The true northerner., 1885-05-14
The TAX LAW.
Recent Opinions of the Suprems JUS
tees Given in Full.
A Natter OF Great Interest and I'm
portancs to the People.
How the Judges Are Divided on the
O,nstituionality.

of the Wayne Circuit. was affirmed. The action
or the court Is OF great interest and Importance.
State. The opinions OF the Justices are as fol-
lows:
JUsTIcR COOLEY
When the case y the Iron Cliffs Company was
decided assumed-unwarrantably it seems
that the Judgment. though rendered by
a divided court. would be accepted by
Inc Inc Circuit Judges as law, and followed by
ruled by majority of this court. 1 have al
ways supposed that was the proper course, and
~ G seemed to ne course so necessary 70 dlgni,
never would have occurred to me that any other
conld be taken Such division OF the court Is
liable TO occur at any time; and there are so
many cases which, by reason OF interest, con-
sanguinity. or former connection with the con-
troversy. some one Judge Is disqualified from
sitting that there would be constant liability TO
an equal division IL tho court consisted OF an
unequal number. III. therefore, decision made
may be dsregarded by n Circuit Judge because
not made by majority. we have and can have
Circuit Judge will determine for himself con-
clusvely what shall be the law for his circuit,
and may make It different from the law OF the
adjoining circuit This would 80 much resem-
BILE judicial scandal that should deem It my
duty 10 prevent it by yielding my own opinion
when the same question should come up again.
II yielding should be essential TO prevent such
consequence. The notion that there can be any
thing improper or opposed to good morals In q
Judge Welding his opinion when proper ad-
not quite understand. Judges are certainly do
ing that every day: IL would be n great mistake
to assume that every Judgment In which court
unftes expressed In all respects the views or
every concurring Judge.
In this particular case the reasons for abiding
by the first judgment are peculiarly strong, be-
cause the case ia substantially the same. The
State proceeds In each county separately to OBJ
tain an order of sale; IL one proceeding had
been provided for instead of several, "a might
have been done but fOr reasons of convenience,
wOuld nnQueStlOn-
ably apply.
have no inclination to go again into an ex-
animation of the legal questions. have read
with interest the opinion of my brother Camp
bell herewith filed, but cannot see how IL
strengthens his former opinion Much that my
brother Sherwood says on the constitutional
question do not concur in, for the ason that
1t is distinctly opposed to the current of author
fty-and may FAY to the almost unanimous
consent of authority. The Intervention of the
Judiciary in tax proceedings Is provided tor In
many States. and is had and has been had for
great many years without question. shall
take the liberty of adding a reference 70 cases
In a note TO this. When my brother Sherwood
says that due process of law can never be made
to mean less than the prosecution of a suit
In our courts according TO the prescribed and
we'll settled rules of practice for the purpose OF
establishing some ri hit or determining the title
to or the value of property; and no person can
be deprived OF his property against his will
without it, he lays down a principle which Is en-
tireiy proper in judicial proceedings, and which
might be applied and enforced under this stat
ute, but which has always been held entire
ly inapplicable in ordinary tax proceedings.
Appealing TO that principle therefore, seems to
me to be attacking his own general views as APP
piled IN this case.
shall be decided; but it seems to me that on
constitutional questions the court IL drifting TO
this po .ition: that those statutes are consti-
tutional which suit us and those are void which
do not NV own views OF the proper distinc-
tions between legislative and judicial authority
do not permit OF my concurring.
concur in the foregoing.
CAMPBELL, J.
As stated my reasons for holding the pro-
ceedings IN the irC nit Courts. under the tax
law OF 1882, invalid in the case of Iron Cliffs
Mining Company va. The State of Michigan, i do
not deem IT necessary upon the present contro-
versy, which involves no different consider
ations, TO repeat them The argument. except
on the direct constitutional questions. was
chiefly aimed at lmpugning the propriety OF
declaring laws unconstitutional where there IL
any serious difference OF opinion in courts or
among Judges But as every Judge is sworn to
support the constitution and nothing else and
as his duty TO support the statutes must there
fore, depend on their conformity to the consti-
tuition. do not think. at thi late day in Amer
ican Jurisprudence tnat any Judge is called
upon to vindicste or explain his right or duty
TO decide such questions as on his official re-
sponsibiiity he IN satisfied they should be de-
cided. Whatever care is required of him in
forming his conclusions, he Is bound to act upon
them when formed.
Neither is it true that any OF the questions
presented can be regarded as new. The division
between judicial and administrative functions
Is radical and Ia found defined more or less
clearly In all systems of jurisprudepce. Pow
ers that have been exerc sed since the beginning
of the Government by executive functionaries
cannot be regarded as judicial, and under our
Constitution, which expressly confines the ju-
dicfal power to courts which are designated,
and forbius each department to exercise any
functions OF the others except in the few spe-
cIfically named cases, courts cannot become ex-
ecutive agencies. And IL at empts are made to
put controversies in the way of judicial decision
1t must be by due process of law, which, when
applied TO courts, compels them to confine their
action to cases where the methods conform to
the settled principles of Jurisprudence. 1 have
previously liven my reasons for the conviction
that this proceeding IL not due process of law,
either executive nor judicial. III the judgment
here is held not conclusive, then it is in law no
judgment Mt all. and leaves the court precisely
where the Auditor General was left before.
Finality is the clear object of the change. The
action OF the supreme Court of the United
States In refusing to treat the Court OF Claims
as a judicial body until its JUDGMENTS were
made final is an illustration of this princi le
AS parties on both sides, in the 70 mer con-
troversy and in this, did not deny the power OF
the Legislature TO employ Commissioners 10
draft single laws, did not then and will not
now discuss the question, as it had been done
on two or three occasions which have not been
questioned. and are not likely to be. The ques-
ton is under this law, and the law providing
for the commission. whether Commission RS
can be allowed to intervene in the actual work
of legislation. That they have done so, in the
most important functions OF both bodies Of the
Legislature, have endeavored TO show hereto
fore. and do not propose to discuss again. But
1t seems TO be assumed by counsel that the OBJ
jections to such private interference with legis-
iation by Commissioners are novel Upon this
matter 10 may not be out OF plaoe to refer to the
legal history OF the State. which indicates on
all of the questions involved here, more fore
sight than Is supposed to have existed.
The Constitution of 1885 contained no limita-
ton on the number or quality of the courts
which the Le gislature might establish, and the
full judicial power over cert lin classes of sub
jects ws vested In sorne rersons or bodies
which under our decisions coum not be allowed
to exercise n. The egislature as one OF fts
earliesf acts in the spring of 1856, before the
Judicial DE artment OF the State had gone into
operation. and when the government was still
imperfect, appointed Judge fletcher. who had
previously compiled the Territorial laws, e
prepare and arran ee code of laws for the State
and report TO the Legislature. Instead OF
compilation (which. it appears, was all that the
Legislature intended, see preface to r. s. o.
1880. he pref ared new and what was meant
whereby the law several subjects was essen
TALLY rcvo,ut oui ed. Before the Leg stature had
acted "a on itsCmc important matters were found
TO have been ent rely overlooked. and the Com
missioner was given further time TO report
An d.ourned session was held I'm the sprinf
OF 1857. chiefly for the purpose OF ex-
amining the chapters submitted. when it was
found iurther omissions existed, which were
mostly at empted to be supplied immediately
bv new re icrcnco AM direction At that aes.
81 .na -.