State ex rel. Askew v. Southern Steamship Co.

Merrick, C. J. This suit is brought to recover from the defendants $1,034 20, the amount of the State tax assessed upon $340,000, the amount of capital invested or employed by defendant in the year (1851)' in traffic, trade, merchandize or any kind of commerce. The defence to the action is a denial of authority of the Tax Collector to institute the suit; averments that interests in ships- are not subject to taxation ; that the statutes creating the mill tax are repealed by the Act of 1855, No. 346, and other statutes; that the stockholders of the company are assessed individually for the interests upon which the tax is claimed ; that the valuation is excessive ; that the company have existed as a company only, a small portion of the year, and that the assessors never applied for a list of property as required by sec. 34 of the Act of 1855, p. 510. It appears to us, that tho right to collect the taxes presupposes a right to stand in judgment in suits of injunction, and even to institute an action in the name of the State, wherever the taxes cannot otherwise be collected. It is true that the law has indicated a more summary proceeding than suit for the collection of tho taxes; still as the Sheriff is charged with their collection, for which he is com-polled to give bond, wo can see no sufficient reason why he should not be permitted to use the name of his principal in a direct action, instead of seizing property, if it is evident that the seizure will occasion an injunction, or other necessary delay. Acts 1855, secs. 54, 56. It does not lie in the mouth of a defendant to question the right to sue, when he admits tho propriety of the same by the issue he tenders, and a denial of the right of the State to recover. The Tax Collector ought, however, to treat tho assessment roll as a warrant authorizing him to levy upon property, unless there are grave obstacles in -the way of such proceeding. The interest of tho company in steamships seems to bo an object of taxation covered by the 5th clause of the 1st section of the Act of 1855. It names as subject to taxation, “ shares of stock or interest in steamboats, ships, brigs, schooners, and all other water crafts, whether at home or abroad.” As the company had property subject to taxation in the district of its domicil, some effort ought to have been made to correct the tax roll, if it were erroneous. The defendant has not, therefore, brought itself within the rule established in the cases of the City v. Lessees and the City v. Rousseau. 11 An. 251 and 195. [498] Tlie mill tax is given by tbe Act of 1855, and not by tbe Act of 1853, as supposed. It was approved the same day as the Act to provide a revenue. The mill tax is levied to provide means for the education of the white youth of the State. Acts 1855, p. 422, sec. 2. The tax to provide a revenue, is levied for the purpose of supporting the government, to pay the public debt and promote the public interests of the State. Ib. 502, sec. 1. It is difficult to perceive how one of these two acts can repeal the other. They are for different objects, and being passed at the same time, must both have effect, unless they are utterly repugnant to each other. The other grounds of objection are covered by the decision in the Lesseps case. 11 Ann. 251. ■ Judgment affirmed.