
    *Commonwealth v. Byrne.
    January Term, 1871,
    Richmond.
    Joynes, J., absent, sick.
    1. Assessment of Taxes — Statutes — Constitutional.— The section 63 of ch. 57, in relation to the assessment of taxes on licenses, Sess. Acts 1866-67, p. 849, is not in conflict with the constitution of Virginia.
    2. Constitution of United States — Fifth Amendment— To What Applicable. — Article 5 of the amendments of the constitution of the United States, was designed as a limitation of the powers of the national government, and is inapplicable to the legislation of the States.
    3. Virginia Bill of Rights — Does Not Forbid Imprisonment for Taxes. — The hill of rights of Virginia, which declares that no man shall “he deprived of his liberty except by the law of the land or the judgment of his peers,” does not forbid the State to enforce the collection of the tax on licenses, by imprisonment of the delinquent, when no personal property can be found by the officer out of which to make the tax.
    4. Statute — Authority of Commissioners to Appoint an Assistant — Collateral Attack. — A commissioner of the revenue under § 7 of the act of 1807, In relation to the assessment of taxes on licenses, appoints an assistant commissioner, and the appointment is approved by the proper court. The question whether the facts existed which authorized the commissioner to appoint an assistant, cannot he made in a collateral proceeding.
    
    5. Same — How Certificates Issued. — The act authorizing the assistant to perform all the duties which his principal is authorized to perform, it is not necessary that the certificates given hy him shall be given in the name of the principal, or that the name of the principal shall he signed to the certificate.
    6. Assessment of Tax — Levy by United States — Im= prisonment. — The assistant commissioner having delivered to the sheriff a certificate of the tax assessed on B, for a license to distill spirits, and B failing to pay the tax, the sheriff levys upon personal property of B, and leaves it in his possession. On the day appointed for the sale of the property the sheriff goes to the place and finds the property in possession of a United States revenue officer, who claims it under a levy for the tax due from B to the II. S. government; *this levy having been made subsequent to the levy by the sheriff. Thereupon the sheriff takes no further steps to obtain possession of the property, and it is sold for the tax due the U. S. government. The sheriff not being able to find any other property of B, takes and holds him in custody. B is legally in custody.
    This is a writ of error to a judgment of the Hustings court of the city of Richmond, rendered on a writ of habeas corpus. The defendant in error, in his petition for a writ of habeas corpus, complained that he was unlawfully detained in the county jail of the county of Henrico; and he stated that he was not so held for any crime or misdemeanor, but was informed and believed that the sheriff claimed to hold him in confinement in said jail for the non-payment of an alleged assessment made against him in favor of the Commonwealth, for the manufacture of spirituous liquors, amounting, as was claimed, to about $2,600; and he charged that if any such assessment had been made it was contrary to law and void; that the person who claimed to have made it was not, at the time of making it, an officer or person authorized to make any assessment of any tax; that such imprisonment was contrary to the constitution and laws of the United States and of this State; that no debt had been proved or legally established against him; that he had not been tried or impleaded for the recovery of said pretended tax, nor had any judgment been rendered against him by any court having jurisdiction in the premises. He therefore prayed for a writ of habeas corpus, and that he might be discharged from such imprisonment.
    The writ was accordingly awarded, directed to the sheriff of Henrico county, who made his return thereon as follows:
    “To the honorable judge of the court of Hustings for the city of Richmond, Va. :
    In obedience to the within writ, to me directed, I *here produce the body of A. J. Byrne, the party named in said writ. I am the sheriff of Henrico county, and was such on the 3d day of February, 1870. There was handed to me for collection the following certificates, which were in the words and figures, to wit: ‘The sheriff of Henrico county will receive of A. J. Byrne thirteen hundred and seventy-five dollars, the tax imposed by law for the extension of his license to manufacture fifty-five thousand gallons of spirituous liquors, at his distillery in said county, assessed by me as As’t Com’r of the Revenue for the first district of said county, until the 30 day of April, 1870. Given under my hand the 24th da3r of November, 1869. John A. Bacho, As’t Com’r of Revenue, 1st district of Henrico county. ’ And ‘The sheriff of Henrico county will receive of A. J. Byrne, twelve hundred and seventy-five dollars, the tax imposed by law for continuing to manufacture fift3r-one thousand gallons of spirituous liquors at his distillery in said county, until 30th day of April, 1870, assessed by me as Ass’t Com’r of the Revenue in the 1st district of said county. Given under my hand the ISth October, 1869. Signed, John A. Bacho, Ass’t Com’r Rev. 1st district Ho. co’ty. ’ ”
    These assessments, amounting to the sum of twenty-six hundred and fifty dollars, and being due and unpaid by the said A. J. Byrne or any one for him, and being unable to find sufficient property of the said A. J. Byrne to satisfy the said taxes so assessed against him, I, as sheriff of said count3, proceeded, and did on the said 3d day of February, 1870, arrest the said A. J. Byrne, and have since so held him, being required to do so by the act of the General Assembly passed April 19, 1867, section 63, page 849, and the said taxes so assessed against the said A. J. Byrne being still unpaid, and I being unable to find sufficient property belonging *to him to satisfy the same, I still hold him in arrest, and for no other cause known to me.
    “H. J. Smith,
    “Sheriff of Henrico county.
    “February 4th, 1870.”
    This return was traversed by the petitioner as follows:
    “First, That it is not true, as stated in the said return, that any tax was duly assessed against this defendant, as therein stated.
    “Second. That John A. Eacho, therein styled assistant commissioner of revenue, was not legally at that time such assistant commissioner of re venire, nor had he any legal authority to make the said assessments or either of them.
    “Third. It is not true, as stated in said return, that the said H. J. Smith, sheriff, was unable to find sufficient propert3r out of which to make the said tax; that, on the contrary, there was, at the date when the said assessments were delivered to the said sheriff, sufficient personal propert3r belonging to the said Andrew J. Byrne, out of which the said tax could have been made, and that, in point of fact, • the said sheriff did, on or before the 20th of November, 1869, levy upon and take into his possession, property of said Byrne more than sufficient to pay said tax, and'the said sheriff did, on or about said 20th day of November, advertise the said property for sale, and if said tax was not made out of the same, it was the fault and neglect of the said sheriff.
    “Fourth. That the provisions of the said statute of 1867, referred to in the said return, have not been complied with in such manner as to authorize the arrest of the said Byrne.
    “Fifth. That the arrest of said Byrne is contrary to *law, and in violation of the constitution of this Commonwealth, and that so much of the provisions of said act of 1867, so referred to in the said return, as authorizes the arrest and confinement of the person, in the manner and way therein pointed out, is unconstitutional and void, and in violation of the constitution of the United States, and of the constitution of this Commonwealth. A. J. Byrne.”
    After several continuances and adjournments of the case, it came on for trial in the court of Hustings, on the 12th day of March, 1870, when the court, having fully heard the cause, and considered the same upon the law, facts and arguments of counsel, determined and adjudged that the said Andrew J. Byrne should be discharged from custody.
    All the facts proved on the hearing of the cause, are set out in a bill of exceptions taken by the attorney-general in behalf of the Commonwealth, to the judgment aforesaid; which bill states that the Commonwealth, to sustain the issue made up in the cause on his part, introduced and read to the court the- orders No. 1 and 2 of the County court of Henrico, which are in the words and figures following, to wit:
    No. 1.
    “In Henrico County court, Sth April, 1869, Sidney W. Blankinship, who has been, by an order of George Stoneman, Brev. Major-General U. S. A., commanding, dated the 20th day of March, 1869, appointed commissioner of the revenue for the first district of Henrico county, to fill the vacancy caused by the removal of John A. Eacho'from office, in accordance with general orders No. 24, dated March ISth, 1869, and empowered to perform all the duties of the said office, according to law, until his successor shall be duly elected or appointed and qualified, this day appeared in *court, and, together with E. D. Hacho, his security (who first justified on oath as to his sufficiency), entered into and acknowledged a bond, in the penalty of five thousand dollars, conditioned for the faithful performance of the duties of his said office, which said bond is ordered to be recorded by the clerk of this court, who is also directed to transmit a copy of the said bond to the auditor of public accounts, and also a copy of this order; and thereupon the said Sidney W. Blankinship took the oath of fidelity to the Commonwealth, the anti-duelling oath, the oath to support the constitution of the United States, and the oath of office. And also produced to the court a certificate of John Woodworth, a justice of this .county, accompanying the oath prescribed by the act of Congress of July 2d, 1862. A copj' — Teste:
    “R. M. Thorne, C. H. C.” .
    No. 2.
    “In Henrico County court, 5th April, 1869:
    “On motion of Sidney W. Blankinship, John A. Hacho is appointed assistant commissioner of the revenue for the first district, Henrico county; and thereupon the said Hacho took the several oaths prescribed by law. A copy — Teste:
    “R. M. Thorne, C. H. C.”
    And further to sustain the issue on her part, the Commonwealth introduced and read the certificates signed by John A. Hacho, assistant commissioner, &c., set out in the return to the writ of habeas corpus, and hereinbefo're set forth; and also introduced a witness, Henry J. Smith, sheriff of Henrico county, who proved that the said John A. Hacho was the only person known to him as commissioner of the revenue for the first district of said county. That said Blankinship, who was appointed corn-missioner, and qualified as *specified in said first recited order of the said county court, did not act; but that the said Eacho continued to act just as he did before his removal from office, kept all the books, and did all the business appertaining to the office of commissioner of said district. The said Blankinship never performed any act as commissioner. He came to the court to sign his official bond. He then appeared to be in good health, and the witness had no knowledge of his being disqualified from acting as commissioner1 by physical cause. He has resided since his appointment in the said county, of Henrico, and has been seen by witness occasionally in the city of Richmond. The witness, as sheriff of the said county, made the arrest of the said A. J. Byrne on the 3d day of February, 1870, under the two certificates aforesaid. The tax therein specified has not yet been paid. He made a levy under the first in date of said certificates, but did not sell the property levied on. After making the levy, he advértised the propertjr levied on. for sale. An extract of said advertisement, from one of the Richmond newspapers, was shown to witness, and identified as the one made by him. It is as follows:
    “Sheriff’s Sale. — -Will be sold on Monday, 29th of November, 1869, at the distillery of A. J. Byrne, about one mile below the corporate limits, on the Osborne turnpike, 138 hogs, levied upon by me to satisfjr State taxes against said Byrne, amounting to about $1,300, or so many thereof as may be necessary to satisfy said claim. Sale to take place at 12 o’clock, M.
    “Win. M. McGruder,
    
