14 Va. 422 | Va. | 1858
The regularity of the proceeding by injunction in this case although discussed by the counsel for the appellant in his opening argument, was not controverted by the attorney general. He was under
The commonwealth being the party substantially interested in the subject matter of controversy, it might have been more regular under the provisions of the act entitled an act regulating the jurisdiction of the Circuit courts, passed May 22, 1852 (Sess. Acts 1852, p. 58, § 3), that this suit should have been originally instituted in the Circuit court of the city of Richmond in order that the commonwealth might be duly represented by the proper officer, and such officer should of course have been made a party defendant. As however the suit was subsequently removed to that court in conformity to the provisions of § 8 of ch. 46 of the Code,.p. 239, and the auditor of public accounts who had been made a party by an amended bill, duly appeared and filed an answer, all difficulties as to parties and the regularity of the hearing before the Circuit court of Richmond city, may be considered as overcome, and we may proceed to consider the case upon its merits.
The object of the bill was to test the legality of the levy made by the sheriff of Northampton upon the property of the appellant to enforce payment of-the
It has always been considered to be a most delicate office for a judge to undertake to pronounce an act of the legislature to be unconstitutional and void. It is substantially to repeal the obnoxious law and thus in effect to exercise a power properly belonging to another department of the government. “ The question (says Judge Marshall), whether a law be void for its repugnancy to the constitution is at all times a question of much delicacy, which ought seldom if ever, to be decided in the affirmative, in a doubtful case.” “It is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers and its acts to be considered as void. The opposition between the constitution and the law must be such that the j udge feels a clear and
There is certainly one proposition which will not be questioned, and that is that the legislature possesses the full, absolute, sovereign power of taxation, excepting so far as it may have been surrendered to the general government or may be interdicted by the constitution of the United States, or as it may be controlled by the restrictions and mandates of the constitution of the state. See City of Richmond v. Daniel, not yet reported, opinion of Samuels, J. And this power it is most important should be sustained and upheld as essential to the very existence of the government of the state, and as providing the means for vindicating her sovereign authority. See Providence Bank v. Bil
The counsel for the appellant does not controvert this position, but he insists that the particular tax in question though not expressly and in terms prohibited by the constitution, is yet as effectually prohibited by the most necessary implication from its provisions as if the power to impose it had been expressly denied. He insists that it is in effect purely a tax on property, or if it is not to be regarded as a tax on property but on a benefit or privilege to the citizen, that the power to impose it is excluded because it is not enumerated amongst those authorized to be imposed by the twenty-fifth section; and whether a tax on property or privilege it is equally violative of the twenty-second section of the fourth article of the constitution which declares that taxation shall be equal and uniform throughout the commonwealth. He also maintains that if it is to be considered a tax on property, it conflicts with the provision of the twenty-second section which declares that all property other than slaves shall be taxed in proportion to its value and with the twenty-third section of the same article regulating the taxation of slaves.
If this tax were properly to be considered as a tax on property, there would be great force in the argument of the counsel. As the ordinary annual tax had been assessed upon the decedent, this would then ap~
The case of Brown, &c. v. The State of Maryland, 12 Wheat. R. 419, was cited by the counsel. In that case it was held that the prohibition in the constitution of the United States to the states to lay duties or imposts on imports or exports, prevented them from requiring the importer to take out a license and pay a tax before he could be permitted to sell the articles by the bale or package; and that the requirement of such a license and tax before the importer could sell also conflicted with that provision of the constitution which declared that congress should have power to regulate commerce with foreign nations and among the several states and with the Indian tribes. The court considered that as the importer had paid the duty imposed by the act of congress, he thereby acquired the right not only to bring the articles into the country but also to dispose of them afterwards, that being the essential object of the importation and the motive for paying the duty. But I do not perceive how this touches the question in our case. It was not decided that a tax on the transitas of property and on the property itself, were one and the same; but it was held that both the right to import and the right to sell the merchandise after it was imported were secured to the importer by the payment of the duty imposed by the act of congress, the power of conferring both these rights having been appropriated to the general government by the constitution and necessarily therefore denied to the states.
