Id., 580; Musical Societies, Id., 588; Telegraph Companies, Id., 675; Foreign Insurance Companies, S. L. 1861, 43; 1865, 261.

The remaining sections of article 14 are as follows:

"Section...

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