Year: 1860

titOner of his right to have the case presented to
the Supreme Court. And in the consideration of
the question now before the Court, they do not re-
gard 1t Legitimate for them to examine into the
regularity of the proceedings in the Police Court
as they would do on a writ of error. In the case
exparte Myra Clarke Whitney, Is Peters, 4O4,
Judge Story said that the prayer of the Petitioner
was TOR n mandamus u the nature of writ of
precedendo to compel the Circuit Court of the Unit
ed States to proceed according to chaneery prac-
tce, in her suit against Richard Reef and others
to answer her bill, and to suffer the petitioner in
all things to proceed in the cause in suc9 manner
as the Constitution and laws of the United States
and the principles and usages in equity would au-
thorize.


That it was the duty of the Circuit Court to
proceed in that suit according to the rules pre-
scribed by the Supreme Court for proceedings in
Equity causes at the February Term thereof, A.
d. 1922, could admit of no doubt. That the pro-
ceedings of the District Judge, and the orders
made by him in the cause, which were complained
of, were not in conformity with those rules and
with chancery practice could admit of little
doubt. But the question was not as to the regu-
larity and prOpriety of those proceedings; but
whether the cause before him one in which a
mandamus ought to issue. And he was Of opin-
ion that it was not such 4 case. The District
Judge proceeding in the cause, however ir-
regular that proceeding might be deemed and the





an appeal after the final decree should be had in
the cause. See Is Peters, 9 ; Ia Peters, $780, GA.


Il is the duty of this Court to review the pro-
ceedings Of the subordinate tribunals on all proper
applications when they exceed their Jurisdiction, or
assime power not warranted by law, and if the
Police Magistrate, as is alleged by the counsel for
the petitioner, assumed powers vested in a Court
of Equity, he misaT pretended his duty and his
powers, and it was a clear misapplication of the
meaning and intent of Sec. IL Of the Civil Code.
Ii is due to him to say, however, that he alleges
that he intended to claim no such equity power,
but merely to exercise sound discretion in his in
depreciation Of the provisions OF the law on which
the application for the order Of sale was made.
1t is cOntended in this that the duty OF the
Police Judge is ministerial, and that instead of not
proceeding, that he has proceeded too far in seek
ing for basis on which to rest his judgment the
application for an order of sale. w hlle by the
learned counsel for the respondent in that applica
tion it is contended that if his acts should have
been ministerial under the provisions of the tax
law, still having conducted the matter ludlcaly,
he cannot now be released from his course of pro-
ceedng This question having been raised, and
ably argued, although not necessary for the de-
csion of the motion for mandamus, still the Court
regard it their duty to give construction to the
statute upon which the original proceedings were
predicated and which gave occasion for this appli-
cation. The Section referred to is as follows


SECTION SOB The collector payer
the meet him at convenient points settlements
the district in the months of September October and Novem
demand of the assessed aforesaid and
shall neglect refuse to his taxes, when so
called upon notified until day of November the
goods cates OF such person. he deem sufficient for
the payment Of taxes and expenses Of collection and sell the
upon order the District Judge Police Magistrate
public notice Of five days In property be
of said judge magistrate be compelled to discharge
the amount of his tax by labor the public roads other pub
lie. The anff frantv-f five ats Dpr davn


That portion of the Section which authorizes the
collector distrain the goods and chattles for
payment of taxes is very clear, and in accordance
with the usual provision of laws for the collection
of taxes in other countries. The theory of the law
is that the Government must be sustained, and to
do this it must be saved from bankruptcy, and
therefore this summary proceeding has always been
regarded as a necessity. Those statutes are de-
signed to prevent delay in the collection, giving
however all legal rights afterwards to test the val
idity of the law imposing the tax, and the mode of
| assessment-in fine, all other questions bearing
upon it. This theory peryades all laws for the
raising Of revenue for the support of governments
| Duties are paid at the Custom House under pro-
test, and the remedy is sought afterwards in the
courts of the country. Still the money is paid in
all cases. no matter whether it arises from Internal
| taxes or from duties upon impOrtatiOns. In the
United States special statutes have been passed to
hasten the proceedings in suits on bonds for duties,
| and which do not apply to suits at law generally.
1t is there made the duty OF the Court, when suit
! has been instituted on any bond for the recovery
of duties, to grant Judgment at the return term
| upon motion unless the defendant shall in open
court make oath that an error hath been committed


in the liquidation of the duties demanded upon said
bond specifying the error. Ii the court are satIs-
fed that continuance is necessary for the attain
ment of Justice, and not otherwise, continuance
may be granted to the next succeeding term and no
longer So that the of legislation for the
collection of internal taxes are always summary,
and whenever bonds taken for the collection OF
duties on importation, which believe few coun-
| tries now permit, more summary course Is I'M
posed on the courts than in ordinary suits. This
however is not intended to infringe upon or sacrI-
fee the rights Of the tax payer whatever defence
| he may have against the claims Of the Government
can be fully presented, and if founded in law and
justice will most certainly prevail Had the stat
ute of this Kingdom conformed to that of most
other countries for the collection of internal taxes,
no question would probably have arisen on its con-
struction, but an additional provision is made to
the effect that after the collector has distrained the
goods and chattels it is made his duty to make ap-
plication to the District Judge or Police Magis-
trate for an order of sale of which public notice
of FIVE days shall be given. In the application for
the order of SALE is the duty of the District Judge
or Police Magistrate merely ministerial! 1t is true
that judicial officer may by statute be empowered
to perform merely ministerial duty, and u man
damus is the proper mode by which to enforce that
duty-such for example as signing Judgment, or
granting bill of exceptions. But in this case, IT
the duty is merely ministerial, OF what use Is 1t !
| Ii the magistrate has no more power than this,
why the additional provision 1t is to be re-
gretted that the Legislature does not state fully
the intent of the law and the drty of the officers who
are to enforce it. If the tax payer was to have by
this statute an additional guard over his rights, to
what extent does this section give it The learned
counsel for the petitioner contends that the duty is


judicial to the fullest extent and that it is the duty
of the Court as fully to consider the in all its
legal bearings, viz the validity of the law impos-


ing the tax, the mode and manner of assessment,
and the acts of the collector if he had insitut
ed action of trespass against the collector for
seizure of the goods. The law contemplates an