43 Ga. 538 | Ga. | 1871
Lead Opinion
The plaintiff brought his action against William H. Whitehead, in Baker Superior Court. When the case came on for trial, the Court dismissed the action, upon motion, upon the ground that the plaintiff had not filed his affidavit in relation to the payment of taxes, under the second section of the Act of October 13th, 1870, and granted an order dismissing said action, which is excepted to and forms the ground of objection in this case. It is contended that the Act in question is unconstitutional, upon the various grounds which have been argued and reargued before this Court,
By reference to the Constitution of Georgia, the power of taxation is declared to exist over the whole State, and shall
Does the Act in question fall within this Constitutional inhibition. The preamble to the Act declares its purpose to be “an Act to extend the lien of set-off and recoupment as against debts contracted before the first day of June, 1865, and to deny to such debts the aid of the Courts until the taxes thereon have been paid.” Thus it will be seen that the declared purpose of the Act is not to interfere with the contract, whatever it may be, or to impair its obligation, but is simply, in effect, to compel parties to pay their legal taxes chargeable by law or declare the same have been paid, before the Courts of Georgia will give the benefit of its processes and powers and the use of its legal officers to enforce the contract or obligation. But it may be said that this law is cunningly devised to accomplish a different result from that which the Legislature have declared; because the right of a State Court to dismiss suits when the legal taxes have not been paid, as an original proposition will scarcely be questioned. The United States has devised, in its wisdom, a
As to what should be to the welfare of the State, they are the exclusive judges. Nor is this a new power found in the constitutional charter of 1868, but is found in her other Constitutions, and belongs to a series of legislative Acts, commencing with the great revolution through which she passed, and exhibiting in each successive legislation a design to protect the people in the little that had been left from the ravages of war, and equalize the disasters which fell so thick and heavy, after the storm had subsided. In its inception it was a question of proper and legitimate public policy for the Legislature to look over the wreck and ruin, the disasters
Who is prepared to deny that the Legislature may not, at its discretion, alter and amend old rules of evidence and establish new? Who, that it may not obliterate all distinctions which now characterize modes of procedure in Courts of law and Courts of equity, and to command, if they so enact, that the broad and liberal principles upon w'hich justice is administered, on the equity side of our Superior Courts, shall apply to and control the verdicts of the juries on its law side?” And we may add, who is prepared to deny that the Legislature of the State of Georgia, within its legitimate power, may not demand the payment of legal taxes due to it, before its Courts shall be used for the enforce
This series of legislative enactments have, from the commencement, no where purported to impair the obligation of contracts, but simply to add new rules of evidence by which the new defenses, growing out of the war and its concomitants, might be pleaded and established by proof. The condition in which the State was plunged after the war, invoked the same legislation for the public welfare which was so universally conceded to exist during the war. Every species of tangible property had mingled with the general ruin. Slavery, the basis of nearly all credits, had been extinguished. Millions of dollars worth of other property had been destroyed. The production of cotton had been prohibited by law; the barns and smokehouses were made contributory to the Confederate commissary, and what was left from failure of transportation was consumed by exiles from the borders. The currency of the United States was prohibited circulation, and nothing was left untouched save the evidences of debt, which had been regarded worthless while the storm was raging, but came to life with the restoration of peace, and which, by legal enforcement, would have left the State a republic of paupers. We think that the legislation was not only proper, but demanded by the public welfare, and exhibited the wisdom of the Legislature, and should be sustained by the Court in all its efforts, in the granting of remedies to protect the people from overwhelming ruin. And, except constrained by the most imperative duty to restrict its exercise by the constitutional prohibition of the United States referred to, it should be, on grounds of constitutional right and policy, sustained. And in the case
These defaulting taxes ought to have been paid to the Comptroller General, and the party should have made affidavit as prescribed by the statute, and upon his failure to do so and filing an affidavit to that effect, in terms of the Act, it was the duty of the Court to have dismissed his case.
Nothing can be clearer than the fact recognized by the Legislature, that the contract subsisting between the parties shall remain untouched. There is not a word of the Act impairing the contract, nor is the remedy provided by law for its enforcement denied. Both the obligation and the remedy are distinctly left as they existed, nor is any unreasonable burden imposed upon the party. The duty to pay tax is one of the higest duties of citizenship known to the law. Taxes are necessary to the administration of the Government, and when any class of men evade their payment, the act is not only disloyal, but imposes on others a higher taxation than is their just share of obligation to the Government. We do not see why any plaintiff or owner of a note should complain of the requisition upon him for the legal taxes due and chargeable thereon. If he has paid it, then he is entitled to his contract’ and the remedy of its enforcement. But if he has 2iot why should the State open its Courts to one who has confessedly failed to pay his legal taxes? It has the sovereign right to prevent his voting until he pays his tax. Cannot the same power prevent the use of its Courts? But it is said it is ex post facto. By reference to the law we find
Upon consideration, we hold that the State of Georgia has the constitutional right to close her Courts against those who have failed to pay their legal taxes to the State upon such property or contracts which she may prescribe, and upon which taxes have been imposed, and prescribe the mode by which such fact may be attested.
