Thе complainants, as they were required to do by section 6 of the act of July 20, 1808 (15 Stat. 126), gave notice that they would ferment seventy-two hours, and aver they actually employed all that time, but that the surveyors, in estimating the capacity of the distillery for purposes of taxation, unlawfully disregarded the period fixed in the notice, and assumed one of forty-eight hours only; that this resulted in their determining upon a false capacity, and provided for the assessor a fictitious basis of taxation. They aver that taxes have been paid in full upon all their actual production and all which can be produced while the period of seventy-two hours is employed. They claim, therefоre, that the assessor, by taxing a theoretical production which they never have produced, has exceeded his jurisdiction, and the assessment being void, they are entitled to an injunction, notwithstanding the statute prohibiting its issue; that the inhibition does not apply when the proceedings are void.
The government claims the period mentioned in the notice is not obligatory upon the surveyors, but that it is their duty to fix upon the most profitable period of fermentation in order to ascertain the “true producing capacity” of the distillery, as directed by the statute; that when it is thus judicially ascertained and certified to the assessor, he must, as has been done, impose a tax of eighty рer cent, of what might be produced had the distillery been run to its full capacity as declared by the survey. It further claims that the statute prohibiting an injunction applies; that both the surveyors and assessor had jurisdiction of the subject, and their proceedings are not nullities, although irregular and illegal.
In the circumstances of this contest it would be beneficial could the court express
This condition of opinion, formed from full recent investigations of this subject in reference to a different tax, when at the bar, was at the opening of the cause announced to counsel. The argument, of far more than ordinary ability, although instructive and interesting, has not, so far as this case is concerned, materially changed it.
The accident of a judge's confidence in his opinion has but little to do with the propriety of judicial discussion. The circumstances attending this litigation, the strong feeling on the part of the complainants, and the fact that a state tribunal of the highest respectability and influence has granted restraining orders, would render a brief, unreasoned judgment improper.
Although nearly all which will be said is familiar to the experienced lawyer, yet from the probability that its reproduction here will bring it before those classes more immediately the subjects of this and similar laws, I deem it a duty to do what otherwise I should say was wholly unnecessary. If the argument seems extended, it is conceded that collateral circumstances, and not the condition of the law, warrant it.
I regret, now that I conclude to refer to а few books to justify my judgment, • that the learned counsel cited no decisions upon the first subject to be discussed. The complainant assumed that a clear violation of the statute, resulting in an excessive assessment, rendered the proceeding void, and so not a tax within the meaning of the inhibitory statute. Counsel for the government assumed as fully the jurisdiction of the assessor, and treated the degree of illegality as immaterial. Since the argument, I have been continuously engrossed in other judicial duties, and have been able to command but few hours for the examination of books. I am compelled, therefore, in order to comply with the request for an early decision, to rеfer to those which the accidents of former briefs render accessible. They are not, perhaps, the most applicable, and such in all cases as a better opportunity would have selected. .They do, however, illustrate the reasons upon which the decision rests, and are confidently referred to as in accord with a large and prevailing class of judgments to which they belong.
Section 19 of the act of July 13, 180(1, as amended in 18G7, provides “that no suit to restrain the assessment or collection of a tax shall be maintained in any court.”
If a statute authorizes an officer to assess generally, excepting in plain terms certain persons and things, and the persons and things are nevertheless taxed in violation of law, has not the officer so exceeded his power as to render his judgment void? Can it, in any sense applicable here, be said that he has jurisdiction of the subject? Courts, in reference to the same facts, have answered this difficulty according to the purpose for which the question is asked. If it comes from an officer executing a warrant fair on its face, the reply upholds the process and protects him, although the law forbade its issue. In these cases it is said the general subject of taxation, and the judicial duty of determining, either upon view or inquiry or evidence, who and what are within the law, is imposed upon the assessor; and an erroneous decision does not for all purposes render proceedings based upon it void. If an assessment made in the same circumstances is relied upon to divest a title through a tax sale it is declared to be invalid. Owing to the poverty of language, the same literal reason is given in both instances. The innocent officer is protected because the assessor has jurisdiction, and the title is void because he had none.