      “D. S. for H. J. Smith, sheriff of Hen-rico county.”
    On the day designated for the sale, he sent his députy to sell the property, which, after the levy, had.been left on the premises occupied by the said Byrne, *and later in the day went down to the place himself. He was stopped from selling by some one connected with the United States internal revenue office, who stated that all the property levied on was in the hands of the government of the United States. The levy which had been made by the said witness was upon 138 hogs, though at the time of the levy there was a larger number of hogs on the premises. Witness did not levy under the last in date of the said certificates. The property levied upon under the said first certificate, was taken from the said witness as sheriff, and was sold by the collector of internal revenue for the government of the United States. The person who had been put in charge of the property levied on, and was in charge of it on the day advertised for said sale, pretended to be a government officer, and Mr. Burgess, the said collector, acknowledged afterwards to witness that he acted by his authority. After the day of sale, the witness made no further levy or attempt to levy. The United States held the property, and he did nothing more. He never went to the premises again, or attempted to levy after he received the second in date of said certificates. He received from the assistant commissioner this last named certificate some ten days after its date, and did not have it in hand until after the day on which the sale was to have taken place under said advertisement. At the time witness made the levy under the first certificate, the said hogs were in the possession of said Byrne, and there had then been no seizure or levy by the government of the United States.
    And the Commonwealth, further to sustain the issue on her part, introduced another witness, Rush Burgess, who proved that he is and was the collector of internal revenue of the United States for the Richmond district; that, as such, he made two different levies on the property of said Byrne; that he sold his property on a levy *made on the 4th January, 1870; that the first levy made by him on said Byrne’s property was made in the latter part of November, 1869, and was made six or seven days after the levy made by sheriff Smith, which is spoken of by him. Said Burgess, as collector, did not sell under his said first levy, because he was not willing to take the responsibility of doing so. The sale, by law, was required to be made within thirty days after the levy, and more than thirty days having elapsed under the first levy, the same ceased to operate, and no further proceedings were taken by him under said first levy. Byrne objected to the payment of the tax charged against him by the United States, and asked an abatement of it, which was refused by the department at Washington. Witness let the first levy run out, because it was not, in his opinion, safe to sell under it. At the time he made said first levy, he placed a keeper or guard over the property levied on, and directed him to allow no person to take or interfere with any part of it. When he made the second levy, which was on the 4th day of January, he again put the property levied on in the possession or custody of a keeper or guard. At the time he made the first levy, he found the property in the possession of said A. J. Byrne. He would not have levied on it if it had been in the sheriff’s custody. He saw the sheriff after he had made the seizure, and the sheriff then told him that he had made a prior levy. He never had any written notice of the levy by sheriff Smith. If he had found the property in the possession of the sheriff he would have held it subject to the sheriff’s lien. About a week elapsed between the time the first levy expired and the time of making' the second levy. His second levy was made on the 4th January, 1870, and the sale under it on the 3d February, 1870. A particular account of the assessment against Byrne, and of the amount of sale made 3d February, 1870, to satisfy it, signed by the witness as collector, *was introduced as evidence, and is embodied in the bill of exceptions, from which it appears that the amount of the sale was $5,079 00
    And the amount of the assessment
    and cost of collection, 4,943 79
    Heaving due to A. J. Byrne, $135 21
    The petitioner, on his part, introduced no evidence. And the above being all the material facts proved on the hearing of the application, the court refused to remand the petitioner to the custody of the sheriff, but discharged him therefrom. To which judgment of the court the Commonwealth excepted.
    And this is the judgment to which the writ of error in this case was awarded.
    The Attorney-General for the Commonwealth.
    The important question in this case is upon the constitutionality of the act of 1866-67, p. 849, $ 63, under which Byrne was arrested and held in custody. It is true that this is a new provision, first introduced into the tax bill of 1866 ; but it was re-enacted in the act of 1867, and has been continued in the act of 1870, passed with a knowledge that this case was pending. The General Assembly has thus shewn that it was not hasty and inadvertent legislation, but commends itself to the judgment and the sense of justice of that body. But although it was introduced into the tax bill for the first time in 1866, it was not the only new provision introduced into that act. On the contrary, that act for the first time dispensed with the payment of the license tax before the issuing of the license; and it was because of this relaxation of the former rule, that this provision was introduced, and indeed, became a necessity. And if this law shall be held to be unconstitutional, then the law requiring' the tax to be paid in advance will, of necessity, be restored; and thus to relieve *an exceptional case, the whole business community is to be injured. The case does not, therefore, appeal very strongly to the justice of the court, or to any considerations of a wise policy.
    It is true that this court will declare a law to be unconstitutional which 'is plainly so; but as has been often said by the court, it is a very delicate duty, and it is especially so when the court is called upon to decide upon the matured and well considered act of the general Assembly; and it will never be done unless the act is plainly unconstitutional. Eyre v. Jacob, 14 Gratt. 422-6-7; The Richmond Mayoralty Case, 19 Gratt. 673.
    The act is charged to be unconstitutional because it authorizes a person to be taken in custody upon the mere certificate of a commissioner of the revenue, without a hearing, and not even based upon a record; and that, too, with no means of deliverance, unless he can pay the money or give security to pay the tax and the fine.
    It is to be borne in mind that this is a proceeding by the Commonwealth to enforce the payment of the taxes due to it. It is not pretended that this party has been assessed with a greater amount of tax than is just. Indeed, the law provides carefully against any such imposition. The ratio of tax is fixed by the law, and the party asking for the license himself gives the quantity of liquor he expects to distill in a certain time; and it is only when he declines or fails to give it that the commissioner is authorized to estimate the quantity. And he may, at any time within two years, apply to the court and have any injustice done him, corrected.
    It is a principle which has- long been recognized in Virginia, that the prerogatives vested in the crown of Great Britian for public purposes at the time of our separation from the mother country, so far as they are suited to our condition, are vested in the government of Virginia; and this is especially so in relation to taxation *and the enforcement of the payment of taxes and other public dues. Without wasting time or labor in the citation of authorities, it is enough to refer to the case of Murray’s lessee v. Hoboken Hand and Improvement Co., 18 How. U. S. R. 272, in which the subject is fully investigated, and in which the power of the government to proceed, by summary remedies, against its debtors, is vindicated with signal ability, by Justice Curtis, delivering the opinion of the court. And it will be seen that this authority in the United States government is based upon the power of the crown of Great Britian, acted on by the colonies, and among them Virginia, from the earliest period, and continued after they became States; and this power extended as well to the body and the lands as the goods. See on this subject Paschall’s annotated constitution, p. 260, where the cases are compiled, and the meaning of the phrases in the constitution on which the prisoner, by his counsel, rests his argument, is fully explained.
