| S.C. | Apr 19, 1890
Lead Opinion
The opinion of the court was delivered by
' It seems to me very clear that the warrants which constitute the basis of the plaintiff’s claim cannot properly be regarded as process for the collection of taxes, and hence section 172 of General Statutes has no application to the case. These warrants were not issued for the purpose of enforcing the payment of the poll taxes, but, on the contrary, for the purpose of punishing the delinquent taxpayer for failure to perform a high public duty — the performance of which is absolutely essential to the administration of the government. They constitute, therefore, both in form and essence, criminal process, and stand upon precisely the same footing as a warrant for assault and battery, or any other misdemeanor cognizable by a
It is said, however, that this was only a temporary provision, for a year only, found only in the act to raise supplies for the year specified therein. Granting this to be so, we do not see how it could possibly alter the character of the process by converting it from a criminal proceeding into a process for the collection of taxes. It may be possible, though we do not say that such would be the effect, that this act, expiring by its own limitation with the year for which it was enacted, would afford no sufficient basis for a prosecution after it had expired; but even if that were so, I do not see how it could affect the present inquiry. The fact that a prosecution may fail because the act under which it is instituted has expired or been repealed before the prosecution was commenced, certainly cannot affect the right of the sheriff to his costs. When a warrant is placed in his hands by proper authority, his duty is to execute it, or attempt to do so. It is no part of his duty to inquire whether the prosecution is well founded, either in law or fact, and it would be impertinent
But it is contended that even if these warrants must be regarded as the commencement of criminal proceedings, and not as process for the collection of taxes, yet the sheriff would not be entitled to costs under the provisions of the act of 1884 (18 Stat., 736), which reads as follows : ‘ That in no case where there shall have been, or shall hereafter be, entry of judgment or issuing of execution in the Courts of General Sessions by the clerk thereof against defendants in said courts for fines, fees, or costs taxed and due upon the prosecution of said defendants, shall nulla bona costs be paid to the clerk or sheriff thereon by the county commissioners or county treasurers of the county in which such judgment may have been, or shall hereafter be, entered.” But this act can have no application to the present case for several reasons : 1st. By its express terms it applies only to cases in the “Courts of General Sessions,” and these cases did not originate there, nor were they ever carried into that court. 2d. The act applies only to cases in which judgments have been entered or executions have been issued, and in this case no judgments have been entered and no executions have been issued, nor could they have been. 3d. The act applies only to nulla bona costs, and the costs here claimed are not of that character. It may be that the reason of this provision was, that it was supposed that if the sheriff and clerk were deprived of the right to collect nulla bona costs from the county, they would thereby be stimulated to greater activity and more earnest efforts to make the defendants pay ; but this reason would have no application to a case like the present, for here no liability has yet been fixed upon the defendants — no judgments have been entered, and no executions have been issued, for the reason that they have not been brought before the
In order to apply the provisions- of the act of 1884 to the present case it would be necessary to strain its terms to such an extent as I do not think this court would be warranted in doing, especially when the effect would be to deprive a public officer of the costs fixed by law for performing services which he is required to render under heavy penalties.- But what is conclusive to my mind 'is, that the sheriff', under the express provisions of section 622 of the General Statutes, was entitled to demand from the county the payment of his costs in these cases, and this section is not repealed by the act of 1884, for there is no allusion to it whatever in that act, nor are its terms in any way inconsistent with the provisions of the act of 1884.
