Burgess v. Pue, 2 Gill 11

Burgess v. Pue

2 Gill 11 | Md. | 1844

Stephen, J.,

delivered the opinion of this court.

This action of replevin was instituted in the court below to recover certain property which had been taken by the appellant, as collector, for a school tax alleged to be due by the appellee, and which had been imposed by the taxable inhabitants of a school district, under the system of primary schools as established by law. The judgment of the court below was in favor of the plaintiff in that court, and defendant appealed to this tribunal to obtain a reversal of that judgment, on the ground that it was erroneous, and that the suit ought not to have been sustained.

In support of the decision which was rendered in his favor, the appellee has taken several exceptions to the legality of the proceedings of the meeting of the inhabitants by which the levy was made, and also to the validity and regularity of the meeting itself. Mere formal objections are cured by an act of Assembly which was passed for the express purpose of healing all such informalities. Under the operation of that act, which passed in the year 1828, ch. 169, all matters of form are to *18be disregarded, and matters of substance alone to be attended to; its language is, “ that the aforesaid act (meaning the act for the public instruction of youth in primary schools throughout the State,) and this act be, and the same are hereby declared to be, public and remedial acts, and shall be construed by all courts of justice according to the equity thereof, and no proceedings of the inhabitants or of the trustees of any school district, shall be set aside or adjudged to be void, for defect of form, or for any irregularity therein, so as the requisitions of said acts are substantially complied with.” But the objection to the legality of the appointment of the collector is, we think, fatal and well founded, notwithstanding the provisions of that act. His power to act was not legitimate, because he was not elected by the competent authority. The act of 1825, ch. 162, sec. 8, expressly vests the power of appointing the district collector in the taxable inhabitants of the district, and by sec. 11, he is required to give bond, with security, to the satisfaction of the trustees, for the faithful discharge of the duties of his office. The same section further provides that the collector of the county charges may be eligible as the district collector, but the election, to be valid, must still be made by the taxable inhabitants, as the power of the trustees is limited to the taking of the bond, with security. By an act of Assembly passed in the year 1837, ch. 90, it is made the duty of “ any sheriff or county collector, in Anne Arundel county or Howard District, in the event of being selected or appointed a collector for any or all of the school districts, to accept of the appointment, or forfeit for each refusal the sum of one hundred dollars ;” but no change in the mode of appointment is provided for or authorised by that act. The collector in this case, not being selected by the competent authority, that is to say, by the taxable inhabitants of the school district, had no legal warrant or authority to act, and all his proceedings being tortious and unlawful, the action of replevin was properly sustained by the court below. This defect renders it unnecessary to inquire whether other objections, which have been taken to the proceedings, are fatal.

*19We think there was no validity in the constitutional question which was raised by the appellee’s counsel in the course of his argument, relative to the competency of the legislature to delegate the power of taxation to the taxable inhabitants for the purpose of raising a fund for the diffusion of knowledge and the support of primary schools. The object was a laudable one, and there is nothing in the Constitution prohibitory of the delegation of the power of taxation, in the mode adopted, to effect the attainment of it; we may say that grants of similar powers to other bodies, for political purposes, have been coeval with the Constitution itself, and that no serious doubts have ever been entertained of their validity. It is therefore too late at this day to raise such an objection. The ground of the objection taken in the argument to the constitutionality of the tax, seemed to be, that the act of the legislature delegating the power of taxation to the taxable inhabitants was a violation of the fourth and twelfth sections of the Bill of Rights, the first of which provides “that all persons invested with the legislative or executive powers of government, are the trustees of the public, and as such accountable for their conductand the last, “that no aid, charge, tax, fee or fees, ought to be set, rated or levied, under any pretence, without consent of the legislature.” It is not perceived how the act in question can be deemed a violation of either of those principles of the fundamental law. The tax was certainly levied with the consent of the legislature, because the power to impose it emanated from the legislative department of the government, and was expressly given by a law passed for that purpose, and there is nothing in it which can be considered as in the slightest degree impairing the responsibility of the law-making power to their constituents, for the due and faithful execution of the trust confided to them, because if deemed to be unwise or inexpedient, an expression of the popular will to that effect was all that was necessary to procure its repeal.

Some other objections to the regularity of the proceedings, connected with this case, were made by the counsel for the appellee in the course of his argument, which it is deemed *20unnecessary to consider, this court being of opinion that the judgment of the court below was correct, and that the same ought to be affirmed. judgment af firmed.