The law be re 1871. January Term. Com'alth V. of getting out of jail when once put into it. provides two modes by which such a party may lieved. One is by paying what is due; and the other is by giving bond and security to satisfy the judgment of the court. That any man shall apply for a license Byrne. to carry on a business, who is unable to pay the tax, is scarcely to be contemplated by the law, and would of itself indicate a fraudulent purpose. But in the few exceptional cases that can occur where a man cannot pay, the remedy may operate harshly, but it cannot be held for that reason to be unconstitutional, unless the court is prepared to hold that our system of legislation for the recovery of debts, commencing from the early days of our colonial existence and coming down almost to the present time, and recognized and enforced by the courts during all that period, was unconstitutional. Down to 1850, the plaintiff, in an action of debt on a bond or note, by endorsing on the writ that bail was required, subjected the defendant to be taken into custody or to give bail for his appearance; and that in the absence of any evidence that the debt was due. And on a judgment in any case for debt or damages, the plaintiff might sue out an execution against the body of the debtor, have him taken into custody, from which he could only deliver himself by paying the debt or taking the oath of an insolvent debtor; and this last mode of relief did not exist for some time; and was then introduced by statute. This was allowed in the case of individual creditors and debtors; and surely that which was allowed in such cases, cannot be successfully impeached as unconstitutional in the case of the Commonwealth seeking to enforce the payment of taxes due to it. It is insisted further for this party, that Eacho was not legally appointed an assistant commissioner of the revenue; and if he was, that his certificate is null 187.1 January ¡Com'alth V. because he acts in his own name and does not sign the name of his principal. The act says a commissioner, unable from sickness or other cause, to perform the duties of his office, may, Byrne. at his own expense, with the consent of the County or Corporation court, employ a person (approved by the court) to assist him. Such assistant, after taking the proper oaths, may discharge any of the duties of the commissioner, &c. Act of March 2, 1867, ch. 298, § 7, p. 728. The commissioner may not have been sick, but he may have been unable, from some other cause, to perform the duties of his office. The cause was to be considered and adjudged by the court, and the person appointed was to be approved by the court. It is not denied that the court acted in this case and approved the person appointed; and the court being a court of general jurisdiction, its action cannot be questioned in this collateral proceeding. Ballard & als. v. Thomas & Ammon, 19 Gratt. 14; Devaughn v. Devaughn, Id. 556. The act provides that the assistant may discharge all the duties of the commissioner, and it does not require, as is done by statute in the case of sheriffs, that the assistant shall sign the name of his principal. Then what is to be gained in requiring the assistant to sign the name of his principal, as well as his own. Wells and Young, for the appellee. 1st. We insist that there was no error in the proceedings below. The arrest was illegal and in violation of the constitution of the United States and the constitution of this Commonwealth. The 5th article of the amendment to the constitution of the United States, and section 10 of the Virginia Bill of Rights, are relied upon. The for mer provides that no person shall be deprived of "life, 1871. January liberty or property without due process of law." The Term. latter, that "no man may be deprived of his liberty except by the law of the land or the judgment of his Com'alth peers." The words "due process of law," as used in the constitution, are equivalent to the phrase "the law of the land." Story on Cons., sec. 789; Sedgwick on Stat. & Const. Law, p. 610. The words "the law of the land" mean due process of law, which includes the right to contest the charge and to be discharged unless it is proven. Greene v. Briggs, 1 Curtiss C. C. R. 311. By "the law of the land" is meant the general law which hears before it condemns, proceeds upon inquiry, and renders judgment only after trial. The meaning is, every citizen shall hold his life and liberty under the protection of general laws; and the words by "the law of the land" do not mean a statute passed for the purpose of working the wrong. Sedgwick on Stat. and Const. Law, p. 537, note on foot of p. 539. Taylor v. Porter, 4 Hill's R. 140; Wynehamer v. People, 3 Kern. R. 