And for these reasons, we affirm the judgment of the Court below.
Concurrence Opinion
concurring.
1. The objections made to this statute seem to me to be based upon an entire misconception of its meaning. It is assumed that the Act imposes upon the creditor some new duty, inconsistent with the terms of his contract and not required of him at its date, or that it puts upon him a new penalty for a past failure of duty. It is argued that the former imposition impairs the obligation of the contract, and that the latter', imposing a new penalty for a past failure of duty, is an ex post facto law.
But this is a perversion of the meaning of the Act. No new tax is laid, no new obligation is imposed. The taxes required to be paid are the legal taxes already incurred, under the ordinary and usual revenue laws of the State, which have been of force long prior to the date of the contract. The only new duty imposed is the duty of showing that these taxes have been paid, of making an affidavit and filing it, that this public duty has been performed. Is this such a new imposition as impairs the obligation of the contract? I think not. It is admitted, in all the decisions upon this clause of the Constitution, that the States still retain their powers over the remedies they furnish for the enforcement of contracts. They may not, it is true, use this power so as to
If it so happen that the party required to perform them fail, and an advantage thereby comes to his adversary, that is no fault of the law, but the fault of the party who has failed in the performance of his duty. Such results often happen in the course of judicial proceedings. Pleas of usury, gambling pleas and pleas setting up that contracts are illegal, as contrary to law, are allowed, not for the benefit of the defendant. Indeed, it often happens that the Court which
Nor is there anything in the objection that this Act only applies to a certain class of tax-payers, and to certain specified debts. We have special laws about agents, bailees, trustees, debts over six years old, debts by fraud, debts in writing, and different regulations as to each. Special evils require special laws. It is notorious that, though our laws have long assessed a tax on debts, notes, etc., the tax has been evaded. The property is easily hid; the tax receiver has no means of unearthing it; and by the management of the holder of the debt, it escapes the public burders. The amount of debts given in last year was only $26,000,000 00, against over $100,000,000 00 in 1860. It is, besides, well known — and this was a motive for the Act we are discussing —that debts contracted before the 1st of June, 1865, were specially kept back from the tax book. Is the Legislature confined to but one mode of getting at the taxable property of the country ? If men possess a species of property easily concealed, and hide it in their safes, so that the public officers cannot assess it, can it be complained that the Legislature, knowing that this property must come to light when the Courts are asked to enforce it, shall provide that, before this will be done, evidence shall be afforded that the tax has been paid? Nor is this affidavit burdensome and unconstitutional
2. Nor does this Act impose any penalty for past acts. The takes it requires to be paid are now due. That they were due five, four, three and two years ago, and have gone unpaid, is no relaxation of the obligation to pay them. Can it be contended that, because one in 1866 or 1868 managed to conceal his taxable property, he is thereby released from his obligation to pay the tax thereon when he finds it no longer possible to hide it, because it has become necessary to ask the public to aid him in a certain use he proposes to make of it ? I think not. The tax required by law to be paid in 1865, 1866, 1867, etc., if it was not paid when it was required, is still due, and it is perfectly competent for the Legislature to take any legitimate mode to enforce the payment. It would be a strange thing if the public can take no other methods of collecting debts due it, except such as existed at the time the debts were incurred. Nothing is better settled than that the Legislature may give, even to a private individual, a better remedy for his debt than was in existence at the date of the debt. And should the public be held to be confined in its remedies to such only as existed when the debts accrued ?
As I have said, these taxes are just as much due now as they were in the year they were incurred. They are a present, subsisting, legal obligation and if the remedies provided
Any one may escape the penalties of this law by paying the tax aud making the affidavit as required by the statute, except that if he has allowed the six months to slip with this duty, still unperformed, his pending suit must go by the board.
For myself, I think this is a wise law, and that it ought to be made general as to all debts. I am inclined to think it is almost the only way by which to bring this class of men up to the full performance of their public duty. Why should they not pay to the public this legal subsisting, reasonable claim upon them? Why should they not make the affidavit
Dissenting Opinion
dissenting.
This was an action brought by the plaintiff against the defendant, on a promissory note, dated 28th of March, 1864, on which there is due the sum of $4,658 24, besides interest. When the case was called on the docket in the Court below, the defendant’s counsel made a motion to dismiss it, on the ground that the plaintiff had not filed an affidavit that all legal taxes chargeable by law had been duly paid on said debt, in accordance with the provisions of an Act of the General Assembly, passed on the 13th of October, 1870, deny
