Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1870-02-18
Law cnurt...Indna Andarsan.

Inc new cases appeal6u from haEAS-
trates were called yesterday, and about
sixty judgmeu@swere taken by default.
To-day the calendar VIII be called from
2IO9 to 2l33, as heretofore published.
HARRY wEArHERBEE VS.. JOHN LoAGUE
EFT Al.
The only question involved and dis
cussed in this case is as TO b cOnstitU-
tionality Of the following section of the
Code:
"If any person presume to sell goods
or to exercise any privilege without OBJ
tanning the license above prescribed, the
clerk shall ssue to the sheriff, or to any
constable, a distress warrant command
ing him to levy, in case of a privilege, a
tax double the highest tax imposed upon
any privilege; and in other cases, a tax
double the highest tax imposed on any
similar business, together with costs u
charges, by d~istraining and selling so
much Of the d~elinquent's goods and chat.
ties as shall be sufficient for the purpose"
I. c., section 704.
Under it the defendant, the Clerk of the
County Court of Shelby county, issued his
two distress warrants for i've hundred
dollars 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. II is at all
times a delicate and responsible duty for
the judiciary to sit in Judgment upon the
action Of a coordinate branch of the Gov
ernTnent; but this Is especially the case
when the question arises in connection
with the exercise of the great legislative
power of taxation. Ii is argued that the
--a - Wr- HlIa L. n-n-frA, N-r,lafna
the following clause OF the Constitution
OF the State:
THAT no freedman shall be taken or
imprisoned, deseized of In freehOld,
liberties or privileges, n or out
law6d, or eXiled, or la II vnlanner de-
stroyed, or deprived IF his lsfe, liberty or
property, bat by tie Judgment OF his
peers, or the law of the land"
Is this distress Warrant issued by the
Clerk, the "IdW Of tte land2" or, "a il is
otherwise expressed, "d0e process Of
lawq"
1t is a proceeding having none of the e..
ements o notice, ..!@i ana Judgment, and
Is most stringent and summary III its
character.
IL is hostile and contrary to the genins
aud general spirit of our -iustituti0us, u
thoss otoUr ancestors, and 10 be sustained
must find its warrant III some long cs-
AAkAAoAANNA NAHNNAA sAA@@1 - 49, $3.50
paramount public necessity,
The taxing pOweris eOnhded to the Leg
islature alone, and the public necessity
requires that the power should be left
entirely to their discretion. They alone
are the judges of when the tax should be
laid, on what, and how much. They are
responsible to their constituents alone for
a proper exercise of that discretion. The
courts of the country cannot control It,.
Taxes, and other pubic dues, Ii debts,
have been, from time immemOTial, col
lected by summary process. The public
necessities cannot await the slow machin-
cry of the ordinary courts Of Justice. An
examination ofthe authorities in England
and in this country Will show that the
means resorted TO collect the government
al debts and dues have always been
quick, sharp and severe. See Is Howard
United States Decisions, page 272, and the
various aets Of our Legislature since
the formation of the Government.
Such proceedings for the collection of
taxes and public debts, having been
" originally founded in necessity conse-
Grated by time, and approved and acqui-
esced in by universal consent, are exoep-
tions to the right 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 a tax due the Government, as
summary and severe as it is, he court
would feel constrained to hold that it is
warranted and justified by inlmemDrial
precedent and universal custom, and is
embraced by the phrase claw of the land"
Is this proceeding me for the collection
of the tax due, or does it go further and
iudiCt a penalty, and provide for its col
lection. Is the double tax spoken of in
the section of the Code, a tax or a pen
atty? And if the latter, can it be col
lected in this summary way3 The head
ing Of the article in which the section is
formed denOminates It'll penalty. tits evil
IDENTIFY inflicted as a punishment for pre-
Stunning to carry on the business without
a license, and has all the qualities and
characteristic of a penalty. But the
court is not left to construction of its
| owns; the act has already been construed
by the Supreme Court of the State, and
the A." double tax F" pronounced a penalty.
The court refers to the case of the State
VS.. II. Mans, decided at the last term Of
the Supreme Court at knoxville-Opiniop
by Judge Andrews,
Being a penalty, can it he collected in
this summary wayf
The court thinks the doctrine on this
subject is clearly and correctly laid Down
by a text writer of great learning and
high authority, as follows; Taxation
lECluubs tue power 70 collect, IL q sum-
mary mode, the amount leyted, from the
necessity of the CASE" This arbitrary but
indispensable power must be used o1ly to
the sSteat absolutely demanded by the
public necessities, and never abused bv
applying it to purposes of penal enact
ments, and under guise of taxation. TO
impose penalties which are I O be enforced
without ecourse to the ordinary tribu-
nails. The constitution protects the citi-
aen from all Judgments against his person
or property, otherwise than by q regular
Jury trial, as heretofore s~ecUstsnned
Now, the only difficulty ia enforc-
ing this guarantee, is 20 distinguish
between a tax and 2 pdhalty. That Is, a
tax which heSrs equally upon the whole
community; but that which Is added to
the burden of one citizen. beeaass Of Ills
failure to list his lapd Tar saxatiba, called
" dopm,ls. : and the dpat6te and triple tar
levied upon him, by reason of his neglect
70 pay his tax when due, can, 10 no proper
sense, be termed tazesg they are, in fact,
penalties. Judge Richardson IN Burgess
vs.. Carter Il McMullsr Law s20l saws.
II IS admitted that under this Wise mo-
tective provision Law % the land ifIha al.
legged tax shall amount to a penalty far
some infraetiOn OF the law, the Tax Cot
lecior cannot, by his authority. assess The
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