It is said a court of equity has not jurisdiction to decree damages, save as an incident; yet, if a defendant does not demur or object at the first opportunity, the jurisdiction is conceded. Here the term means something wholly different from its sense when we affirm that the same court has no jurisdiction to try a citizen for minder, or dissolve a corporation upon quo warranto. And this is not peculiar to a court of equity. It is an axiom in this department of the law, that consent cannot confer jurisdiction, and yet, without stopping to call it an exception, numerous decisions say that even silence will waive jurisdictional objections. If the power of special tribunals is made to depend upon preliminary proofs, and on writ of error it appears they are wanting, it is said they are jurisdictional facts, and a reversal follows. In the same class, if the record does not affirmatively show the errоr, and defendant has appeared, or the record comes collaterally in question, it is said, as jurisdiction appears without them, their proof will be presumed. [Hogg v. Water Co.,
Numerous judgments fail to indicate the
These illustrations might be greatly multiplied; they are entirely familiar, and have been noticed only as the morе brief mode of answering several elementary books where abstractions are found, the literal application which would warrant the assumption of the complainant’s counsel that an assessment in violation of law was a usurpation of jurisdiction.
Not only is this term employed in so many senses that its signification is always to be sought in the circumstances of its use, but no judge has been successful in embodying in a sentence a definition of jurisdiction, universally- applicable, even to a single class of cases. It is always necessary to restrain the generality, or help out the too limited meaning of words. The definition has always to be defined. No such attempt will be made here. Indeed, the necessities of this case will carry us nowhere near the boundaries of the doctrines which uphold the doings of quasi judicial officers. Announcing a rule for the facts in these cases only, it is sufficient that a statute has authorized the assessor to entertain the general subject of taxation, that it was in fact entertained, and a judgment,-lawful or unlawful, was-rendered concerning it. So far as this judgment was concerned; whether lawful or unlawful, is deemed - quite immaterial.
The following judgments show that similar inhibitions have been employed in all cases where the proceedings were not void, and also as pointedly that those in this case are not so: In Chegary v. Jenkins, 1 Seld. [5 N. Y.] 381, a building; .clearly exеmpt by law, was assessed, and the collector sued for seizing property. Huggles, 0. J., says: “The assessor acted judicially in deciding whether the plaintiff’s building was a dwelling, or exempt as a seminary of learning,” and proceeds to show that, although not for all purposes conclusive, ⅛-.was not void, and protected the officer.' On- page 382, it is said the remedy is under the provisions for appeal.
In Yan Rensselaer v. Cottrell,
The foliowing judgment is peculiarly applicable to some of the positions taken in argument in this case: In Van Rensselaer v. Witbeck,
In People v. Albany Common Pleas,
The intimation that the officer would be.a transgressor in this ease is probably inadvertent, as the same court, in Savacool v. Boughton,
Statutory prohibitions in different circumstances, all applicable here, were enforced, although proceedings were in violation of law, in Keyser v. Waterbury,
The position of the complainants is quite -conceded, that if the proceedings are nullities the statute would have no application. Such are the decisions in the same state tribunals from which we have quoted. The two classes are by no means in conflict. See Le Roy v. East Saginaw C. R. Co.,
Nearly every state in the Union has similar laws, or has decided without them that the common law forbids such a process where property is in custodia legis. Numerous decisions applying, or refusing to apply them, have been made, all going upon the same principle. If there is general jurisdiction in the class of cases involved, and the tribunal has judicially determined that the case is within it, the irregularities, however gross, •do not interfere with the application of these prohibitory laws.
The references thus far have been selected because they were applications of similar statutes. A few additional ones will be noticed upon the general position that the assessor, within the most limited sense of the rule, had in this case jurisdiction of the subject. Telfourd v. Barney, 1 G. Greene, '581, well lays down the rule. The petition to sell land omitted a statutory requisite. The court, adopting what is said in several federal decisions, say: “They came into court and brought in the subject matter, and the court acted. It matters not that it should have beеn otherwise. Had it power to act at all? Could it have sustained a demurrer to the petition, and given judgment for the defendants? This gives jurisdiction of the case,” &c.
