80 Va. 118 | Va. | 1885
delivered the opinion of the court.
By an act approved January 26th, 1882, entitled “an act to provide for the more efficient collection of the revenue to support government, maintain the public schools, and to pay interest on the public debt,” and which took effect on the' 1st day of December of that year, it is enacted as follows: Section 1. “That the several tax collectors of this Commonwealth shall receive, in discharge of the taxes, license taxes, and other dues, gold, silver, United States treasury notes, national hank currency, and nothing else : provided that in all cases in which ail officer charged bv law with the collection of revenue due the Htate shall take any steps for the collection of the same, claimed to be due from any citizen or tax-payer, such person against whom such step is taken, if he conceives the same to be unjust or illegal, or against any statute, or to be unconstitutional, may pay the same under protest, and under such payment the officer collecting the same shall pay such revenue into the State treasury, giving notice at the time of such payment to .the treasurer that the same was paid under protest. The person so paying such revenue may at any time within thirty days after making such payment, and not longer,thereafter, sue the said officer so collecting such revenue in the court having jurisdiction of the parties and amounts. If it lie determined that the same was wrongfully collected, for any reason going to the merits of the same, then the court trying the ease'may certify of record that the same was wrongfully paid, and ought to be refunded; and thereupon, the Auditor of Public Accounts shall
The plaintiffs in error were merchants doing- business in this city, and as such, were duly assessed with a license tax for the year 1883, amounting to the sum of §600. The declaration avers that, in payment of this tax, they tendered to the defendant in error, the treasurer of the city of liiclnnond, the officer charged by law with its collection, certain genuine past-due tax-receivable coupons, cut from the genuine bonds of the State, and receivable for taxes due the State, amounting to the sum of S600. • The declaration then proceeds as follows : “And the plaintiffs aver that from thence.hitherto they have been, and still are, ready to pay to the said defendant, or to any other person authorized by law to receive the same, the said §600 in coupons in full of said taxes, and they now bring the same into court, here ready to be paid to said defendant, or to any one authorized by law to receive the same for the State. But the plaintiffs aver that the said defendant, then and there, and has at all times since, refused to receive said §600 in coupons tendered by them, as aforesaid, for said taxes, and thep and there demanded payment of the same in money alone, viz.: in gold, silver, United States treasury notes, or national bank notes; and upon said plaintiffs’ refusing to pay in money alone, as demanded by the said defendant, he, the said defendant, then and there proceeded to take steps against the plaintiffs for the collection of said taxes in gold, &e. Whereupon, and within thirty days, before the commencement of this action, the said plaintiffs paid to the said defendant, under protest, the amount of said taxes in money alone, viz.: §600 in gold, silver, United States treasury notes, and national bank notes, as re
The tax assessed against the plaintiffs being a license tax, the treasurer was authorized by law to distrain for the same as soon as the assessor's list was placed in his hands for collection. In this respect the case is unlike the attempted collection of the general property-tax, which the various collecting-officers are not authorized to take steps to collect before the first day of December in any year. This being so, the .special count alleges the tender of tax-receivable coupons in payment of the tax due. by the plaintiffs, the refusal of the defendant to receive the coupons, and that the latter thereupon proceeded to take steps to collect the tax in money, when payment thereof was made under protest. It also brings into court the identical coupons rejected by the officer, “ready to he paid to the defendant, or to any one authorized by law to receive the same for the ¡State;” and, in short, it sets forth all the facts, the existence of which, under the statute, is essential to the plaintiffs’ right to recover.
The statute does not prescribe the nature of the suit to be brought by the dissatisfied tax-payer, but it is evident that on action of some sort was contemplated by the legislature. Thus, the act provides that where judgment is rendered for the defendant, costs shall be taxed, etc.; and provision is also made for the payment by the State of the defendant’s necessary costs,
It is next insisted that inasmuch as the defendant, in rejecting the coupons tendered by the plaintiffs, acted pursuant to the mandate of the statute, the propriety of his action cannot be questioned in a suit brought under the provisions of the statute. In other words, that the plaintiffs cannot claim the benefit of the right to sue under the act, and at the same time deny the constitutionality of its requirement that taxes shall be paid in coin or notes only.
This objection is satisfactorily answered by the language of the act itself, which gives to the tax-payer, who pays under protest, the right to sue if die conceives the steps taken against him to be unjust or u,ieonxtitutioiif/l, and directs the money to be refunded if it be determined, for any reason, going to the merits of the case, that the same Avas Avrongfully collected, etc.
It is only necessary to say further that the declaration throughout is against the defendant, in his official character (/. <■., to recover a demand groAving out of his acts colore officii), and that the insertion of the common counts is not only free from objection, but is in accordance Avitli the usual practice.
The judgment must therefore be reversed, the demurrer overruled, and the case remanded for further proceedings.
Judo.aiext reversed.