378; 2d Kent Com. 600; Hoke v. Henderson, 4 Dev. R. 1, 15; Fetter v. Wilt, 46 Penn. R. 457; Griffin v. Mixon, 38 Miss. R. 424; Exparte Grace, 12 Iowa R. 208; Kinney v. Beverley, 2 Hen. & Mun. 318; Ervine's Appeal, 16 Penn. R. 256; Blackwell on Tax Titles, p. 18 to 25 inclusive. It is clear that Byrne was arrested, deprived of his liberty, and imprisoned without due process of law, without the judgment of his peers or a trial by jury, and has had no opportunity in court to defend himself, or of contesting the legality of the charge against him, and cannot have without the payment of, or giving a bond for the payment of, the claim. The objection is not in anywise removed by the provisions of the section which authorize a party in arrest to give bond, for the condition of the bond is, that he V. Byrne. Term. 1871. is to appear and answer to an action of debt, to an inJanuary dictment or information, and to satisfy not only the fine imposed, but to pay the tax assessed. The defendant is Com'alth clearly deprived of the right of trial by jury, because Byrne. he is to remain in confinement until the tax is paid. V. In Greene v. Briggs, 1 Curtiss R. 325, before referred to, the court, considering this very question, says, “to require security for the payment of the penalty and costs as a condition of having a trial, is not only essentially unjust, but in conflict with that clause of the constitution which secures the accused from being deprived of his life, liberty or property, unless by the judgment of his peers. We therefore say that the law is uncon stitutional and void." 2d. The imprisonment is attempted to be justified under the power which the State confessedly has to enforce the payment of taxes. It is conceded that the power to levy tax belongs to the Legislature. The collection of the tax involves the exercise of judicial and executive functions. The proceedings are summary, founded upon a public necessity; but that necessity begets another necessity, to wit: that, in the execution. of such a power, the law shall be strictly and completely complied with in all its requirements. The courts will never permit a penalty, imprisonment or double tax, to be enforced in a summary manner, under the vague and indefinite name of taxation. Griffin v. Mixon, 38 Miss. R. 424, cited in Blackwell on Tax Titles, p. 29–30; Allen v. Smith, 1 Leigh 254. Where special authority is conferred upon an inferior tribunal, or upon commissioners, or upon an individual who acts quo ad hoc in a judicial capacity, the authority must be strictly pursued, and appear upon its face to have been so pursued. Or, as it was stated by Marshall, Chief Justice, in Thatcher v. Powell, 6 Wheat U. S. R. 119, “In summary proceedings, where extraordinary powers are exercised under special statutes, the course marked out by the statute should be exactly pursued." Where a right is claimed under the proceedings of one who purports to have acted in an official capacity, the fact that he was such officer, and that the acts were performed by an officer of the law, and not simply by one who assumed to act as such, must affirmatively appear. Blackwell on T. T., p. 91. In Pike v. Hanson & als., 9 N. Hamp. R. 491, it appeared that the assessor had not taken the oath. It was held that the collector could not justify because the statute had not been complied with. In Ainsworth v. Deane, 1 Foster R. 400, a sale of land was held void. because there was no evidence that the assessment was made under the sanction of an oath. In Burch v. Fisher, 13 Sergt. & Rawle R. 208, the evidence showed that the persons who made the assessments were recognized as officers by the county commissioners, and acted as such. The sale was held void. The court say, "Can it be pretended that such an assessment will be valid." In Payson v. Hall, 30 Maine R. 319, it was held not to be sufficient to show that the person making the sale had been chosen as collector and acted in that capacity. The principle upon which all of these cases rest is, that the act of the assessor is a judicial act and cannot be performed without a strict compliance with the provisions of law; that no presumptions or intendments are to be made in favor of the regularity of such acts, even in controversies involving merely questions of property, while it is even more strongly enforced where personal liberty is involved. Apply, then, these rules to this case: The statute authorizes the commissioner of the revenue to assess the tax and to deliver the list to the sheriff. From the two lists in the record it appears that the act was not done by a commissioner, but by an assistant commissioner, a person or officer not known to the law. It does not 1871. January Com'alth V. Byrne. |