Sheldon v. Newton,
The case of Wise v. Withers, 3 Cranch [7 U. S.] 331, we are aware, sustains a different rule. In that a court martial invested with power to try offenders for neglect of militia duty, in due form convicted the plaintiff. The supreme court, holding that he was exempt under the statute, declared the judgment void for all purposes, and the innocent officer who executed the process liable in trespass. This ease I do not find directly overruled in the supreme court, but a long series of judgments wholly at war with it have fully еstablished in that court a different doctrine. It would not now hold any party, much less an officer, liable in trespass, when a court charged by law with the duty had judicially determined, upon full hearing, that a person or thing capable in its own nature of being such was the subject of assessment or fine. It has very frequently been dissented from by eminent judges and authors. . It is somewhat singular that in Dyer v. Horner, 20 How. [61 U. S.] 65, its correct general definition is twice referred to, without any notice that its application by Chief Justice Marshall was diametrically opposed to the argument it is there quoted to illustrate. I feel warranted in assuming, notwithstanding Wise v. Withers, that the su
It is said, in answer to this, that the act of 1SG7 is unconstitutional; that it denies due process of law, and substantially takes the citizen’s property for public use without compensation; that it unlawfully confers on others that judicial power which, under the constitution, can be confided to the courts alone.
In order that we may appreciate fully the inapplicability of this grave charge against a statute more kindly and liberal in its provisions, so far as the court’s examinations have gone, than that of any state in the Union for similar purposes, let us see what is its utmost effect. How far does it change the common law? By that law the citizen could not re-plevin property seized for the collection of a tax. It was deemed impolitic to suffer such a remedy, and the laws of the states, nearly all of which have enacted them, declaring the same thing, are but assertions of this principle. According to the English equity, an injunction would not go in any case at all analogous to that at bar. Wide as the departures are from these principles in some of the state courts, all disclaim the jurisdiction per se. By the rarity and exceptional character of their interposition they authorize the assertion of the general rule that there was no remedy by injunction to prevent the collection of an illegal tax. Irrespective of all legislation,- there was neither replevin nor injunction. The wrong must be submitted to and suit at law brought to recover damages for its infliction.
In what, then, is the constitution or the general principles of good government violated? In order to save the citizen the delay and expense of a suit to recover back the payment which he deems unlawful, a speedy and inexpensive apjjeal is given to the commissioner, who is directed to refund all moneys paid upon illegal assessment. If dissatisfied with his decision, the citizen may sue in the courts, which, up to that of last resort, are open. He may sue his government as freely as his neighbor, and when judgment is recovered, the national treasury is devoted to its payment. Neither judicial forms nor trial by jury is denied.
When it is added that provisions for appeal and review, far less generous and protective than these, have, in the state tribunals, without exception, been adjudged, upon common law grounds, to be exclusive, and that the statute prohibiting an injunction in this case was wholly unnecessary, enacted only as a politic and kindly publication of an old and familiar rule, it would seem as if nothing was left for doubt or discussion.
The argument has not, however, been put in this form for the puipose of resting it there. If wе have misconceived the nature of these remedies never so much, there is still a broad margin in the constitutional power of the gov-eminent ample to cover any possible difference.
A short history of this subject in the national tribunals will show there is nothing left for this court to discuss on principle. All its modifications are settled by express adjudication.
Originally, actions to recover back money exacted for duties illegally claimed to be due were sustained in the national courts. Elliot v. Swartwout, 10 Pet. [35 U. S.] 137; Bend v. Hoyt, 13 Pet. [38 U. S.] 203; Greely v. Burgess, 18 How. [59 U. S.] 413, and other cases, so decide. The act of March 3, 1839 [5 Stat. 348]. provided that all moneys should be immediately paid into the treasury, and authorized the secretary to refund all over-payments. There was no express inhibition of suits against the collector. But in Cary v. Curtis, 3 How. [44 U. S.] 230, it was held that' its effect was to prevent them. In Curtis v. Fielder, 2 Black [67 U. S.] 401, the general doctrines of Cary v. Curtis were re-affirmed. On page 479, it is said, under the act of 1839, importers were not without remedy. If it was shown more money was paid than was due, .the secretary of the treasury was authorized to refund it. The constitutional principles which begat a disagreement in Cary v. Curtis were more intelligently discussed and settled in Murray v. Hoboken Land, etc., Co.. 18 How. [59 U. S.] 272. Under the act of 1820 [3 Stat. 592], authorizing the secretary of the treasury to issue a distress warrant against defaulting collectors, land had been sold. The proceeding was attacked as unconstitutional, because no hearing was given the defendant, and no trial by jury. It was said to be conferring judicial power upon other than the courts. The law, after the most full consideration, was held to be valid. It was shown that like proceedings had immemorially existed in England, and since magna charta. The distinction was between proceedings to collect public dues, and suits for enforcing private rights. Numerous instances of similar laws are cited from the several states having constitutional provisions like those quoted and relied on by the plaintiff in error.