The objection that the tax is not levied upon the heir or legatee but is to be paid out of the estate of the decedent, and that therefore it cannot be considered a tax upon the privilege of succeeding to the property, is I think more specious than real. Whether
That the general assembly of Virginia in the absence of a constitutional prohibition does possess the power to tax a civil right or privilege like this is beyond all question. This is fully embraced within its general and comprehensive power upon the subject to which allusion has already been made. But it may be deduced from the very nature of the subject itself. The right to take property by devise or descent is the creature of the law and secured and protected by its authority. The legislature might if it saw pi'oper, restrict the succession to a decedent’s estate, either by devise or descent to a particular class of his kindred, say to his lineal descendants and ascendants; it might impose terms and conditions upon which collateral relations may be permitted to take it; or it may to-morrow, if it pleases, absolutely repeal the statute of wills and that of descents and distributions and declare that upon the death of a party, his property shall be applied to the payment of his debts, and the residue appropriated to public uses. Possessing this sweeping power over the whole subject, it is difficult to see upon what
Assuming then that this is a tax upon a civil right or privilege, which the legislature may impose if there be no prohibition in the constitution, we are to enquire whether there be any such prohibition. None certainly in terms is to be found in that instrument, but it has been argued that as it is not one of the subjects named in the twenty-fifth section, the power to impose it is excluded by necessary implication, upon the principle expressio unius exchtsio cst alierius. But this argument would prove too much, for it would sweep away the taxes on deeds, suits, notarial seals and that class of subjects, the constitutionality of which has never been questioned by any one. It would restrict the whole power of taxation to the particular subjects named in the twenty-second and three following sections. But this surely could not have been designed by the framers of the constitution. If those four sections had been entirely omitted no one can doubt that the legislature would have had full power to tax all the subjects to which they relate. The three first of these were plainly not intended to confer a power of taxation; they prescribe rules by which the power already supposed to be possessed by the legislature shall be exercised. The language of the twenty-fifth section is somewhat different and might seem to be permissive in its character; but the section seems
If the power of taxation then was intended to be exercised over other subjects than those named in these sections, it is not surprising that in their number this tax should have a place. It is a tax of great antiquity having been imposed upon the Romans as early as the days of the Emperor Augustus. It was adopted by various nations of Europe, and together with the tax on transfers of property among the living, constituted in ancient times according to a learned writer, one of the principal branches of the revenue of the feudal crown. See Smith's Wealth of Nations, p. 387, et seq. In modern times, it is in some shape or other a tax of frequent imposition, and that it was not introduced into our system at an earlier day was perhaps only owing to the fact that the exigencies of the treasury had not sooner required a resort to other subjects of taxation than those previously adopted. It was first imposed, I believe, by the act of 1843-4, and at the late revisal of 1849 was re-enacted as a regular and permanent tax. And at the first session of the general assembly after the new constitution was adopted and when the cotemporaneous history of that instrument must be supposed to have been fresh in the memory of the law makers, it was recognized as a valid existing subject of taxation and the rate fixed at which it was to be levied.
If this tax is not to be regarded as a property tax, the counsel concedes that the ad valorem principle cannot be applied to it, and therefore that it is not within that provision of the twenty-second section nor those of the twenty-third section; but he ai’gues that every tax of what nature soever is within the principle of equality and uniformity prescribed in the
I think it may well be questioned whether all the provisions of the twenty-second section are not to be confined to taxes on property. The argument to show that the principle of equality and uniformity was intended to apply to them alone is at least strong and persuasive. The cotemporaneous history of the constitution proves that this section grew out of the supposed antagonism between the eastern and western portions of the state in respect of the slave property so predominant in the former. Had the interests of all portions of the state been uniform and homogeneous, the principle of representation would have afforded adequate protection to the tax payer against injustice and oppression, and no such provision would have been introduced. As they were deemed otherwise, a guarantee was demanded, and the controversy was adjusted by the concession of the provisions of the twenty-second and twenty-third sections. See Gilkerson v. Frederick Justices, 13 Gratt. 577, opinion of Samuels, J.; Slaughter's Case, Id. 767, 775, opinion of same judge. Now the reason of these sections cannot extend to subjects as to which no discrepancy of interests exists. This discrepancy is in the matter of property alone, and there can be no sectional difference in respect of devises or descents to collaterals any more than there can be in respect of incomes, salaries, notarial seals, and the like.
