Ryan v. State

5 Neb. 276 | Neb. | 1877

Gantt, J.

It is alleged that the plaintiff in error assumed and usurped, and still doth usurp, intrude into, use and assume to exercise, hold and enjoy the office of delinquent tax collector, so called, in the county of Eichardson, without any warrant of authority or legal right whatever; and prays that he may answer by what authority he claims to have and hold, and assume to exercise and enjoy the said franchise and office.

In the answer, the plaintiff denies the material allegations in the information, and then substantially avers, that the office of delinquent tax collector was vacant, and that on the 6th day of April, 1876, the county commissioners of the said county appointed him to fill the said office, in accordance with the act of February 24th, 1875, and that he qualified and entered upon the discharge of the duties of the office, as he lawfully might and should do. A general demurrer was interposed to this answer, which was sustained by the court below; and the plaintiff in error making no further answer, judgment was rendered against him.

The six assignments of error all go to one point only, namely: that the court below erred in sustaining the demurrer, and in rendering judgment thereon in favor of defendant in error and against plaintiff in error.

The main question, however, is whether the act referred to, and under which the plaintiff claims his right to the office, is constitutionally a valid statute.

The act attempts to amend and remodel to a considerable extent, the general revenue laws contained in the revised statutes of 1873, without inserting in the new law the sections so amended and remodeled, and without making any particular reference to them. The constitutional provision requires all the parts of an amended law to be contained in the new act, and the old law so amended to be repealed. This constitutional provision, it seems, has been wholly disregarded in the new act referred to.

Again, the new act requires the county treasurer, in each county of the state, on the first day of May, 1875, about two months after its passage, to deliver to the delinquent tax collector the tax list of all taxes which shall have been delinquent for one year and over, and to do so each year thereafter; and it further provides: “That upon all taxes remaining delinquent for the space of one year, a penalty of ten per cent shall attach, which shall be collected by such delinquent tax collector as a fart of the taxP This penalty, by the express provision of the statute, becomes an inseparable portion or part of the taxes, wrhich were delinquent at the time the act was passed; and in the collection of them, it cannot be separated, from them in violation of the law. Now, it is said, that “ penalties may be prescribed for future delinquencies in the payment of taxes, as part of the machinery by which government is enabled to collect them; ” but such penalty is not taxation, and cannot be sustained as a tax or any part of the revenues raised by taxation. If, then, such penalty can be enforced, it must be imposed simply as a method or machinery by which the government is enabled to collect future delinquencies in the payment of taxes, and cannot be applied to or enforced in the collection of taxes previously levied or delinquent; for, in such case, the law would be retroactive in its operation, and cannot be sustained; and, therefore, to enforce the collection of the penalty would be confiscation, and not taxation. It is said, that the “legislature can exercise no such function without conflicting with that clause of the constitution which is intended to guard private rights against oppression;” and, that “even in the absence of any fundamental guarantee, such a use of legislative authority would be considered as contrary to the great first principles of the social compact. It is opposed to all reason and justice, and the very nature and spirit of our form of government forbid us to believe ■ that the people intended to entrust the legislature with any such power.” “ There would be no limitation of the time for which such laws might be made to retroaet, or the sum which might be exacted under them, save only the will of the law-maker and the public exigency. Despotism itself could not employ a more arbitrary means of extortion.” State v. Mayor, etc., of Jersey City, 8 Vroom, 43.

But, again, the act approved February 24,1875, providing for the appointment of a delinquent tax collector is, certainly, a novel specimen of legislation. After defining the powers and duties of such delinquent tax collector, the last section of the act provides that: “This act shall not in anyway affect sections forty-nine and fifty,” of the general revenue laws as found in the revised statutes of 1873. Is not this, in effect, a re-enactment of the sections referred to, and, therefore, directly and wholly inconsistent with all those sections or portions of the act which precede it?

This seems to be a fatal objection to the new law; for, by section forty-nine of the general revenue laws, it is provided that: “No demand of taxes shall be necessary, but it shall be the duty of every person subject to taxation, under the laws of this state, to attend at the treasurer's office, at the county seat, and pay his taxes, and if any person neglect so to attend and pay his personalty taxes, until after the first day of May next succeeding the levy of the tax, the treasurer is directed to levy and collect the same, together with the costs of collection, by distress and sale of personal property belonging to such person, in the manner provided by law for the levy and sale of property on execution, and the treasurer shall be entitled to the same fees for services as are allowed by law to sheriffs for selling property under execution: Provided, That in case any person having personal property assessed, and upon which the taxes are unpaid, shall in the opinion of the treasurer, be about to move out of the county, or in any other manner seek to put his personal property out of the reach of the treasurer, it shall be the duty of the treasurer to collect such taxes, at ajny time after the tax duplicate has been placed in his hands.” Section fifty directs, that in the collection of delinquent taxes upon real estate “the remedy to be pursued shall be the same as is provided in sections forty-nine and fifty-two.” Section fifty-two provides the manner of procedure in the sale of personal property levied on as aforesaid for the payment of taxes.

The re-enactment, in effect, of the above parts of the general revenue laws, by the last section of the act of February 24,1875, certainly invests the county treasurer with the office of collecting delinquent taxes, and confers on him all the powers and duties of such office. Hence, upon what principle of law can the plaintiff in error take from him the tax duplicates, or lists of taxes which have become delinquent, and assume to exercise and discharge the duties which the law expressly requires to be performed by the county treasurer? ¥e think the well settled rule of construction of statutes applies to this new act with great force, and that the last section must prevail; and hence, all that portion of the act which precedes it, being inconsistent with the provisions of the sections re-enacted must be held as inoperative, and of no effect.

Both the old and new law cannot stand together; under the old law above quoted, the power and duties o.f the county treasurer are absolute and not divisible; the re-enactment of these provisions by the last section of the new statute, restores to and vests the county treasurer with all the powers and duties of the office of tax collector, and, therefore, the act of February 24, 1875 is rendered simply ineffective.

Judgment affirmed.