Rogers v. Marlboro County

The opinion of the court was delivered by Mr. Justice McIver. ' It seems to me very clear that the warrants which constitute the basis of the plaintiff’s claim cannot properly be regarded as process for the collection of taxes, and hence section 172 of General Statutes has no application to the case. These warrants were not issued for the purpose of enforcing the payment of the poll taxes, but, on the contrary, for the purpose of punishing the delinquent taxpayer for failure to perform a high public duty — the performance of which is absolutely essential to the administration of the government. They constitute, therefore, both in form and essence, criminal process, and stand upon precisely the same footing as a warrant for assault and battery, or any other misdemeanor cognizable by a [558] trial justice. The express terms of the statute (1887, 19 Stat., 882-3) show this beyond all dispute : “Should any person fail or refuse to pay said poll tax, he shall be deemed guilty of a misdemeanor, and on conviction thereof before any trial justice or other court having jurisdiction of the same, shall be punished by a fine which shall not exceed ten dollars, together with the costs of said suit, or by imprisonment in the county jail for a term not exceeding thirty days.” This shows that the intent of the legislature was to make the failure or refusal to pay the poll tax, a criminal offence — a “misdemeanor” — and that the person convicted of such offence shall be “punished” by fine or imprisonment within the limits prescribed. How this can be regarded as a proceeding for the collection of a tax, I cannot conceive. The poll tax.is limited by the constitution (art. IX., sec. 2) to one dollar, and yet under this act the party convicted may be punished by a fine of ten dollars, or may be imprisoned for a term of thirty days; and it seems to me that it would be altogether anomalous — to use no stronger term — to suppose that the legislature provided for the collection of a tax of one dollar by the imposition of a fine of ten dollars or imprisonment for thirty days. It is said, however, that this was only a temporary provision, for a year only, found only in the act to raise supplies for the year specified therein. Granting this to be so, we do not see how it could possibly alter the character of the process by converting it from a criminal proceeding into a process for the collection of taxes. It may be possible, though we do not say that such would be the effect, that this act, expiring by its own limitation with the year for which it was enacted, would afford no sufficient basis for a prosecution after it had expired; but even if that were so, I do not see how it could affect the present inquiry. The fact that a prosecution may fail because the act under which it is instituted has expired or been repealed before the prosecution was commenced, certainly cannot affect the right of the sheriff to his costs. When a warrant is placed in his hands by proper authority, his duty is to execute it, or attempt to do so. It is no part of his duty to inquire whether the prosecution is well founded, either in law or fact, and it would be impertinent [559] in him to do so. But, in addition to this, I find that a similar provision to the one under which these warrants were issued has been incorporated in every tax act passed since 1877 to the present time, and therefore it is a mistake to speak of it as a mere temporary provision : but, on the contrary, it seems to be a part of the settled policy of the State to make the failure or refusal to pay the poll tax a misdemeanor, punishable as a criminal offence by fine or imprisonment. But it is contended that even if these warrants must be regarded as the commencement of criminal proceedings, and not as process for the collection of taxes, yet the sheriff would not be entitled to costs under the provisions of the act of 1884 (18 Stat., 736), which reads as follows : ‘ That in no case where there shall have been, or shall hereafter be, entry of judgment or issuing of execution in the Courts of General Sessions by the clerk thereof against defendants in said courts for fines, fees, or costs taxed and due upon the prosecution of said defendants, shall nulla bona costs be paid to the clerk or sheriff thereon by the county commissioners or county treasurers of the county in which such judgment may have been, or shall hereafter be, entered.” But this act can have no application to the present case for several reasons : 1st. By its express terms it applies only to cases in the “Courts of General Sessions,” and these cases did not originate there, nor were they ever carried into that court. 2d. The act applies only to cases in which judgments have been entered or executions have been issued, and in this case no judgments have been entered and no executions have been issued, nor could they have been. 3d. The act applies only to nulla bona costs, and the costs here claimed are not of that character. It may be that the reason of this provision was, that it was supposed that if the sheriff and clerk were deprived of the right to collect nulla bona costs from the county, they would thereby be stimulated to greater activity and more earnest efforts to make the defendants pay ; but this reason would have no application to a case like the present, for here no liability has yet been fixed upon the defendants — no judgments have been entered, and no executions have been issued, for the reason that they have not been brought before the [560] court, have not been made parties — because they could not be found. In order to apply the provisions- of the act of 1884 to the present case it would be necessary to strain its terms to such an extent as I do not think this court would be warranted in doing, especially when the effect would be to deprive a public officer of the costs fixed by law for performing services which he is required to render under heavy penalties.- But what is conclusive to my mind 'is, that the sheriff', under the express provisions of section 622 of the General Statutes, was entitled to demand from the county the payment of his costs in these cases, and this section is not repealed by the act of 1884, for there is no allusion to it whatever in that act, nor are its terms in any way inconsistent with the provisions of the act of 1884. Under this view of the case it becomes necessary to consider appellants’ third ground of appeal, which is in these words : “Because the warrants were irregular and illegally issued.” The only defect in the warrants, as we learn from the argument, is that both in the affidavit and the warrant the charge is that the defendant “did neglect to pay poll tax,” whereas it is contended that the charge should have been in the language of the act, that defendant did fail and refuse to pay, and that there is no statement, either in affidavit or warrant, that defendants were residents of the county, and, as such, liable to pay the poll tax. Now, even granting that such deficiencies in an indictment would be fatal on a motion in arrest of judgment, I have always understood that no deficiency in the form of the warrant by which a criminal prosecution is commenced, would have such effect. The constitution (art. I., sec. 22) simply provides that a warrant shall be supported by oath or affirmation, and shall be issued with the formalities prescribed by law, and the law prescribes in section ■ 830 of the General Statutes that a criminal proceeding before a trial justice “shall be commenced on information, under oath, plainly and substantially setting forth the offence charged, upon which, and only which, shall a warrant of arrest issue” ; and, so far as I am informed,- these are the only formalities prescribed by law for the issuing of warrants by a trial justice, for the purpose of commencing criminal proceedings. It is very manifest [561] that the offence charged in these cases was plainly and substantially set forth, both in the affidavits and the warrant. So that it does not seem to me that there was any defect in the warrants. But even granting that there was, that would not relieve the sheriff from the duty of executing them. It was no part of his office or duty to determine whether the warrants were regular or irregular. ' As is well said by Mr. Justice McGowan in Bragg v. Thompson (19 S. C., at page 576): “The sheriff is a ministerial officer. He is neither judge nor lawyer. It is not his duty to supervise and correct judicial proceedings ; but being an officer of court, ministerial in character, he cannot impugn its authority nor inquire into the regularity of its proceedings. His duty is to obey. This principle applies alike to him, whether the execution issues from a court of general or limited jurisdiction.” The judgment of this court is, that the judgment of the Circuit Court be affirmed. Mr. Chibe Justice Simpson concurred.