# McMillen v. Anderson

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United States Supreme Court
95 U.S. 37
McMillen v. Anderson
ERROR to the Supreme Court of the State of Louisiana.
The petition in the case alleges that the defendant, on the 19th of April, 1873, broke into the store of the plaintiff, and carried away certain merchandise, and prays for an injunction. Upon the plaintiff giving the required bond and security, an injunction restraining the defendant from further trespass, and from advertising and selling the property which he had already seized, was granted.
The defendant set up that the plaintiff was a delinquent tax-payer, and that in making the seizure the defendant was acting in the discharge of his duty as tax-collector of the parish of Carroll, Louisiana, under the act of that State, of March 14, 1873, which provides:--
'That in all cases of neglect or refusal to pay their licenses of any description by any person, firm, company, or corporation doing business in this State, the tax-collector shall give ten days' written or printed notice to such delinquent tax-payer to pay such licenses, if such delinquent can be found; otherwise, the notice shall be given by publication for ten days in the official journal, if there be one in the parish; if there be no official journal published in the parish, the notice may be posted at the court-house door; and if at the expiration of said notice the license, together with all costs, be not fully paid, the tax-collector may, without any judicial formality, proceed to seize and sell, after ten days' advertisement, the property, rights, and credits of such delinquent tax-payer, or so much thereof as may be necessary to satisfy the claims of the State as aforesaid, together with all the costs and charges.
'That all causes which may be commenced hereafter in any of the courts of this State, in which it is sought to enjoin the collection of any licenses or taxes whatever, whether State or parish, general or special, imposed by competent authority, shall be regarded as preference cases, and the court shall proceed to final trial and determination of the same at the earliest moment compatible with the ends of justice; and tax-collectors shall not be liable for damages for prosecuting such cases; and, upon a dissolution of any injunction hereafter granted to enjoin or delay the collection of any such taxes so levied or imposed upon any person or property in this State, the court ordering such injunction to be dissolved shall enter a decree against the person or persons suing out the same, and his or their securities, on their injunction bond for the sum of one hundred per cent on the amount of all taxes the collection of which was so delayed or enjoined, and all costs of suits; and said decrees shall be enforced as other decrees are enforced, and the money collected and paid into the proper treasury.
'That the tax-payers who are now or shall become delinquents by the non-payment of taxes on real estate, as provided for in this act, and shall have been so returned upon the rolls of the tax-collector to the auditor of public accounts, the auditor shall publish in the official journal of the parish in which such delinquent resides, or by public notice, when there is no official journal, by three insertions within ten days, the name, residence of, and amount due from, such delinquent tax-payer; and such delinquent tax-payer shall after thirty days forfeit his right to bring suit or be a witness for or in his own behalf before any justice, parish, district, or State court; and every court having jurisdiction within the State shall deny and refuse to issue a civil process of any kind or nature whatever in his own name or for his own benefit, until he shall, if a resident of the parish of Orleans, have procured from the auditor of public accounts, or, if a resident of a country parish, from the tax-collector thereof, a certificate setting forth that all such claims for delinquent taxes and costs thereon against such delinquent tax-payer have been paid.'The revenue law in relation to licensing or taxing retail merchants and retailers of spirituous liquors, provides as follows:--
'There shall be levied and collected an annual amount as a license or tax . . . from each and every retail merchant, fifteen dollars; . . . from the proprietors of all coffee-houses, beer saloons or gardens, or cabarets, eighty-five dollars; all retail groceries selling by the glass shall pay, in addition to the grocery license, a coffee-house license.'
The amount of tax claimed to be due upon the business of the plaintiff was the sum of one hundred dollars. The injunction was dissolved, and a judgment rendered in favor of the defendant. That judgment having been affirmed by the Supreme Court of the State, the plaintiff brought the case here, and assigns for error that the statute under which the defendant acted deprived the plaintiff of his property without due process of law, and is, therefore, in violation of the [[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]] to the Constitution of the United States, and void.
Mr. J. E. Leonard for the plaintiff in error.
Although taxes may be collected summarily and without the aid of the courts, there must be due process of some kind. It is not in the power of the legislature to make any process due process of law. Murray's Lessee v. Hoboken Land Company, 18 How. 272; Allen v. Armstrong, 16 Iowa, 508; Ervine's Appeal, 16 Penn. St. 256. The so-called license, the collection of which is resisted by the plaintiff, is, in reality, a tax. A license to sell liquor is granted only by the parish; the State then taxes the occupation or traffic. Rev. Stat. La., sect. 2779.
The act deprives the plaintiff of his property without due process of law, because it condemns him without a hearing. It fixes the tax to be paid by a retail liquor-dealer, but points out no metho by which it may be ascertained whether a particular person is such a dealer. No one can be condemned without an opportunity to be heard. Fisher v. McGirr, 1 Gray (Mass.), 1.
If the tax-collector's proceedings were authorized by the law (and the State court has decided that they were), he was armed by the statute with a general search-warrant, and that, too, unsupported by oath. Entick v. Carrington, 19 St. Tr. 1030; Attorney-General v. Racine, 4 Mee. & W. 419.
The legislature cannot change the legal presumptions of evidence, nor declare that an individual shall be deemed to be guilty of a particular crime or to owe a particular debt, until he proves the contrary. Wynehamer v. People, 13 N. Y. 447.
The plaintiff was not permitted under the law of Louisiana to contest the claim of the State, until he had given security for the payment of costs and penalties as a condition for having a hearing. The law, therefore, establishes one rule for the rich and another for the poor. He who has neither wealth, nor wealthy friends to become his sureties, is not allowed a hearing under any circumstances. This is not due process of law. Greene v. Briggs, 1 Curt. 325.
No counsel appeared for the defendant in error.
MR. JUSTICE MILLER delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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