    It is complained that this proceeding is not based upon a record. The only record in the case in 18 Howard, was the statement, by an accounting clerk of the government, of the account of the debtor, shewing the balance against him. And in the case of other assessed taxes, there is no other record and no better evidence of the tax being due than there is in the case now before the court. A commissioner of the revenue takes a list of each man’s taxable property, and entering it in a book, he hands that to the collector of taxes, who makes off his tax tickets from it: and that is the only record upon which all assessed taxes are collected. In the case of licenses the same officer ascertains in the same way, viz: from the person to be taxed, what is to be taxed; and hands it to the collector to be collected. What record is there in the one case that there is not in the other.
    But then the great complaint is that there is no way *of getting out of jail when once put into it. The law provides two modes by which such a party may be relieved. One is by paying what is due; and the other is by giving bond and secu-ritjr to satisfy the judgment of the court. That any man shall apply for a license 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 part, that Eacho was not legally appointed an assistant commissioner of the revenue; and if he was, that his certificate is null ^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, 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 & ais. v. Thomas & Ammon, 19 Graft. 14; Devaughn v. Devaughn, Id. SS6.
    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 Sth article of the amendment to the constitution of the United States, and section 10 of the Virginia Bill of Rights, are relied upon. The former *provides that no person shall be deprived of “life, liberty or property without due process of law.” The latter, that “no man may be deprived of his liberty except by the law of the land or the judgment of his 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. Daw, 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. Daw, 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, IS; 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 ha.s 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 pay-rnent 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 *is to appear and answer to an action of debt, to an indictment or information, and to satisfy not only the fine imposed, but to pay the tax assessed. The defendant is clearly deprived of the right of trial by jury, because he is to remain in confinement until the tax is paid.
    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 unconstitutional 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 Degislature. 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 Beigh 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 & ais., 9N. 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 Roster 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 Sergf. & Rawle R. 208, the evidence showed that the persons who made the assessments were recognized as officers by the countjr 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 in-tendments 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 *appear to be upon its face, then, the act of the commissioner at all. These lists, we insist, gave no authority to the sheriff, because they were not attested with the signature of the commissioner nor made in his name.
    In Hannel v. Smith, IS Ohio R. 134, cited in Blackwell on Tax Titles, 250 and 346, the tax list v'as signed “John Brough, auditor, by J. B. Thomas.” The court held the sale was void because the list was not attested by the signature of the auditor.
    So we say in this case, that this act must have been performed in the name of the commissioner himself; that though the commissioner might employ an assistant, the acts must appear to be done by and be authorized in the name of the commissioner. We therefore insist that the assessments in this case were nullities, and furnished no authority for the imprisonment.
    3d. It does not appear that the facts- necessary to authorize the appointment of an assistant commissioner existed in this case. The former commissioner, Mr. Eacho, was removed by military authority, because of his inability to take the oath required by the act of -Congress, and Blankenship -was appointed by the same authority to be the commissioner; but on the very day of his appointment, an order was made appointing Eacho assistant commissioner, without assigning any of the grounds required by the 7th section of the act of ’66-67, p. 728, which are made the foundation for such an appointment, and the duties of the office was thereupon devolved exclusively upon the assistant commissioner, who alone appears to have discharged the duties of the office; which was not only in manifest contravention of the law on the subject, but the policy of the act of Congress under which Blankenship was appointed, and could give no authority for -the arrest or imprisonment of the defendant Byrne.
    4th. The arrest -was illegal again, because, by the *terms of the statute, the sheriff had authority to arrest only when he was unable to find sufficient property to satisfy the tax and the same remained unpaid. The non-payment of the tax is admitted, but the other portion of the condition utterly fails, because the sheriff not only could find property of the petitioner on which to levy and out of which the tax could be made, but long prior to the arrest, he actually levied upon personal property belonging to Byrne, more than enough to satisfy the whole claim, and he advertised it for sale on November 29, 1869; and where the power of levy and a thing to be seized in existence is shown, the right to attach the person is forever at an end.
    In Scales v. Alvis, 12 Alab. R. 617, the statute under consideration provided, that where the person 1 ‘ had no personal property in the county, his real estate could be seized. ’ ’ It appeáred that the person had a yoke of oxen which were exempt from levjr and sale, but the court held that the land could not be seized because, by the terms of the statute, the right of seizure was made to depend upon the fact that he had no personal property.
    This record discloses the fact, that several days after the levy by the sheriff upon the property of Byrne, the collector of internal revenue, for the third collection district, levied upon the same and other property, to collect a tax alleged to be due to the United States, amounting to $4,943, and that on the day when the sale was advertised to be made by the 'sheriff, finding that a keeper was in possession of the property, placed there by the collector of internal revenue, the sheriff omitted to sell and abandoned his property.
    The lien of the collector for the tax due to the United States was not paramount to that due to the State: the priority of each depended solely upon the time when the levy was made; for the United States has no other priority, except upon specific property upon '’''which a specific tax is made a lien. The internal revenue laws provide upon what property and class of articles the government shall have a specific lien for the spirit tax. By sec. 8, act of July 20, 1868, the government has a lien upon the real estate. By sec. 44 of the same act, a great variety of articles and propertjr of various descriptions is subject to forfeiture by reason of its illegal use and for attempts made to defraud the United States.
    By sec. 14, act of March 2, 1867, the tax on distilled spirits was made a lien “upon the distillery, the spirits, stills, vessels, fixtures and tools therein, and on the lot or tract of land whereupon the said distillery is situated, together with any building thereon. ’ ’ But it will be observed that this levy was exclusively upon live hogs, a species of property upon which the government had no specific lien for the tax.
    For these reasons we insist that the sheriff had no authority to seize the person, and that the arrest and imprisonment was illegal.
    
