Year: 1860

treasury may be bankrupt and It's power over
thrown. If the law passed with reference to
the anaogies have adverted to, is it not reasona-
BILE suppose that the intention of the Legislature
was to give additional means, promptly within the
time specified. Would it not be an extraordinary
stretch of judicial power and contrary to the uni
form practice of courts, that the whole judicial in
vestigatiOn should be had preliminary to the
collection of the taxes


| am of opinion that the Legislature could not
have entertained such an extraordinary intent, as
preliminary to the collection of the taxes which
they had imposed, to subject the law to the adjudi
cation Of the District Judges Police Magistrates
"a law which frequently involves the highest, and
most important principles within the range of ju-
dicial learning. 1t must be borne in mind that
while Government is bound to give protection to
the subject and to all resident within its borders,
the duty is reciprocal, by furnishing the means to
that Government to afford that protection. This
is new principle. 1t lies at the basis of all
Governments.


If, then, the duty of the Magistrate is not min
sterial, Judicial to the extent to which have ad-
verted, the question arises, what is his duty by
virtue of this statute regard it his duty to is
sue the order of sale if the official proves that he
is the legally appointed Collector, and that the
property seized is at least prima tacie the proper
ty of the person by whom the tax is due, and that
it is a reasonable quantity and that legal notice
of the sale may be given so that sacrifice may
be avoided and there may be some other requisites
in some cases to guard the owner of the property
against injury. This provision may be very salu-
tary in this country, where experience in executing
laws is less than in the old countries 1t Civ
en- by the Legislature as an especial shield of pro-
lection against inexperience injudiciOus coee-
tors, but not instrument to defeat this
of revenue, till perhaps of the highest duties
of the Government should be sacrificed, which is
the payment of its debts and the preservation of
| its credit.


| This is the view which the Court entertains of
| the statute upon which the question has arisen.
| should not have given this opinion upon the stat
| ute a motion for a mandamus had it not been
presented and argued by the learned counsel in the
case As it has been, | felt it my duty to do so.
There is another reason why the Court would
feel obliged to refuse the mandamus, even if the
views SO ably presented by the petitioner, that be
was now entitled 10 q full judicial investigation
were tenabe. regard the application for the sale
of goods and chattels seized by the Collector as
unlike suit at law. Pleadings are not required
no formalities requisite. In a suit ut law it
is the duty of the Court to decide the case pre-
sented. The application for an order to sell is di
rected to the sound legal discretion of the magis-
trate and it is his duty to exercise it. The stat
ute makes it his duty to investigate the matter,
and although the Collector or the person taxed
might not conform to the rigid rules of presenting
a case in a common law court, still should regard
the Magistrate derelct in his duty, if he failed to
pursue the investigation till he became satisfied
whether it was his duty to grant the order or not.
| In suit at law the duty is upon the parties to
present their case. In application for
der to sell under this statute referred to- it is the
duty of the Magistrate to satisfy himself; and
that duty cannot be defeated either by the stupid
ity the negligence OF the adroitness of one party
or the other in their application to the proceedings
| of the rigid rules which obtain in common law
courts.


The Legislature could not have anticipated that
| the Collector would become party to a lawsuit,
on every application for order to sell the goods
and chattels which he may have seized for the
payment of taxes. The provision is unusual, and
the proceedings under it are still more so, but a
little practice may make it feasible and useful,
and prevent the Collectors from hasty or impru-
dent administration of their Office.


In view of the principles which govern the is
! sue of writ of mandamus, | am of opinion that
this is not a case that will warrant it. 1t would
be a new application of the writ. The effect of
this mode of interposition would be to retsrd the
| proceedings in the inferior Courts, so that the
same cause might before this Court in various
forms before final Judgment.


The petition is therefore dismissed with costs.
G. C.. Harris attorney for petitioner.


A. B. Bates for the respondent


February 18th, 1860.