Cowles v. Brittain, 9 N.C. 204, 2 Hawks 204 (1822)

Dec. 1822 · Supreme Court of North Carolina

9 N.C. 204, 2 Hawks 204

Cowles v. Brittain.

From Burke.

The Sheriff may proceed on Sunday by distress to enforce the penalty authorised by a revenue act of the Legislature for pedling u uhout license. The revenue law is not liable to the constitutional objection of depriving- the party of the right of trial by jury : nor does it violate the spirit of that clause of the Federal Constitution which prohibits the States from laying any imposts or duties on impntb; and exports.

Trespass. The Plaintiff in the year 1810, appeared at the town of Morganton, in the county of Burke, in the capacity of a pedlar, and as such, for the span, of one week, exposed to sale and did sell goods and wares uot of the growth or manufacture of this State. The Plaintiff was the owner of two waggons employed in the transportation of these goods, one of which was under his own immediate direction, and the other in charge of one Kelly, the agent of the Plaintiff, who also, at the ,ame lime and placa with Plaintiff, offered for sale and diü cMl a part of the contenís of Ms waggon. The Defendant» who was at that time Sheriff oí the county of Burke, demanded of the tas. of ien dollars on eadí of the said waggons, offering Plaintiff a receipt, and written. lb-eases to peddle and hawk goods. The Plaintiff re! used to pay any tax on the waggon and goods in thrt pousi-fislon of Kelly, and offered’ to jtay the tax on the property in his own possession, provided the Sheriff woirnl furnish him with a 'printed limase — this the Sheriff was unable to do, and Plaintiff refused to pay the tax. The Piainti.fi" continued to sell the goods until the Sheriff demanded and receives! from him ihe sum of & 100, inflicted an a penalty by the revenise act of 1318. Ifeliy had left .Mcrgantoii with ik; waggon and goods in his care pm ¡oes to Ihe payment by Plaintiff of this penally, and on Sunday, when Plaintiff was about to leave the place, Ihe.■Sheriff demanded from him the further sum of SI00. as a penalty for the sales undo without license by 7<\il;¡, th:- a»ei»t of the Plain tiff. This earn Plaintiff refused <> pay, whereupon Ihe Defendant took into his posnesbUxi certain of the Plaintiff’s goods, sufficient to raise the amount of ihe penally. This action of Iresposs was thou brought, and onthe trial below the Judge instructs-d the Jury, that on the subject of levying' and collecting laves, the will of ihe Legislature constitutionally expressed was Use law of tSie land, and therefore the revenue act w as not unconstitutional as related to the said penalty and the collection- thereof; that the ibiiiu-o of the Sheriff to be, prepared io «'¡diver to the Plaintiff a •piinkd liceuse did not auth-me «i«e 'Naintiff to peddle and sell his g»;oíl¡:, but might possibly have given khn a remedy of a different nature $ and that: if he had soltl his goods as alleged by the Defendant without having; paid the taxes and obtained printed licenses, he had incurred .the penalties j and also that the Beixure mt tiorsiKy morn ■ lug- was legal, and the Sheriff no! nubjecied th<uvby. The Jury returned a verdict for the Defendant, and Tplaintiff obtained a rale to shew cause, why a new trial should not be granted. Upon cause shewn, the rule was discharged and judgment rendered pursuant to the ver-diet, whereupon 1'huntifl' appealed.

The cause was a.«gued at a former term, by .5. Henderson for the rpodtont, and at this term by. Seawell and. Wilson for the appellee. The Reporter did not hear the argument of appellant’s counsel, but was informed that the points taken were these.

That it was r.ot lawful for the sheriff to execute any writ or other process on Sunday. Act of 1777, ch. 8, sec. 6.

That distress resembled the Common Law process of execution, by seising and selling the goods of the debtor under a writ of Jl. fa. (S Mack. Com. 7, 279,) and that distress for the purpose of sale, resembles an execution more than a distress at Common Law. Hutchings v. Chambers and gi tiers — (l Burr. 587, 588.)

That the act imposing this penalty, permits it to be recovered without process, and so violates the Constitution, which declares that no freeman shall be deprived of his property but by the law of the land and the judgment of his peers.

Seawell and Wilson, in support of the general opinion as to the constitutionality of such a law, referred to similar acts passed by several States of the Union ; and to s'new that it did not violate the Federal Constitution, to the Federalist, 2d Yol. of Hamilton’s Works, page 357. They further insisted on the right of the State to raise a revenue, and that the law in question operated alike on the citizens of this State, and those coming from other States.

Taylor, Chief-Justice.

The distress to enforce the penalty authorised by the revenue act of 1818, does not come within the meaning of the terms “ writ or other ’'•'process,” which arc forbidden by the act of 1777, ch. 18, to bo executed on a Sunday. • The prohibition is confined to such original or judicial process, as mayas well be executed on any other day $ but it results from the nature of this proceeding that it may be executed on any day ; for as the persons, on whom -he law is meant to operate, are changing, from day to day, the scene of their traffic, the penalty might frequently be- evaded, by neglecting to take out a license during the week, and removing to another County on Sunday, The objection to paying the tax for want of a printed license, is repelled by the positive terms of the act, which make paying the tax and obtaining a license, a condition precedent to the rigid; of periling. The penalty is ¡corred by selling without a license, from whatever cause it may have proceeded that the, seller did not procure one. Nor is the. act imposing the penalty liable te the constitutional objection of depriving the party of To right of trial by Jury. The mode of levying, vc'i as tbs; right of imposing taxes, is completely;'-.,. c.’;clumvely within the, legislative, power, which, it is to be presumed, will always be exercised with an equal regard to the security of the publick, and individual rights and convenience. The existence of government, depending on the prompt and regnlar collection of the revenue, must, as sin object of primary importance,, bo insured in such a way as the. wisrlv.rn of the Legislature may prescribe. There is a tacit condition annexed to the ownership of property, that it shall contribute to the publick revenue in such mode and proportion as the legislative will shall direct and if the officers intrusted with the execution of the laws transcend their powers to the injury of an individual, the Common Law entitles him to míreos. Bet t© pursue every delinquent liable to pay taxes, through the forms of process and a Jury trial, would materially impede, if not wholly obstruct, the collection of the revenue 5 and it is not believed «hat snob a mode was contemplated by the Constitution.

The Court has thought if. necessary to consider whether this tax might, not. violate the spirit of the 10th section of the 2d article, of the Constitution of the United States, prohibits t.:e States from laying any imposts or duties on imports and exports, without the consent of Congress. But upon rejection, this tax does not ceem to come within the .'leaning of that part of the Con citation. It is certainly not a duty upon thé aríicUs imported, for they would have avoided the tax, but for being vended in a particular manner. It ir. more properly a tax upon the casing or employment, which is a subject of internal police, which the Legislature has a light to regulate. It is true, that foreign merchandise which has once paid an import duty to the United States, may thus be .incidentally subjected to an additional tax: but the same objection might be made to the tax on retail «.ores, licenses to taverns and auctioneers, where foreign articles are vended. It has never been doubted, that the •States retain a complete power to raise their own revenue from every source that has not been surrendered to the United States and prohibited to the States, and tiie duties on imports and exports are alone of that description. The. judgment of the Superior Court appears to he correct throughout, and must be affirmed.

By the Court. — Judgment affirmed.