      
      See Iverson Brown’s Case, 91 Va. 763, 21 S. E. Rep. 357.
    
    
      
      See the opinion of Judge Monguee for the statute.
    
   MONCURF, P.

The petitioner does not claim his discharge from imprisonment upon the ground that the Legislature had not a right to impose the tax, for the nonpayment of which he was arrested; nor upon the ground that he did not use and enjoy the privilege on which the'tax was imposed ; nor upon the ground that he has paid the tax, or any part off it; nor upon the ground that, at the time of his arrest, he had any property out of which the tax, or any part of it, could have been made by a levy thereon. He does not even show, or say, that he has not, in his pocket, or at his command, the means of paying the tax. But he places his defence upon the grounds: First. That the law authorizing an arrest and imprisonment in such cases is unconstitutional and void, because contrary to the constitutions both of the United States and of this State. *Secondly. That it does not appear that the facts necessary to authorize the appointment of an assistant commissioner of the revenue existed in this case; and, if they did, and the assistant was duly appointed, he had no authority to make the assessment, which could only have been legally- made by the principal commissioner himself; and, if he had such authority, he could exercise it only in the name of his principal, which should, but does not, appear on the face, or at the foot, of the certificates of assessment. And, Thirdly. That, while the said certificates were in the hands of the sheriff of Henrico county for collection, there was ample personal property of the petitioner, Byrne, for their payment, on which they might have been levied, and ought to have been levied, before any arrest of the person was made; and long prior to the arrest, the said sheriff actually made a levy upon the personal property of Byrne, more than enough to satisfy the whole claim, and advertised it for sale.

X will now proceed to consider these three grounds of defence in the order above stated; and,

First, as to the constitutionality of the law under which the petitioner was arrested.

That law is the 63d section of chapter 57 of the acts of the General Assembly, passed at the session of 1866-67, Sess. Acts, p. 849, and is in these words:

“63. Within ten days after a commissioner of the revenue shall have granted a certificate to obtain a license, he shall deliver to the sheriff or other collector of the taxes on such licenses, a list of all such certificates, as far as he may have progressed with the same; which list shall be the guide of the sheriff or collector in collecting the taxes imposed by law on such license. If the taxes be not paid, the sheriff or collector shall distrain, immediately upon the receipt of such list, for the amount with which any person may have been assessed; and he may sell, upon ten days’ notice, so *much of such person’s property, subject to distress, as may be necessary to pay the taxes so assessed, and the costs attending its collection. If the sheriff or collector shall be unable to find sufficient property to satisfy the taxes so assessed, and the same shall not be immediately paid, the said sheriff or collector shall arrest the person so assessed, and hold him in custody until the payment is made, or until he enter into bond, with sufficient security, in a penalty at least double the amount of the taxes so assessed, conditioned for his appearance before the Circuit court of his county or corporation, to answer to such action of debt, indictment or information as may be brought against him, and to satisfy, not only the fine imposed, but to pay the taxes assessed; and it shall be lawful for the court, upon the trial of such action of debt, indictment or information, to render judgment upon such bond for the fine imposed and the taxes which may be assessed.”

It is contended that this law is contrary to Article V. of the amendments to the constitution of the United States, which declares that no person shall “be deprived of life, liberty, or property without due process of law;” and is also contrary to that part of clause 10 of the Bill of Rights, being Article I. of the constitution of Virginia, which declares that ho man shall “be deprived of his liberty except bjr the law of the land or the judgment of his peers. ’ ’

In regard to the provision of the constitution of the United States above referred to, it is enough to say that it ‘ ’was designed as a limitation of the powers of the national government, and is inapplicable to the legislation of the States.” Nelson, C. J., in Taylor v. Porter & Ford, 4 Hill’s R. 140; citing Barron v. The Mayor, &c., of Baltimore, 7 Peters U. S. R. 243; Livingston v. The Mayor, &c., of New York, 8 Wend. R. 85; and 2 Cow. R. 818, and note (c). Then,

*Is the law in question contrary to that part of the Bill of Rights of Virginia which declares that no man shall ‘ ‘be deprived of his liberty, except by the law ’of the land or the judgment of his peers?”

That a man may be deprived of his liberty by the law of the land, is conceded by the very terms of the provision just mentioned. That he cannot “be deprived of his liberty except by the law of the land, ’ ’ necessarily implies that he may be deprived of it by the law of the land; and this is certainly an undeniable fact. Our Code contains many laws by which a man may be deprived of his liberty, and such laws are enacted every year. At the same time it must be admitted that these words of the constitution, “law of the land,” do not include every enactment which has the form of law. In the language of Bronson, J., in Taylor v. Porter, 4 Hill’s R. 140, 146, they “do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction nugatory, and turn this part of the constitution into mere nonsense. The people would be made to say to the two houses: ‘you shall be vested with the legislative power of the State, but no one shall be’ deprived, &c., ‘unless you pass a statute for that purpose. ’ In other words, ‘you shall not do the wrong unless you choose to do it.’ ” In the language of Mr. Webster, in his celebrated argument in the Dartmouth college case, 5 Webster’s Works, 487, 488: “The meaning is” (speaking of the provision in the constitution of the United States), “that every citizen shall hold his life, liberty, property, and immunities, under the protection of general rules which govern society. Everything which may pass under the form of an enactment is not, therefore, to be considered as the law of the land. If this were the case, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man’s estate to another, legislative “judgments, decrees and forfeitures, in all possible forms, would be the law of the land. Such a strange construction would render constitutional provisions of the highest importance, completely inoperative and void. ’ ’

What, then, • is the meaning of these words, “law of the land,” in this connection, and do they embrace the law under consideration? These are the questions we now have to dispose of.

The provision of our bill of rights in which these words are found, is similar to but not so extensive as the provision of the constitution of the United States before referred to; and a like provision is contained in the constitution of every State in the Union. The meaning of such a provision has been the subject of consideration and decision in many cases. The most important of them all seems to be the case of Murray’s lessee, &c. v. Hoboken Land and Improvement Co., 18 How. U. S. R. 272-286, decided by the Supreme court of the United States at December term, 1855. Mr. Justice Curtis delivered the opinion of the court, which was unanimous. In that case it was held, among other things, that a distress warrant issued by the solicitor of the treasury, under the act of Congress passed on the lSth of May, 1820 (3 Stats, at Barge S92), is not inconsistent with the constitution of the United States; that it was an exercise of executive and not of judicial power, according to the meaning of those words in the constitution; and that it is not inconsistent with that part of the constitution which prohibits a citizen from being deprived of his liberty or property without due process of law. “The words ‘due process of law,’ (say the court) were undoubtedly intended to convey the same meaning as the words ‘by the law of the land,’ in magna charta. Bord Coke, in his commentary on these words (2 Inst. SO), says they mean ‘due process of law.’ The constitutions which had been adopted by the several *States before the formation of the federal constitution, following the language of the great charter more closely, generally contained the words ‘but by the judgment of his peers, or the law of the land:’ (and this is, substantially, the language of the bill of rights of Virginia) . The ordinance of Congress of July 13, 1787, for the government of the territory of the United States northwest of the river Ohio, used the same words.” “That the warrant now in question” (the court further say) “is legal process, is not denied. It was issued in conformity with an act of Congress. But is it ‘due process of law?’ The constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are intended to be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative, as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process ‘due process of law,’ by its mere will. To what principles then are we to resort, to ascertain whether this process, enacted by Congress, is due process? To this the answer must be two-fold. We must examine the constitution itself to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition, by having been acted on by them after the settlement of this country. We apprehend there has been no period, since the establishment of the English monarchy, when there has not been, by the law of the land, a summary method for the recovery of debts 4ue to the crown; and especially those due from receivers “of the revenues. It is difficult, at this day, to trace, with precision, all the proceedings had for these purposes in the earliest ages of the common law. That they were summary and severe, and had been used for purposes of oppression, is inferable from the fact that one chapter of magna charta treats of their restraint. ’ ’ It declares, “We, or our bailiffs, shall not seize any land or rent for any debt, as long as the present goods and chattels of the debtor do suffice to pay the debt, and the debtor himself be ready to satisfy ) therefor, ’ ’ &c. “By the common law, the body, lands and goods of the king’s debtor were liable to be levied on to obtain payment. In conformity with the above provision of magna charta, a conditional writ was framed commanding the sheriff to enquire of the goods and chattels of the debtor, and if they were insufficient, then to extend on the lands.” “But it is said that since the statute 33 Hen. 8, c. 39, the practice has been to issue the writ in an absolute form, without requiring any previous inquisition as to the goods. Gilbert’s Exch. 127. To authorize a writ of extent, however, the debt must be matter of record in the king’s exchequer,” &c.