The unreasonable extension of this doctrine is carefully limited as follows: “To avoid misconstruction upon so grave a subject, we think proper to state we do not consider that congress can withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at common law or in equity or admiralty; nor. on the other hand, can bring under the judicial power a matter which, from its nature, is not a subject for judicial determination. At the same time there are matters concerning public rights which may be presented in such a form that the judicial power is capable of acting on them, but which congress may or not bring within the cognizance of the courts of the United States, as it may deem proper.”
Philadelphia v. Collector, 5 Wall. [72 U. S.] 730, was an action to rеcover hack money paid for taxes. It is said that, but for the authority to sue, given in the statutes, the remedy
These judgments leave nothing to decide here. The power for this legislation is asserted, and its policy amply vindicated.
The same motive which has induced this seemingly unnecessary argument thus far. prompts the pursuit a little further of the suggestion that these principles are not peculiar to the federal government and courts. They have been applied in every state where questions have been raised by the citizen in reference to any governmental right.
That special remedies by appeal and review, for the correction of erroneous taxation, are always held to be exclusive, and cut off by implication all actions at law and in equity, see Little v. Greenleaf,
It has been again and again decided, under every variety of state constitution intended to secure “trial by jury,” “due process of law,” and “the inviolability’ of private property,” that the political power may appropriate it by any summary mode which the wisdom of the legislature may prescribe, and that neither the novelty nor the injustice of the form will warrant judicial interference. The following are but a small portion of the numerous judgments establishing the principle, and illustrating the tendency in our country to question and demand the reiteration of the oldest and best settled governmental powers: In Ohio this has often bеen ruled. Mercer v. Williams, Wright, N. P. 132; Bates v. Cooper, 5 Hammond [Ohio] 115; Willyard v. Hamilton, 7 Ohio, 404; Symonds v. City of Cincinnati, 14 Ohio, 147; 12 Ohio St 105. It is repeatedly said in that state that these constitutional provisions have no influence upon the power of the state to prescribe rules by which to condemn or tax the citizens’ property. So, also, Rubottom v. McClure,
If more plenary fоrms are accorded by the juducial tribunals, these and a far greater number of like determinations decide that it is only because local and exceptional statutory or constitutional provisions expressly secure them. In no instance have these old and familiar clauses been held to secure such
The whole field' of the police power is fertile with pertinent illustrations of the utter inapplicability of these constitutional generalities, when the public asserts a right. In People v. Hawley,
A strong illustration of how firmly judicial opinion is. fixed in favor of maintaining to its full extent this necessary public power, is found in the' stringent construction in favor of the. government, and against the сitizen, which has been always given to the clauses in our national and state constitutions, providing that property shall not be taken for public usé without compensation. It may be injured-indefinitely, and under this clause it has been held-no compensation is due. A private agreement would not be thus interpreted. See Sedgw. Const. Law, 524.
Cooley on Constitutional Limitations was cited to show that the governmental interpretation of the statute might carry even the taxing power beyond its limit It is not supposed much reliance was placed upon this; and it would not be noticed, did not the decisions in reference to the absolute immunity of the legislature from all judicial control in the whole matter оf taxation furnish another numerous list of examples, showing that these constitutional protections do not control the exercise of power on the part of the government. McCulloch v. Maryland, 4 Wheat. [17 U. S.] 316; People v. New York, 2 Black [67 U. S.) 620; [Bank Tax Cases] 2 Wall. [69 U. S.] 200, 3 Wall. [70 U. S.] 573, and many other federal judgments, assert the right of taxation, even to the limit' of destroying the business or prohibiting indirectly the thing assessed. Fifield v. Close,
Whenever the government seeks the property of the citizen, exercising the right of eminent domain, or by taxation in any of its numerous forms, the processes for seizure and assessment are, in the most plenary sense, within the discretion of the legislatures. It has been often said that the only correction for what is harsh and unjust is to be sought in the nature of our institutions. Those who study this history are not advocates for decreasing a power, without, which no people ever have been continuously protected and prosperous.
The bill must be dismissed. Decree accordingly.
Notes
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