Summary
In Cowles v. Brittain, 9 N.C. 204, in an opinion written for the Court by Chief Justice Taylor, it was said: "There is a tacit condition annexed to the ownership of property that it shall contribute to the public revenue in such mode and proportion as the legislative will shall direct; and if the officers entrusted with the execution of the laws transcend their powers to the injury of an individual the common law entitled him to redress.
Summary of this case from Unemployment Compensation Com. v. WillisOpinion
December Term, 1822.
The sheriff may proceed on Sunday by distress to enforce the penalty authorized by a revenue Act of the Legislature for peddling without license. The revenue law is not liable to the constitutional objection of depriving the party of the right of trial by jury; nor does it violate the spirit of that clause of the Federal Constitution which prohibits the State from laying any imposts or duties on imports and exports.
TRESPASS. The plaintiff in 1819 appeared at the town of Morganton, in the county of Burke, in the capacity of a peddler, and as such for the space of one week exposed for sale and did sell goods and wares not of the growth or manufacture of this State. The plaintiff was the owner of two wagons employed in the transportation of these goods, one of which was under his own immediate direction, and the other in charge of one Kelly, the agent of the plaintiff, who also, at the same time and place with plaintiff, offered for sale and did sell a part (205) of the contents of his wagon. The defendant, who was at that time sheriff of the county of Burke, demanded of the plaintiff a tax of $10 on each of the said wagons, offering the defendant a receipt and written licenses to peddle and hawk goods. The plaintiff refused to pay any tax on the wagon and goods in the possession of Kelly, and offered to pay to the tax on the property in his own possession, provided the sheriff would furnish him with a printed license. This the sheriff was unable to do, and plaintiff refused to pay the tax. The plaintiff continued to sell the goods until the sheriff demanded and received from him the sum of $100, inflicted as a penalty by the revenue act of 1818. Kelly had left Morganton with the wagon and goods in his care previous to the payment by plaintiff of this penalty, and on Sunday, when the plaintiff was about to leave the place, the sheriff demanded from him the further sum of $100 as a penalty for the sales made without license by Kelly, the agent of the plaintiff. This sum plaintiff refused to pay, whereupon the defendant took into his possession certain of the plaintiff's goods sufficient to raise the amount of the penalty. This action of trespass was then brought, and on the trial below the judge instructed the jury that on the subject of levying and collecting taxes the will of the Legislature constitutionally expressed was the law of the land, and therefore the revenue act was not unconstitutional as related to the said penalty and the collection thereof; that the failure of the sheriff to be prepared to deliver to the plaintiff a printed license did not authorize the plaintiff to peddle and sell his goods, but might possibly have given him a remedy of a different nature; and that if he had sold his goods as alleged by the defendant without having paid the taxes and obtained printed licenses, he had incurred the penalty; and also that the seizure on Sunday morning was legal and the sheriff not subjected thereby. The jury returned a verdict for the defendant, and plaintiff obtained a rule to show cause why a new trial should not be granted. Upon cause shown the rule was discharged and judgment rendered pursuant to the verdict, whereupon plaintiff (206) appealed.
The cause was argued at a former term by A. Henderson for the appellant, and at this term by Seawell and Wilson for the appellee.
The distress to enforce the penalty authorized by the Revenue Act of 1818 does not come within the meaning of the terms, "writ or other process," which are forbidden by the act of 1777, ch. 18, to be executed on a Sunday. The prohibition is confined to such original or judicial process as may as well be executed on any other (207) day; but it results from the nature of this proceeding that it may be executed on any day, for as the persons on whom the law is meant to operate are changing from day to day the scene of their traffic, the penalty might frequently be evaded by neglecting to take out a license during the week and removing to another county on Sunday. The objection to paying the tax for want of a printed license is repelled by the positive terms of the act, which make paying the tax and obtaining a license a condition precedent to the right of peddling. The penalty is incurred by selling without a license, from whatever cause it may have proceeded that the seller did not procure one. Nor is the act imposing the penalty liable to the constitutional objection of depriving the party of the right of trial by jury. The mode of levying, as well as the right of imposing taxes, is completely and exclusively within the legislative power, which it is to be presumed will always be exercised with an equal regard to the security of the public and individual rights and convenience. The existence of government, depending on the prompt and regular collection of the revenue, must, as an object of primary importance, be insured in such a way as the wisdom of the Legislature may prescribe. There is a tacit condition annexed to the ownership of property that it shall contribute to the public revenue in such mode and proportion as the legislative will shall direct; and if the officers intrusted with the execution of the laws transcend their powers to the injury of an individual the common law entitles him to redress. But to pursue every delinquent liable to pay taxes through the forms of process and a jury trial would materially impede, if not wholly obstruct, the collection of the revenue; and it is not believed that such a mode was contemplated by the Constitution.
The Court has thought it necessary to consider whether this tax (208) might not violate the spirit of section 10, Article II, Constitution of the United States, which prohibits the State from laying any imposts or duties on imports and exports without the consent of Congress. But, upon reflection, this tax does not seem to come within the meaning of that part of the Constitution. It is certainly not a duty upon the articles imported, for they would have avoided the tax but for being vended in a particular manner. It is more properly a tax upon the calling or employment, which is a subject of internal police, which the Legislature has a right to regulate. It is true that foreign merchandise which has once paid an import duty to the United States may thus be incidentally subjected to an additional tax; but the same objection might be made to the tax on retail stores, licenses to taverns, and auctioneers, where foreign articles are vended. It has never been doubted that the States retain a complete power to raise their own revenue from every source that has not been surrendered to the United States and prohibited to the States, and the duties on imports and exports are alone of that description. The judgment of the Superior Court appears to be correct throughout, and must be affirmed.
BY THE COURT: Affirmed.
Cited: Range Co. v. Carver, 118 N.C. 332. (209)