After giving an account of the practice pursued at different times in England in such cases, the court say: ‘ ‘This brief sketch of the modes of proceeding to ascertain and enforce payment of balances due from receivers of the revenue in England, is sufficient to show that the methods of ascertaining the existence and amount of such debts, and compelling their payment, have varied widely from the usual course of the common law on other subjects, and that as respects such debts due from such officers, ‘the law of the land’ authorized the employment of auditors, and an inquisition without notice, and a species of execution, bearing a very close resemblance to what is termed a warrant of distress in the act of 1820, now in question.

*It is certain that this diversity in “the law of the land,” between public defaulters and ordinary debtors, was understood in this country, and entered into the legislation of the colonies and provinces, and more especiallj' of the States, after the declaration of independence and before the formation of the constitution of the United States. Not only was the process of distress in nearly or quite universal use for the collection of taxes, but what was generally termed a warrant of distress, issuing against the body, goods and chattels of defaulting receivers of public money, was issued to some public officer, to whom was committed the power to ascertain the amount of the default, and by such warrant proceed to collect it. Without a wearisome repetition of details, it will be sufficient to give one section from the Massachusetts act of 1786.” After giving which, the court refers to similar provisions contained in the acts of Connecticut, Pennsylvania, South Carolina, New York, Virginia and Vermont, passed before the formation of the constitution of the United States, and in the acts of Louisiana and the United States, passed since that period; and then say: “This legislative construction of the constitution, commencing so early in the government, when the first occasion for this manner of proceeding arose, continued throughout its existence, and repeatedly acted on by the judiciary and the executive, is entitled to no inconsiderable weight upon the question, whether the proceeding adopted by it was ‘due process of law.’ ” “Tested by the common and statute law of England, prior to the emigration of our ancestors, and by the laws of many of the States at the time of the adoption of this amendment, the proceedings authorized by the act of 1820, cannot be denied to be due process of law, when applied to the ascertainment and recovery of balances due to the government from a collector of customs, unless there exists in the constitution some other provision *which restrains Congress from authorizing such proceedings.

Eor, though ‘due process of law’ generally implies and includes actor, 'reus, judex, regular allegations, opportunity to answer, and a trial according to some settled course of judicial proceedings (2 Inst. 47, 50; Hoke v. Henderson, 4 Dev. N. C. R. 15; Taylor v. Porter, 4 Hill R. 140, 146; Van Zant v. Waddel, 2 Yerg. R. 260; State Bank v. Cooper, Id. 599; Jones’ Heirs v. Perry, 10 Id. 59; Greene v. Briggs, 1 Curtis C. C. R. 311), yet this is not universal^ true. There may be, and we have seen that there are cases, under the law of England after magna charta, and as it was brought to this country and acted on here, in which process, in its nature final, issues against the body, lands and goods of certain public debtors, without any such trial; and this brings us to the question, whether those provisions of the constitution, which relate to the judicial power, are incompatible with these proceedings?”

The court then proceed to examine this question, and arrive at the conclusion, that no such incompatibility exists. In the course of their remarks on this sub jeer, they say: “As we have already shown, the means provided by the act of 1820 do not differ in principle from those employed in England from remote antiquity, and in many of the States, so far as we know, without objection, for this purpose, at the time the constitution was formed. It may be added, that probably there are few governments which do or can permit their claims for public taxes, either on the citizen or on the officer employed for their collection or disbursement, to become subjects of judicial controversy, according to the course of the law of the land. Imperative necessit3r has forced a distinction between such claims and all others, which has sometimes been carried out by summary methods of proceeding, and sometimes by systems of fines and penalties, but always in some way observed and yielded to.”

*1 have made these long quotations, because the case from which they are taken is one of the highest authority, and seems to be conclusive of the main point of controversy in this case, and because the language of the court in that case expresses the views which I wish to present, much more strongly and aptly than I can do, by any language of my own. Many other cases might be cited in support of the same views, but I will r'efer to one or two of them only. In the State v. Allen, 2 McCord R. 55, Mr. Justice Eott says: “This method of collecting taxes is as well established by custom and usage as any principle of the common law. A similar practice prevailed in all the colonies, from the first dawn of their existence; it has been continued by all the States since their independence, and had existed in England from time immemorial. Indeed, it is necessary to the existence of every government, and is based Upon the principle of self-preservation.” “I think, therefore, that any legal process, which was originally founded in necessity, has been consecrated by time, and approved and acquiesced in by universal consent, must be an exception to the right of trial by jury, and is embraced, by the alternative, ‘the law of the land. ’ Such I consider to be the summary proceeding allowed in the collection of taxes. ’ In McCarroll v. Weeks, 2 Tenn. R. 215, the court hold the following language, in sustaining the constitutionality of these summary tax laws: “It is certainly true that they have the character of summary proceedings, and it is equally true that they must of necessity be so; for, if the government were necessitated to take the cautions and tedious steps of the common law,” “it would cease to- exist for want of money to carry on its necessary operations; loss of credit and a total extinction of the national faith, the basis of all regular government, must be the inevitable consequence.” See, also, 6 Monroe R. 430; *9 Georgia R. 352; 11 Id. 82; 6 Missouri R. 64; 1 Halst. R. 352; 10 La. Ann. R. 764.

In Blackwell on Tax Titles, p. 176, edition of 1864, chapter 9, the writer says: “Where the person against whom a tax has been legally assessed neglects or refuses to pay the tax voluntarily, after a notification and demand made by the collector in the manner prescribed by law, the necessities of the State compel a resort to coercive means. In some'States the law requires the body of the delinquent to be arrested and imprisoned, in satisfaction of the tax.” Bassett v. Porter, 4 Cush. R. 487; Daggett v. Everett, 19 Maine R. 373; Rising v. Granger, 1 Mass. R. 47; Appleton v. Hopkins, 5 Gray’s R. 530. “In other States, the law requires the tax to be collected out of the personal estate of the delinquent if a sufficiency can be found to satisfy it. In South Carolina the statute thus marshals the remedies: 1. A distress of the personal estate of the delinquent; 2. The sale of the land; 3. The seizure and imprisonment of the body (Kingman v. Glover, 3 Rich. R. 27). A violation of the order of remedies thus prescribed invariably renders the act of the officer illegal. It is the policy of the law to resort to the land itself only when all other remedies fail to enforce a satisfaction of the tax. The person or personal estate of the delinquent is regarded as the primary, the land the dernier, resort. The tax never becomes a charge upon the land until the other remedies have been exhausted. ’ ’ ‘ ‘The law admits of no substitution or change in the order thus established. It is therefore held that the land of the delinquent cannot be sold in those States which authorize imprisonment, if his body can be found, nor can a resort be had to the land, in States where the personal estate is regarded as the primary fund, as long as a sufficiency of personal estate can be seized and sold in satisfaction of the tax: a sale of the land, under such circumstances, is illegal and void.”

