60 N.C. 617 | N.C. | 1864
The Court has had great difficulty on the question of jurisdiction. In this State the courts of law and the courts of equity are held by the same persons, and there is a strong tendency to disregard the distinction between questions of law and equity, and to allow the jurisdiction of the courts to run into each other and become confounded; that is especially so when, as in this case, both parties wish to get a speedy adjudication, and the defendants waive all objections so as to put on the court the duty of raising the question as to jurisdiction and the burthen of deciding it, without the aid of an argument on both sides.Manly v. Raleigh,
1. An injunction against tax collectors, the effect of which is to stop all collections, might seriously obstruct the operations of the Government — a consequence in comparison with which the notion of preventing *407 a multiplicity of suits sinks into insignificance, and which consequence is avoided when the taxes are paid to the collectors under protest, and he pays them over to the Government, taking its indemnity in respect to such actions as may be brought against him.
2. Equity acts in personam, and enforces its orders and decrees by process of contempt. When one having judgment at law is about to use it against conscience, a bill is not entertained against the court of law or the sheriff, but against the party to the action; an injunction goes against him and he is put in contempt for disobeying it. A bill cannot be entertained against the Government, and it would seem it ought not to be entertained against the officer of the Government; for, should he be enjoined, he cannot be put into contempt, for he cannot obey the order of the court unless he violates his sworn duty and is guilty of direct disobedience to the orders of the Government of which he is (621) an officer.
3. A court of equity has no machinery and no officers by which it can enforce its orders against an officer of the Government. For illustration: Suppose a bill to be entertained against a sheriff, and he is enjoined from the collection of taxes, the copy, subpoena and fiat are handed to him (say by the clerk); he disobeys the order. What officer has the court by whom the sheriff can be taken into custody and brought before it for the alleged contempt? Who is to call out the posse comitatus? I will pursue the subject no further.
On the question presented by the bill we have had but little difficulty. By the proper construction of section 4 of the act of May, 1864, the taxes which may be imposed upon all persons whose ordinary avocations are pursued within the corporate limits of the town, although resident beyond the corporate limits, are restricted to property owned by them in the town, and to their persons, and subjects incident to their persons. The only question made is in regard to the latter, when one has a business residence in town, which is the meaning of the description, "persons whose ordinary avocations are pursued within the corporate limits." The money he has on hand, the salary which he earns there, the income which he receives there, whether it be interest on bonds, the debtors residing elsewhere, or dividends on stock in a factory situate out of town, or in a steamboat company, are subjects incident to his person; and in respect to the particulars enumerated by the three gentlemen who filed this bill, we do not see that the commissioners have exceeded the power given them by the act. We understand the "riding vehicle" to mean the buggy used to come into town every morning and go out every night, and consider it adjunct to their town residence, and incident to its enjoyment. In respect to the other gentlemen in behalf of whom the bill *408 (622) is filed, the allegations are not sufficiently distinct to enable us to express an opinion. The question, then, is narrowed to this: Had the Legislature power to authorize the mayor and commissioners to impose such a tax on persons who transact their business and live in town during the day and live in the country during the night?
It was earnestly contended by Mr. Moore that the Legislature has no power to authorize the imposition of such a tax upon strangers who may occasionally visit the town. That question is not presented by the case; for although the act refers to these gentlemen as persons resident beyond the corporate limits, in contradistinction to persons resident within the corporate limits, it also refers to them as persons whose ordinaryavocations are pursued within the corporate limits, and the facts being stated at large, the question of residence is left open to be governed by the application of principles of law whereby these gentlemen are put on very different footing from mere strangers. They have two residences, a business residence in town and a domestic residence in its vicinity, and may be called amphibious citizens, who enjoy the conveniences and comforts of their double residence. They have the benefit of a town residence for the transaction of business, the advantage of town society for themselves and families, of attending church, sending their children to school, etc., and the benefit of a country residence for cheapness, healthfulness, and the pleasure of country life. They live in town nearly if not quite half of the twenty-four hours of every day in the year, and must be considered in part residents of the town. Taking that to be so, there can be no reason on general principles why they should not contribute to the expenses of the town, excluding their country residence and property out of town (which pay no town tax), on the same ground that (623) every man contributes to the expenses of the community in which he lives. The provision which confers on these amphibious citizens the right to vote at municipal elections meets the objection which might otherwise have been made on the footing of the time-honored maxim, "representation and taxation should go together."
Manly v. Raleigh,
The bill is dismissed.
Cited: Huggins v. Hinson,
(624)