A similar provision is to be found in the constitutions of several others of the states, and the same terms “ equal and uniform” are employed in most of them. In the constitutions of Tennessee, Louisiana, Arkansas, Massachusetts, Illinois, Texas, Wisconsin, Michigan and California, the rule of equality and uniformity is enjoined either in terms or by equivalent
In view then of the construction of these terms which has prevailed elsewhere, and bearing in mind the particular reason which led to the adoption of the twenty-second and twenty-third sections, the inference -is strong that property only was in the mind of the framers of the constitution ; and it is further strengthened by the fact that although incomes and salaries as well as property of assessable value may be brought under the rule, yet there is a large class of subjects, such for example as licenses, which do not admit of a tax strictly equal and uniform in the sense contended- for; and thus the constitution is to be made to conflict with itself, and a large and important branch of the revenue is to be cut off, because it cannot be brought within the .rule of exact equality and uniformity. It is true the language used is broad •enough to cover every thing, and if it be conceded that the rule must apply to all subjects, yet as remarked by Judge Samuels in Slaughter's Case, 13 Gratt. 767, it can only be so applied so far as practicable. If a given subject be only susceptible of a modified application of the principle, it must réceive 'this, and not be rejected because the rule cannot be
In this view I do not perceive wherein the inequality and want of uniformity complained of can be said to consist. To say that the decedent’s estate is charged with the regular annual tax and then with the additional tax on the transmission to his collateral heirs or devisees, and thus charged with taxes greater than those imposed on other citizens, is but to repeat the argument that it is a property tax which I have already considered. The tax is equal and uniform, throughout the state as far as it is susceptible of the application of the rule. It is the same every where upon the succession to estates of equal value of whatever subjects they may consist. Every person, every where, who takes by this succession, pays a tax for the privilege, and this tax is proportioned to the value of the interest which he acquires. But in this, it is said, there is a want of uniformity; that unlike the tax on deeds, seals and the like, it is not fixed at a sum certain, the same to all, but varies according to the value of the estate taken. In other words that the legislature in seeking to carry out the principle of equality as far as practicable have destroyed that of uniformity. I think there is no force in the objection. To such subjects as deeds, seals, &c. it may be that the principle of equality cannot be applied. The legislature have thought so ; certainly they have not attempted to apply it. But to the succession to property, as between those who constitute the class of such beneficiaries, the application is easy and simple, and the legislature have sought to make it by fixing the tax at a certain per centum upon the property acquired; and have in this mode as far as practicable carried out the rule of equality and uniformity. Nor does the exemption where the estate is of less value than two hundred
But it is said that the principle of taxation in cases like this is of dangerous tendency and inadmissible, because, if allowed, the legislature may under the form of taxing transfers and sales of slaves between the living, impose taxes to any amount whatever upon that species of property, and thus break down the guaranty which it was the intention by the compromises of the constitution to afford to the eastern people against injustice and oppression. It is the argument oft repeated of the possible abuse of power, and may be urged with equal truth of any power whatever possessed by the legislature, however indisputable or how indispensable soever its exercise may be for the public welfare. Any power wielded by mere human will may be 'abused. For myself, I do not question the power of the legislature, by requiring a license or otherwise, to impose a tax upon the sale of slaves, any more than I do that of imposing a tax upon the sale of cattle or any other property or a tax on stamps, if the exigencies of the public finances should be such as in their opinion to render a resort to such a source of revenue necessary, whatever might be my opinion as to the wisdom and policy of imposing burdens of this character. But the power to impose such a tax
It remains to consider the ground taken for the first time in the argument here, that in point of fact there was no law in existence at the time of the levy of this tax which authorized or required it to be made. There is no suggestion of this kind in the bill, and if it were true, the sheriff in thus acting without any authority would be a trespasser and liable to the action of the aggrieved party for damages. As however the case has been bona fide instituted and brought up to this court upon the constitutional question, it may not be improper to deeide this question also and thus put an ' end to the litigation between these parties.
This tax was declared by the Code (ch. 85) and made a part of the permanent system of taxation. By chap. 40, the rates of assessment on the different subjects of taxation are fixed and prescribed. The Code took effect on the 1st of July 1850 and at the following session of
Now the testator died in June 1855 and the tax immediately thereon accrued to the commonwealth although the collection could not be enforced until the following year, and it was the duty of the sheriff to proceed to collect it in 1856 according to the rate prescribed by the act of March 2, 1854, notwithstanding the legislature had omitted to fix any rate in the tax
I think the Circuit court did not err in dissolving the injunction and am of opinion that the order be affirmed.
Decree affirmed.