*T presume no one will contend, and I did not understand the learned counsel for the defendant in error as contending in this case, that the law in question is unconstitutional in authorizing the sheriff or collector to distrain the property of the person assessed with taxes, as therein mentioned, if they be npt paid. The necessity of such a power, and its constant exercise from time immemorial, as we have séen, places its constitutionality on an impregnable basis. But it seems to be supposed that the law is unconstitutional in authorizing the sheriff or collector, if unable to find sufficient property to satisfy the taxes so assessed, and the same shall not be immediately paid, to arrest the person so assessed and hold him in custody until the payment is made, or until he enter into bond with sufficient security, as therein mentioned. Why should this power to arrest the person so assessed make the law unconstitutional any more than the power to distrain his goods? The ground of the objection is that a person cannot be deprived of his liberty except by the law of the land. But a person cannot be deprived of his property', any more than his liberty, except by the law of the land; and yet it is well settled, and must be admitted, that a person’s property may' be seized for non-payment of his taxes, upon the mere assessment of the commissioner of the revenue, and without any judgment of any court against him. Why may not his person be arrested for the same cause, whe'n the law expressly authorizes such an arrest? We have seen that the authorities place the seizing of the property, and arresting of the person of the tax debtor, on the same footing, in regard to the constitutional question we are now considering; and so they undoubtedly are. The power to afrest the person may not be so often given by tax laws as the power to distrain property; but a power to arrest the person is often given by such laws, and is sometimes necessary' to make them efficient; and whenever *it is necessary, the Legislature, which is charged with the important duty of raising a revenue for the support of government, may constitutionally confer such a power. It is not contrary, as has been shown, to the provision of the Bill of Rights before referred to, nor is .it contrary to any other provision of the constitution. There is no provision in our constitution, as there is in some of the other State constitutions, which forbids imprisonment for' debt. And it is well known that, until a recent period, a person might be imprisoned in this State, not only on final process in a civil action, but on original process in a bailable action, by a mere endorsement by the plaintiff’s attorney on the process, requiring bail. And though the law has been changed in this respect, yet the old law may at any time be restored, at the will of the Legislature. There is nothing in the constitution to prevent it. Lven if imprisonment for debt were forbidden by the constitution, such a provision would not, I imagine, forbid imprisonment as a means of enforcing the payment of taxes, if the Legislature found it necessary to resort to such means in order to raise a revenue. But such a question does not arise in this case, and of course is not intended to be decided.

But it is objected that imprisonment may be perpetual under this law, as it makes no provision for the discharge of the prisoner, even though he be insolvent.

If this be true, it may show the law to be harsh in its operation, but does not therefore show it to be unconstitutional. It may be a bad exercise of legislative discretion, but not an excess of legislative power. The courts may control the latter, but have nothing to do with the former.

In vindication of the law against this imputation of harshness it may, however, be said that no person is compelled to obtain a license, unless he chooses to exercise the privilege for which it is required. He sees *the law a'nd knows the terms on which alone he can obtain a license; and by obtaining it, assents to all those terms, so far at least as they may be constitutional. One of those terms is, that if the tax be not immediately paid, and the sheriff or collector be unable to find sufficient property to satisfy the tax, he is required to arrest the person assessed with the tax, and hold him in custody until payment is made, or bond given as prescribed by law.

The act in relation to the assessment of taxes on licenses, under which the assessment in this case was made, prescribes what is to be done where a person wishes to engage in a licensed business. It is his duty to apply to the commissioner of the revenue of the district where the business is to be prosecuted, for an alssessment of the tax imposed by law on the license he desires to obtain. It is thereupon the duty of the commissioner to administer the oath required by the act, ' and deliver to such person a certificate showing the business which may be pursued, the place at which it may be prosecuted, and the amount of tax to be paid by such person for the licensed privilege. This certificate is required to be produced to the proper sheriff or collector, whose duty it is to receive the taxes named therein and grant to such person a receipt therefor written upon the certificate, which certificate and receipt, made in conformity to law, are declared to be a license to prosecute the business named therein. Acts of Assembly 1866-67, p. 846, $ 52.

In regard to the manufacture of wine, ardent spirits and malt liquors, it is provided, with certain exceptions immaterial to be stated, that there shall be a specific tax for the privilege of distilling or other manufacturing of wine, ardent spirits or malt liquors, and there shall also be a tax on the quantity thereof to be manufactured or distilled, which shall be stated in the license. If the person desiring such license make application *therefor, he shall state on oath the probable quantity, which, in his opinion, he will distill or manufacture during the time the license is to continue, and the tax shall be assessed, as well for the specific amount as upon the quantity to be produced. If the application shall not be made to the commissioner for an assessment, he shall assess the specific tax as in other cases of default, and shall ascertain, upon the best information he can obtain, the probable quantity which the distillery will produce during the time the license will continue, and shall thereupon assess the actual rate per gallon provided for in the act. If the quantity to be manufactured or distilled under such license shall have been made, and the person desires to make an additional quantity, he may apply for a new assessment and a new license for the additional quantity desired, which shall be granted upon the payment of the tax on the gallon, without the specific tax to distill or manufacture. Id. p. 837-8, | 25. The act affords ample redress against an erroneous assessment, by giving to the person aggrieved thereby a right, at any time within two years after it is made, to apply for relief to the court in which the commissioner gave bond and qualified, and by making it the duty of the court thereupon to give such relief. Id. 853-4, $ 79, and seq.

Under all these circumstances what good reason has a person assessed with this tax to complain of the severity of this law? It is his duty to pay the tax for the privilege before he exercises it. If, in defiance of the law, he disregards his duty, and manufactures ardent spirits to any amount he pleases, without paying any tax therefor, and without having any visible property on which it may be levied, can he complain that the law subjects him to arrest and imprisonment until the payment is made? His pockets may be filled with the profits of the business, and there may be no wa3^ of reaching them but by arfesting his person and holding him *in custody. Without that only effectual means of getting the tax, the Commonwealth would be deprived of a most important source of revenue, which she can illy afford to spare. There is really no hardship in the case, and certainly none of which a person assessed with the tax has any just cause to complain. If it be settled that he may be arrested and imprisoned if he fail to pay the tax and have not sufficient visible property on which it can be levied, there will rarely, if ever, be any occasion for resorting' to this remedy. The tax will almost always be paid, as it ought to be. If in any instance it should not be, and this remedy should be resorted to, the legislature could and would interpose to discharge the prisoner whenever it was found that his continued imprisonment was not likely to produce the amount of the tax, or any part of it.

But it is said that the law is harsh, and indeed unconstitutional, in requiring the person arrested to give bond, &c., for his appearance before the Circuit court of his county or corporation, to answer to such action of debt, indictment or information as may be brought against him, and to satisfy, not only the fine imposed, but the taxes assessed.

The law does not require him to give such a bond. He may discharge himself from custody by payment of the tax. What is said about the bond is for his benefit. He may give the bond, and obtain his discharge in that way, if he cannot, or does not choose, to pay the money. There is nothing unreasonable in the condition of the bond which he is thus authorized to give. He has incurred a fine, for which an action of debt, or an indictment, or an information lies, and he also owes the taxes assessed. The condition of the bond is not to pay the fine absolutely, but to answer to such action of debt, indictment or information as may be brought against him, and to satisfy the fine imposed; that is, the fine which may be imposed on the trial of *such action of debt, indictment or information ; and also to pay the taxes assessed.

