Smith v. Goldsmith
63 Ga. 736
Ga.
1879
Check Treatment
Bleckley, Justice.

This case presents a question of law and a question of fact. The former can be entertained by the courts, but the latter is exclusively for the revenue department of the government.

1. The question of law is, could the comptroller-general issue the fi.fa. f There is a specific tax laid by the act of 1878 upon each dealer in sewing machines, and payment of the tax is to be made to the comptroller-general. Nothing is said of a return', or of the mode of compelling payment. We think an act so meagre in its provisions is to be interpreted in the light uf the general tax system of the state as shaped by the Code. That system contemplates that all persons subject to the payment of any tax whatever shall make a return to some officer. In each county there is a tax collector, and if payment is to be made to one of these, the return is to be made to the tax receiver of the same county. But with certain taxes, such as those upon railroads, etc., the collectors and receivers have nothing to do. These taxes are collected on returns made to the comptroller-general ; and section 876 of the Code provides that “ if any corporation, company, person, agency, or institution, who are required to make their returns to the comptroller-general, shall fail to return the taxable property or specifics, or pay annually the taxes for which they are liable to the state treasurer, the comptroller-general shall issue against them an execution for the amount of taxes due, according to law, togethel with the costs and penalties.” When a law is passed which inadvertently omits the mention of a return, *739but requires payment to be made to the comptroller-general, it means by implication that the return is to be made to that officer. In this case, neither return nor payment was made; so section 876 of the Code applies, and the execution was properly issued by the comptroller-general. Certainly there was no other officer that could issue it, and it is contrary to all precedent or analogy for the state to bring suit for taxes.

2. The question of fact is, what was the vocation of the complainants? Whether they were dealers in sewing machines, selling machines by themselves or their agents, or whether they were regular merchants, or others, who bought and sold sewing machines as other merchandise, seems to us not dependent upon the construction of any law, but to be purely a matter of fact. This question the comptroller-general must have decided before he issued his execution. In taxing the complainants as dealers, he classed them as such outside of the proviso of the act, and not within the proviso. It was his function, and not that of any judicial tribunal, to ascertain and settle the facts on which their proper classification depended. There is no statute, or public record, or official document, to which reference can be made, either to verify his accuracy or to disprove it. IJpon the face of his execution, we have only the result, only the conclusion at which his mind arrived, and none of the particulars on which he founded it. We have, so to speak, a general verdict of the proper tax juror, and not a special verdict. If there was no law taxing dealers in sewing machines, the execution would be illegal. But there is such a law, and the amount assessed by the comptroller is not in excess of its provisions; how then can a court interfere with the collection of the tax 'without a direct infringement of the statute which forbids judicial interference ? As to the consent of counsel in this court that the inhibition of the statute might be disregarded in the present case, we can take no license from that. The restriction is put upon courts for the public good, and neither the par*740ties nor their counsel can take it off. 59 Ga., 811. After the proper tax officer has issued an execution in behalf of the public, he cannot vary its effect or impair its efficiency by admissions and consents. Perhaps he can withdraw and cancel it, or, it may be, modify or correct it; but no admission he makes can destroy or weaken it, .so long as it is legally outstanding and in process of enforcement. As a part of this opinion, read the second head-note; and see 59 Ga., 805.

Judgment affirmed.