Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1872-07-11
ryrpoRrAxr PRECISION.
The Privilege Tax on Goods.

case of Friedman Bros. ct al. VS.. j. Harvey
Mathes, by appeal in error from the First
Circuit Court of Memphis, in favor of the
defendant. The litigation was between q
number of commercial firms of Memphis
and the defendant, as collector Of the privi-
lege tax of Shelby county, to determine the
validity of an assessment upon that portion
Of the capital of the plaintiffs used in the pur-
chase by them of merchandise sold to nom
residents, and sent beyond the limits of the
State. There were six other cases before
tee Supreme Court by an appeal in error
from Judgment of the Circuit Court, dis
missing the plaintiffs petition for certiordri
and s,tpersededs. In view of the opinion at
Nashville, in the case of &icEwen VS.. the
Collector of Davidson County, declaring
the constitutionality of the occupation tax
upon the capital used by the merchants in
the purchase of goods sold within the limits
of the State, this question was abandoned,
the ONLY question involved in the proceed
ings by certiOrart being the legality
OF the assessment upon the capt.
tai used in the purchase of
merchandise sold to non residents and sent
beyond the limits Of the State, in the argu.
ment of which question two propositions
were insisted upon by the counsel for the
defendant: First, that the assessment is
valid under the law; second, that if the
same be held to be illegal that the writ of
certiorari is not the remedy by which the
plaintiffs can be revived. In regard to the
first, the Court directly pronounced that any
law authorizing tax greater than the ad
valorem tax upon that portion of the mer-
chants capital used in the purchase of mer-
chandize which is sold to non
residents ard sent beyond the limits
of the State is unconstitutional and void.
The second question-made upon the rem
edy-that the plaintiffs should have paid
this unjust and oppressive tax under pro
test and relied upon their several actions
against the collector for reimbursement, y
Starg, Ev. 1922 is unstable. Money paid
to the sheriff fop assessed taxes, especially
after paid by him into the treasury, cannot
be recovered. (VI Yerg., 4S4.) TO de-
feat the remedy of certiorari, the defend
ant relied on the act of 1913, Oh. 70, sec.
1G, providing that no injunction or petition
for mandamus shall be granted TO any
Judge or court in this State, or any bill or
petition fer mapadmus, alleging the
Illegally or unconstitutionality Of any Of
the revenue laws of this State, restraining
any officer charged with the collection OF
the public taxes of the State, except upon
final hearing of any cause in the court of
last resort, if an appeal should be taken TO
that court. (Shank supp. 220) TIE
Court held this law does not forbid the
remedy by ceTtiorari. which issues under
the English practice, both out of the chance
~ and out of Kings Bench, etc, wide L
Tidds' Pr, 329)-for difference in writ Of
error and certiOrdri in summary way or
new course from the common law
on certain judgments ride IL Tidds'
Pr, 1851.
The'court held that from the earliest
period the certiorari has had much more
extended application given it here than in
England, and has been used for purposes
wholly unknown to the common law-adopt
ed with US as the almost universal method by
which the Circuit Courts, as courts Of gem
eral jurisdiction, both civil and criminal,
exercise control over all inferior jurisdic-
tioDs however constituted and whatever
their course of proceedings-that the usual
remedy by the common law in cases of
wrongful distress is an action Of distress or
replevin, or that either Of these remedies
might be resorted to here, does not
by any means establish the conclusion
that the certiorari under its enlarg-
ed remedial operation by our
law will not lie in case like the present
al Hump, $50; Tenn, ISL; 4 Hay, 81
50; 2 Hump 30). 1t has been uniformly
recognized as a proper remedy to avoid or
correct oppressive and unlawful assessment
of taxes C Cold, $40, and same, 400. It
was so held in this case, the assessment be-
ing judicial act, the petition demanding
that the assessment be brought into court,
and that the same be judged unlawful. A
ministerial act is that which is done under
the orders of superior, as the Sheriff who
obeys the mandate of the court. If an Of
fcer do an at depending on the exercise
of his slightest Judgment or discretion on
his part, then the act is judicial; whatever
may be the general functions of the officer it
is judicial function to decide upon ques-
ton of Individual right-a court martial eX
erciseS it in filming a man; it decides that he
has forfeited that much of his money
corporation in expelling member. Car
L. S $50. Under our statute the writ may
be granted in all cases where an inferior
tribunal, board or officer exercising officiIl
functions, has exceeded his jurisdiction or
acted illegally. Code, Sec. 8, 123, 2 Yerg.
TIC, $50; 2 Sneed, 672.) 1t lies, the old law
books say, 10 all courts not prosecuting ac
cording to the course of the common law,
and when without the writ CT certiOrari
there would be no remedy against an illegal
sentence. l Burr, 153; Burr, 6S2; 8
Burr, 1,l63.
If it be then judicial function to decide
upon question of individual right, then
the defendant has done judicial act in as
sessing the tax complained of-he has not
only adjudged the constitutiOnality of tie
statute under its application to those plain
tiffs, and under their solemn protest has de-
termined that the capital used by them for
the above stated purpose is subject to The
license tax in addition TO the dd rntOrcm
taX-in this judgment he has, with doubt
less the most conscientious intentions, done
wrong to those plaintiffs, for which the
writ of certj0rdri affords them ample rem
edy.
The court further held, that the defend
ant being the assessor as well as the col
lector of the privilege tax, had the right to
adjudicate the proper assessment under the
law, and in making an assessment he did
nothing more nor less than a judicial act.
The several judgments we're reversed and
the assessments quashed, and the costs ad-
judged to be paid by defendant out of any
revenues in his hands, for which credit is
to be awarded him in his settlement. Sneed,
j., delivered the opinion of the court.