I therefore think the law under which the petitioner, was arrested is constitutional; and I will now proceed to consider the next ground of defence, which is,

Secondly. That it does not appear that the facts necessary to authorize the appointment of an assistant commissioner of the revenue existed in this case; and, if they did, and the assistant was duly appointed, he had no authority to make the assessment, which could only have been legally made by the principal commissioner himself; and, if he had such authority, he could exercise it only in the name of his principal, which should, but does not, appear on the face, or at the foot, of the certificates of assessments.

The law under which the assistant commissioner, who made the assessment in this case was appointed, is in these words: ‘ ‘A commissioner, unable from sickness or other cause to perform the duties of his office, may, 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 commissioner,, and the principal and his sureties shall be liable for the faithful performance of such duties.” See p. 728, l 7.

Whether the facts necessary to authorize the appointment of an assistant commissioner existed in this case, was a question for the County court of Henrico to determine. That court accordingly determined that they did exist, by appointing John A. fijacho' assistant commissioner, who qualified as such according to law; which appointment was made on the motion of Sidney W. Blankinship, the commissioner. And that determination is conclusive of the question, being a judgment of a court of competent jurisdiction, upon a subject matter within such jurisdiction. The said assistant *was, therefore, duly appointed, and took the proper oaths; and he thereupon became expressly authorized by law to ‘(discharge any of the duties of the commissioner.” Of course he was authorized to make an assessment and grant a certificate to obtain a license. And he could do so in his own name, as assistant commissioner, without, necessarily, adding the name of the principal commissioner, either to the assessment or certificate. Being expressly authorized, as assistant commissioner, to perform any of the duties of commissioner, it seems to follow, as a matter of course, that he may certify, in his own name, as such assistant commissioner, that he did perform them. It was a rule of the common law, that an under-sheriff, or deputy sheriff, acted only in the name of his principal. 8 Bac. Abr. Sheriff, H. 1. “To prevent disputes between sheriffs and their several deputies, which of them may have acted in serving of executions or process,” our statute, at a very early period, required, that, when any under-sheriff hath served any process, he shall subscribe his name, as well as that of his principal, to the return of such process. 1 Rev. Co. 1819, p. 283, l 31; Code of 1860, p.. 284, § 27. But there is no such analogy between the offices of under-sheriff and assistant commissioner of the revenue, as to make it necessary, or proper, that the latter should act in the name of his principal. There is, in contemplation of law, but one sheriff, though many and different kinds of deputies. And, although an under-sheriff may perform the duties of the office generally, yet there are, or were, many duties of the office which the high sheriff could perform only in person : at least such was the case at common law. 8 Bac. Abr. Sheriff, H. 3. But the assistant commissioner is expressly authorized, as we have seen, to “discharge any .of the duties of commissioner.” There seems to be no reason or propriety, therefore, in requiring the assistant corn-missioner to *act in the name of his principal in performing any of the duties of the office. In Hannel v. Smith, IS Ohio R. 134, cited by the counsel for the defendant in error, the law required that the list, which was thereby directed to be transmitted by the auditor of State to the county auditor, of all lands which had been forfeited for non-pa3*ment of taxes, should be certified and signed by the auditor of State, and have thereto affixed-his seal of office. The list which was transmitted in that case was a letter signed “Jno. Brough, auditor of State, by J. B. Thomas.” The court held the authority insufficient and the sale void, on three grounds: 1. The list was not certified to be correct. 2. It was not attested by the auditor or his chief clerk. 3. It was not verified by the official seal of the auditor. The distinction between that case and this is too palpable to require further comment.

I will now proceed to consider the next and last ground of defence, which is,

Thirdly. That while the said certificates were in the hands of the sheriff of Henrico county for collection, there was ample personal property of the petitioner Byrne for their payment, on which they might have been levied, and ought to have been levied, before any arrest of the person was made; and long prior to such arrest, the sheriff actually made a levy upon personal property of Byrne, more than enough to satisfy the whole claim, and advertised it for sale.

It is not pretended that the petitioner had any property on the 3d of February, 1870, at the time of his arrest. Nor that he had any property on which the second certificate, bearing date the 24th day of November, 1869, could be levied at the time it came to the hands of the sheriff for collection. At that time the property of said Byrne was in the hands of the collector of internal revenue of the United States, under a levy made thereon for taxes due the United States, for the *payment of which taxes it was ultimately sold, and the proceeds (except a small balance, no doubt paid to Byrne, were applied to such payment accordingly, before the arrest by the sheriff. And although it appears, from the statement of the said collector, that the sale made by him, as aforesaid, was not under the said levy, but that he suffered that levy, for reasons which he states, to run out, and a few days thereafter, to wit: on the 4th of January, 1870, he made a second levy on the same property, under which second levy he made the sale aforesaid, it is not pretended, and certainly cannot be maintained, that because of the intermission of a few days between the two levies made by the collector, as aforesaid, there was such a liability of the property to a levy by the sheriff as to make his arrest of Byrne illegal. We may therefore well conclude that the arrest for the non-payment of the taxes assessed by the second certificate was lawful. So that, even if the arrest could not lawfully have been made for non-payment of the taxes mentioned in the first certificate, yet, as the arrest for non-payment of the taxes mentioned in the second certificate was lawful, the petitioner would not have been entitled to be discharged from custody on the writ of habeas corpus in this case; but ought to have been remanded to custody until payment was made of said last-mentioned taxes, or until bond was given, as required by law.

But was not the arrest also lawful for the non-payment of the taxes mentioned in the first certificate, bearing date on the 15th day of October, 1869? I think that it- was. It is true, it seems, that when that certificate came to the hands of the sheriff, the petitioner Byrne had sufficient propertj- to satisfy said taxes, which property was liable to be levied on, and was actually levied on, for the same. But it is also true, that very soon after such levy, and before the day fixed for the sale of the property under said levy had arrived, *the same property was levied on by the collector of internal revenue of the United States, for taxes due the United States by the said Byrne; and when, on the day which had been fixed by the sheriff for the sale, he went to the premises of Byrne to make the sale accordingly, he was stopped from selling by some one connected with the United States internal revenue office, who stated that all the property levied on -was in the hands of the government of the United States. The property levied on under the said first certificate was taken from the sheriff, and was sold by the collector of internal revenue for the government of the United States. The person who had been put in charge of the property levied on by the collector, and was in charge of it on the day advertised for said sale, pretended to be a government officer, and the collector acknowledged afterwards to the sheriff that he acted by his authority. After the said day fixed for said sale, the sheriff made no further levy or attempt at a levy. The United States held the property, and he did nothing more.

Now, the question we have to decide is, not whether the government of the United States, or the government of this State, were entitled to priority of satisfaction out of the property thus levied on for the payment of the taxes due by Byrne to these two governments respectively; nor whether the sheriff did not incur a personal liability to the government of the State for not having summoned a posse comitatus to take the property out of the hands of the government of the United States, or the revenue officers thereof; but whether the taxes due to the State of Virginia, for which this ineffectual levy was made, were so far satisfied by the force and effect of such levy, as that payment thereof could not be enforced by the arrest of the debtor, though at the time of such arrest he had not a particle of property upon which a levy could be made? *That is the question ; and I am clearly of opinion that it ought to be solved in the negative- — that is, that the taxes due the State of Virginia, for which the levy was made, have not been satisfied to any extent, or for any purpose, by such abortive levy, and that the arrest made was a lawful arrest, as well for the non-payment of those taxes as for the non-payment of the taxes mentioned in the second certificate.

