Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-02-22

Il Law CoU8T-The following importan
opinion was delivered in the Law Cour
: yesterday by Judge Anderson, in case OF
4 Harry Weatherbee VS.. John League ct al
The decision is one of great importance tc
the mercantile community, and the opinion
of Judge Anderson, which Is ably written.
will be read with the greatest interest by
merchants and others. The case was com.
menced in October, 1868, and the toll.
lowing counsel were retained and argued
the case before the Law Court: For the
plaintiff Judge Phelan, Judge Elicit and
J Capt. b. Newton Hart; for defendant-Mr.
w. M. Randolph Although the name of
: Mr.. Weatherbee alone appears in the case,
Capt. Sam Shock and Messrs. Miller and
Steinkuhl, of the capitol, were also in
} terested in the suit:
HARRY WBATHERBEE VS.. JOHN LoAGUE ct AL.
The only question involved and dis
eussed In this case is as to the constitu-
tlonality Of the following section of the
Code:
Ii any person presume to sell goods OF
to exercise any privilege without obtaining
the license above prescribed, the Clerk
shall issue to the Sheriff, or to any consta-
bic, distress warrant commanding him
to levy, IN case of a privilege, tax double
the highest tax imposed upon any privi-
lege and in other cases, a tax double the
highest tax imposed on any similar busi-
ness, together with costs and charges, by
dlstraining and selling SO much of the de-
llnquent's goods and chattles as shall be
sufficient for the purpose. IT. c., section
| 704.
Under it the defendant. the Clerk of the
| County Court of Shelby county, issued his
two distress warrants for $500 each against
the plaintiff, and placed them in the hands
Of the Sheriff, who has proceeded to levy
them on the goods of the plaintiff This
suit has been instituted for the purpose of
| quashing these distress warrants.
The question raised by the record, is the
| most important that can come before the
courts of the country. 1t is at all times a
delicate and responsible duty for the Judi
ciary to sit in judgment upon the action of |
coordinate branch of the Governments: |
but this is especially the case when the |
question arises in connection with the ex |
ercise of the great Legislative power of tax |
alton. 1t Is argued that the section of the |
Code IN question violates the following |
clause of the Constitution of the State:
That no freeman shall be taken or i'm
prisoned, disseized of his freehold, liberties.
or privileges, or outlawed, or exiled, or in /
any manner destroyed, or d6priCed Of his
life, liberty or property, but by the judg-
ment Of his peers, or the Lal0 Of tic L1Rd
Is this distress warrant, issued by the
clerk, tie ''lG,c of the land?' or, as it is
otherwise expressed, due process of
law"
1t Is proceeding having none of the
elements Of notice, trial and Judgment, and
IS most stringent and summary in its
character
Ii Is hostile and contrary to tine genius
and general spirit of our institutions, and
those OF our ancestors, and to be sustained
must find Its warrant in some long estab-
llshed custom founded on great and para
mOut public necessity.
The taxing power is cOnfded to the |
Legislature alone, and the public necessity |
to their discretion. They alone are the
judges of when the tax should be laid, on
what and how much. They are response
bic to their constituents alone for a proper |
exercise Of that discretion. The courts of !
the country cannot control it. Taxes, and |
other public dues, and debts, have been.
from time immemOrial, collected by sum
mary process. The public necessities can
not await the slow machinery of the extra
ordinary courts of justice An examina-
ton of the authorities in England and in
this country viii show that the means re-
sorted to collect the governmental debts
and dues have always been quick, sharp |
and severe. See Is Howard United States
decisions, page 272, and the various acts
OF our own Legislature since the formation |
OF the Government
Such proceedings for the collection Of
taxes and public debts, having been ''origi-
nally founded IN necessity, censecrated by |
time, and approved and acquiesced in by |
universal consent, are exceptions to the
night OF trial by jury, and are embraced in |
the alternative, law of the land ~
Therefore, if the section of the Code in
question simply provided for the collec-
ton of tax due the Government, as sum
mary and severe as it is, the court would |
feel constrained that it is warranted and
justified by immemorial precedent and uni
versal custom, and is embraced bv the |
phrase law of the land"
Is this proceeding one for the collection
Of the tax due, or does it go further and
lnfict penalty, and provide for its collec-
ton! Is the double tax spoken of in the !
section of the Code, tax or a penalty?
And If the latter, can it be collected in this !
wayI The heading of the article | S
in which the section is formed, denomin-
ates it penalty. 1t is evidently inflicted | '
rs punishment for presJuling to carry on L
the business without a license, and has all | 4
and characteristics of pen q
atty. But the court is not left to the con- |
structiOn of its own; the act has already | !;
been construed by the Supreme Court of n
the State and the double tax pronounced | =
a penalty. The court refers to the case of | =
the State VS.. IL. MANI. decided at the last
term of the Supreme Court at Knoxville d
opinion by Judge Andrews.
Being penalty can it be collected in c
his summary way?
The court thinks the doctrine on this S
subject is clearly and correctly laid down
By e text writer of great learning and high | q
as follows Taxation includes a
he power to collect, in a summary mode, n
he amount legied, from the necessity of b
he case" This arbitrary but indispen- O
'able power must be used only to the er- f
tent absolutely demanded by the public
and never abused by applying |
t to purposes O. penal enactments, and
1nder guise of taxation, to impose penal
les which are to be enforced without re-
course to the ordinary tribunals The i
Constitution protects the citizen from all t
judgments against his person or property, q
otherwise than by a regular jury trial, as q
heretofore accustomed. Now, the only h
lifficulty in enforcing this guarantee, is to B
between a tax and a penalty. Re
That is, a tax which bears equally upon Il
he whole community but that which is fl
Idded to the burden of one citizen, be- "
,ause of his failure to list his land for taxa p
ion, called blooming" and the d,015Ie and
riple tar levied upon them by reason Of
lis neglect to pay his tax when due, can, in
10 proper sense, be termed taxes; they are, d
n fact, penalties Judge Richardson in q
Burgess vs.. Carter, (McMuller Law, 420)
ays: cit is admitted that under this wise o
provision law Of the land if the y
alleged tax shall amount to penalty for
Iome infraction Of the law the Tax Col!ec- p
or, cannot, by his authority, assess the n
penalty under tile name OF tar, for if it is u
penalty the jury must decide upon the Il
imposed jnfrGctiOH before tie penalty can
,e inflicted" See Blackwell on Tax Titles,
,. p. % and So II
Another eminent writer says: ''Forfeit- Il
Ire of rights or property cannot be adj Il
judged by legislative act, and confscatiOn .
without judicial hearing and Judgment =
lfter due notice would be void, as not due .
process of law. Cooley's Constitutional 4
Law, page 3G2.
Again Blackwell says: 80 cautious are o,
he courts in combining the taxing power :,
within the bounds of State necessity, that a
| u