Under this view of the case it becomes necessary to consider appellants’ third ground of appeal, which is in these words : “Because the warrants were irregular and illegally issued.” The only defect in the warrants, as we learn from the argument, is that both in the affidavit and the warrant the charge is that the defendant “did neglect to pay poll tax,” whereas it is contended that the charge should have been in the language of the act, that defendant did fail and refuse to pay, and that there is no statement, either in affidavit or warrant, that defendants were residents of the county, and, as such, liable to pay the poll tax. Now, even granting that such deficiencies in an indictment would be fatal on a motion in arrest of judgment, I have always understood that no deficiency in the form of the warrant by which a criminal prosecution is commenced, would have such effect. The constitution (art. I., sec. 22) simply provides that a warrant shall be supported by oath or affirmation, and shall be issued with the formalities prescribed by law, and the law prescribes in section ■ 830 of the General Statutes that a criminal proceeding before a trial justice “shall be commenced on information, under oath, plainly and substantially setting forth the offence charged, upon which, and only which, shall a warrant of arrest issue” ; and, so far as I am informed,- these are the only formalities prescribed by law for the issuing of warrants by a trial justice, for the purpose of commencing criminal proceedings. It is very manifest
But even granting that there was, that would not relieve the sheriff from the duty of executing them. It was no part of his office or duty to determine whether the warrants were regular or irregular. ' As is well said by Mr. Justice McGowan in Bragg v. Thompson (19 S. C., at page 576): “The sheriff is a ministerial officer. He is neither judge nor lawyer. It is not his duty to supervise and correct judicial proceedings ; but being an officer of court, ministerial in character, he cannot impugn its authority nor inquire into the regularity of its proceedings. His duty is to obey. This principle applies alike to him, whether the execution issues from a court of general or limited jurisdiction.”
The judgment of this court is, that the judgment of the Circuit Court be affirmed.
Dissenting Opinion
dissenting [omitting his statement of the case, which has been given supra~\. Costs are purely statutory. As a rule, no one can recover them unless he can lay his finger upon the law which authorizes it. This applies with special force where the parties concerned are unable to pay costs, or. have left the country, and it is sought to charge the State or the county with the costs. Section 172, General Statutes, provides as follows: “Fees for the actual collection of taxes only shall be allowed, and no costs or expenses shall be paid by the county or the State on any execution issued or hereafter to be issued, and returned nulla bona.” Afterwards, in 1884 (18 Stat., 736), the legislature passed an act, which declares “that in no case when there shall have been, or shall hereafter be, entry of judgment or issuing of execution in the Courts of General Sessions, by the clerk thereof, against defendants in said courts for fines, fees, or costs taxed and due upon the prosecution of said defendants, shall nulla bona costs be paid to the clerk or sheriff therein by the county commissioners or county treasurer, in which such judgments may have been or shall hereafter be entered,” &c. In 1887 (19 Stat., 882), the legislature passed another act in relation
It seems therefore clear that, up to this time (1887), the “warrant or execution” issued by the treasurer to collect taxes, including taxes of all kinds due by the defaulter, whether for land, personal property, or his poll. They were- all embraced in the same “execution,” and were collected at the same time and in the same manner. But in February, 1889, the comptroller general issued his circular, above cited, requiring the delinquent polls to be placed in the hands of a trial justice, to proceed against the defaulter as for a misdemeanor. Under this authority, and in conformity with the act upon the subject, the warrants were issued, which the sheriff returned “non est inventus and the question now is, whether the county is liable for the sheriff’s costs in making “searches” for the parties and returns that they could not be found.
It is urged that section 172 of the General Statutes (cited above), which disallows nulla bona costs in collecting taxes, was only intended to apply to “executions” for the recovery of taxes on property. If we assume that it refers expressly to “executions,” we do not think it follows that poll taxes were thereby excepted. On the contrary, at the time the act was passed, those “executions” referred to included and enforced payment of poll taxes, as well as of property taxes. No discrimination was made as to the poll tax element in them; and we are at a loss to find any authority for the view taken that the act was intended only t'o apply to a property tax.
It is, however, further contended that, by issuing warrants against parties charged with a simple poll, the proceeding was changed from one civil in character to a criminal proceeding, and therefore the county commissioners were hound to pay for the services rendered by the sheriff, as in other criminal eases, where costs are not collected from the defendants. The change made
Judgment affirmed.