20 Cal. 318 | Cal. | 1862
This is an application for a mandamus to compel the defendant, •■as Tax Collector of the city and county of San Francisco, to accept from the relator two hundred and seventy dollars and forty-five cents, in “ United States notes,” tendered in payment of State and county taxes, assessed upon his property for the present year, and to execute and deliver to him a good and sufficient receipt for the taxes. The “ United States notes ” were issued pursuant to an Act of Congress, passed the twenty-fifth day of February, 1862, which declares that they “ shall be receivable in payment of all taxes, internal duties, excises, debts and demands, of every kind, due to the United States, except duties on imports, and of all
The general Revenue Act of this State, of May 17th, 1861, declares that all taxes for State or county purposes “ shah be paid in the legal coin of the United States, or in foreign coin at the value fixed for such coin by the laws of the United States;” with a proviso that comity taxes levied in accordance with any special Act, may be collected in such funds as the special Act may designate.” (Sec. 2.) The Act also declares that every tax levied under its provisions or authority shall be a lien upon the property assessed, which shall attach on the first Monday in March of each year, and shall not be satisfied nor removed until the tax is paid, or the property has absolutely vested in a purchaser under a sale for the same (sec. 3); and that upon the payment of any tax, the collector shall mark the word “ paid,” and the date of payment, in the duplicate assessment roll, opposite the name of the person, or the description of the property liable for the tax, and shall give to the tax payer a receipt therefor, specifying the amount of the assessment, the amount of the tax, and a description of the property assessed. (Sec. 33.) As will be perceived, the tax-payer, upon the payment of his tax, or what is equivalent, a tender of payment, in the coin designated, is entitled to a receipt from the collector, and it is the duty of that officer to execute and deliver the same. It is a duty which the law specially enjoins upon him, and its performance may in consequence, under our statute, be enforced by mandamus. (Prac. Act, sec. 467.) The tax-payer is not obliged to trust to parol evidence of his payment, which is liable to loss ; he is entitled to a record of the fact on the books of the collector, and to written evidence of the fact in his own possession. Such evidence will show that the lien which follows the property, no matter in whose hands it may pass, has been removed, and will furnish a ready answer to inquiries generally made as to the payment of the tax, when a transfer of the property is desired. If, then, “ United States notes ” are receivable for the taxes of the relator, in place of the
The question then presented for determination is this: Are the notes of the United States thus receivable for State and county taxes under the Act of Congress ? On the argument, the question whether it is within the constitutional power of Congress to make these notes a legal tender in payment of debts, was ably and elaborately argued by counsel; but from the construction we give to the Act of Congress, this question is not before us. The question is one of great magnitude and importance, upon which the first legal minds of the country differ; and until it is legitimately and directly before us, we have no disposition—nor indeed would it be proper—to express or even intimate an opinion upon it. The Act does not, in our judgment, have any reference to taxes levied under the laws of the State. It only speaks of taxes due to the United States, and distinguishes between them and debts. Its language is, “ for all taxes, internal duties, excises, debts and demands of every kind due to the United States,” the notes shall be receivable. When it refers to obligations other than those to the United States, it only uses the term “ debts;” the notes it declares shall be “ a legal tender in payment of all debts, public and private.” Taxes are not debts within the meaning of this provision. A debt is a sum of money due by contract, express or implied. A tax is a charge upon persons or properly to raise money for public purposes. It is not founded upon contract; it does not establish the relation of debtor and creditor between the taxpayer and State; it does not draw interest; it is not the subject of attachment; and it is not liable to set-off. It owes its existence to the action of the legislative power, and does not depend for its validity or enforcement upon the individual assent of the taxpayer. It operates in invitum. If authority for the distinction is required, it will be found in the oases of The City of Camden v. Allen, (2 Dutcher’s New Jersey R. 398); Pierce v. The City of Boston, (3 Met. 520); and Shaw v. Pickett, (26 Vt. 482).
The term debt, it is true, is popularly used in a far more comprehensive sense, as embracing not merely money due by contract, but whatever one is bound to render to another, whether from com
The cases of Moore v. Patch, (12 Cal. 270) and People v. Seymour, (16 Id. 340) are supposed to hold that a tax is strictly a debt due to the State. There are expressions in the opinions of the Court which, taken by themselves, disconnected from the facts, give a color to this view; but the real purport and effect of the decisions in those cases is this: that taxes levied under the laws of this State constitute not merely charges upon the property assessed, but personal charges against the taxpayer; and if from defect of proceedings in the assessment, the property cannot be sold for the payment of the taxes, it is constitutional for the Legislature to legalize the assessment, or to authorize a personal action for their recovery: in other words, that the obligation to pay the taxes is not discharged by a defective assessment of the property. Tn the latter case, the Court said it was immaterial to consider whether the taxes were “ debts in the sense of money obligations' existing by contract. The Government has the same right to enforce a duty as a debt, and may enforce it in the same way; the circumstantial difference between the two classes of obligations is nothing, so far as the power of the Government is concerned, between a man voluntarily binding himself to pay money to the Government, and the Government binding him to do so, when he has no option but to obey.” (16 Cal. 344.)
But whatever view may be taken of taxes under our statute— whether in the provisions for them enforcement they can be treated as debts due the State—the question still recurs: What did Congress intend by the act under consideration ? And upon this question we are clear, that it only intended by the terms “ debts, public and private,” such obligations for the payment of money as are founded upon contract.
Judgment affirmed.