Suppose, after the levy by the sheriff, the debtor himself had sold the property and applied it to his own use; or had removed it out of the reach of the sheriff; could the debtor then have said that the taxes were satisfied by the levy, or that there could be no arrest, because there had been a levy on property sufficient to satisfy the taxes? Certainly not. And why can he any more say so, when the property has not been applied to the payment of the taxes due the State, which were levied thereon, but was taken by officers of the United States government and applied to the payment of taxes due by Byrne to that government? When the property was applied to the payment of taxes due bjr Byrne to the United States, it was applied to his use just as much as if the proceeds of the sale had been paid to him, and there can be no reason or justice in considering this property, at the same time, as a payment of the debt due by him to the State of Virginia; and thus giving him the benefit of a double payment with the same money. The debt of Byrne to the State is yet, in fact, unpaid. She may have a recourse against the sheriff and his sureties for his official default; but her recourse against her primary debtor is not satisfied, or at all impaired. All her remedies for the recovery of that debt remain in full force; and those remedies are: 1st. A right to distrain the property of the debtor; and if the sheriff or collector is unable to find sufficient property to satisfy the debt, and the same is not immediately paid; 2dly. A right to arrest the person of *the debtor and hold him in custody" until the payment'is made -or a bond be given,'as aforesaid. When the arrest in this case was made, the debt existed and these remedies existed in full force; and the debtor having then no property on which a levy could be made, his arrest was lawful.

Suppose the sheriff had made no levy under either certificate, and the United States, or execution creditors of the debtor, had levied upon his property and applied it all to the payment of debts due to them: would the taxes due by him to the State have been considered as satisfied, because they might have been levied on the property in preference of the other debts, and because the sheriff, by failing to make such levy, may have incurred a personal liability to the Commonwealth? Certainly' not. In that case, clearly, the debt to her would still remain unpaid, and all her remedies against the debtor would still exist in full force. How does that case differ from this? Here, it is true, there has been a levy, as it is called, for part of the debt. But did that injure the debtor? Has he lost his property in consequence thereof? Has he even been deprived of it for a single day? Certainly not. The property was not taken out of the debtor’s hands. No other person was even put in charge of it. It does not, indeed, appear that the debtor was informed of the levy by the sheriff. He seems to have merely made what I have heard called “a sight levy:” that is, he merely looked at the property, and advertised it for sale. But before the sale, the United States made a levy on the same property; which, however, was no “sight levy.” The collector seized the property, placed a keeper or guard over it, and directed him to allow no person to take or interfere with any part of it. At the time he made the first levy, he found the property in the possession of Byrne. He would not have levied on it if it had been in the sheriff’s custody. He saw the sheriff *after he had made the seizure, and the sheriff then told him that he had made a prior levy. He never had any written notice of the levy by the sheriff. If he had found the property in the possession of the sheriff, he would have held it subject to the sheriff’s lien. It does not appear that Byrne gave the collector any notice that the property was subject to the sheriff’s levy, or claimed to have it applied to the payment of the taxes due the State, to protect his person from arrest. Perhaps he did not know that there had been such a levy; or, more probably, he considered it unimportant whether the property was applied to the payment of one or the other set of taxes, or in what order it was applied to their payment. Then, when the arrest was made,’,the matter stood, in every substantial respect, as if there had been no levy for any part of the taxes due the State. Even if the levy had been of an execution, it would not of itself have been a satisfaction of the debt. It is a satisfaction only when it produces the money, which is the fruit of the execution; or when it is so treated by the creditor, or the sheriff, who is in this respect his agent, as to occasion loss to the debtor, and then it is a satisfaction to the extent of such loss. If the property levied on be lost to the defendant by the misconduct or neglect of the sheriff, the execution is thereby satisfied to the extent of the value of the property; and the plaintiff can then only look to the sheriff for indemnity. Walker, &c. v. The Commonwealth, 18 Gratt. 13. So also here, if the sheriff had destroyed or wasted the property, or otherwise, by his misconduct or neglect in regard to it, had occasioned a loss to the debtor, the debt, to that extent, might, on the same principle, have been thereby satisfied. But such is not the case, and the matter stands precisely as if there had been no levy by the sheriff. It cannot be said that non constat there was any debt due to the United States for which a levy could be made. The presumption *is that there was such a debt; and, at all events, that if they have done any wrong to the supposed debtor, they will afford him ample redress. Byrne objected to the payment of the tax charged against him by the United States, and asked an abatement of it, which was refused by the department at Washington.

I have not deemed it material to enquire what remedies the United States may have had to enforce the payment of- taxes due to them, or whether they might have arrested the person of the debtor if he had not had sufficient property to satisfy their claim; as they certainly may in some cases, or at least in one case, as under the law, which was the subject of adjudication in the case in 18 Howard, before referred to. These laws are extensive and complicated, and I have not examined them fully. Whatever they may be, they cannot affect the result in this case.

I have examined all the authorities referred to by the counsel for the defendant in error, at least all of them I could find in the State library, and do not think that any of them are in conflict with the views I have maintained; or if any of them are, X think they are outweighed by the authorities I have relied on in support of those views. I deem it unnecessary to notice in detail the cases cited in the argument. Scales v. Alvis, 12 Alab. R. 617, was much relied on by the counsel for the defendant in error, to show what strictness is required in the proceedings where land is made liable for the payment of taxes when the debtor has no personal estate. In Blackwell on tax titles, p. 177, the author says: “The strongest case upon this point is that of Scales v. Alvis;” and yet there is nothing in that case which is in conflict with the views I have expressed in this. The facts in that case were, that the delinquent had a yoke of oxen in the county of value sufficient to satisfy the tax, but they were exempt by law from execution *for the debts of the owner. The court held the sale of the land void under these circumstances, the statute of Alabama providing that “where the delinquent has no goods and chattels within the county, then” his lands, &c., may be sold. The court, in their opinion, say: “It will thus be seen that the power of the collector to sell lands is limited to those cases where the delinquent has no goods and chattels within the county. There is no provision for cases where the collector is unable to find, or the delinquent is unwilling to surrender, goods. The power exists only when there are no goods; and conforming to the principle of the many cases on this subject, we are constrained to decide that as there was personal property of the delinquent within the county, the collector had no discretion to sell the land.” The court held that the statute exempting oxen from execution did not apply to taxes, and therefore that the oxen in this case were liable for the payment of the taxes due. There is a very important difference between the Alabama statute and our statute in this; that the former gives power to sell land only where there are no goods, -while the latter gives power to arrest the person “if the sheriff or collector shall be unable to find sufficient property to satisfy the taxes so assessed, and the same shall not be immediately paid.” But it does not appear in this case that the debtor had any goods when his person was arrested, much less that the sheriff was then able to find sufficient property to satisfy the taxes due. In the case of 18 Howard 286, before referred to, the court say that “the return of the marshal, that he had levied on the lands by virtue of the warrant, is at least prima facie evidence that his levy was not irregular by reason of the existence of goods and chattels of the collector, subject to his process.” So here, the arrest of the person of the delinquent is prima facie evidence that the sheriff could not find sufficient property to satisfy the taxes due at the time of the arrest, and '^indeed he expressly so declares in his return to the writ of habeas corpus, and there is not a particle of evidence to contradict the return in this respect.

Upon the whole, I think the judgment of the court below is erroneous and ought to be reversed, and the defendant in error remanded to the custody of the sheriff of Henrico county.

The other judges concurred in the opinion of the President.

The judgment is as follows:

The court is of opinion, for reasons stated in writing and filed with the record, that the said judgment of the Court of Hustings for the city of Richmond is erroneous. Therefore it is considered that the same be reversed and annulled, and that the plaintiff recover against the defendant her costs by her expended in the prosecution of her writ aforesaid here. And this court proceeding to enter such judgment as the said Hustings court ought to have entered, it is further considered that the said defendant be remanded to the custody of the sheriff and jailor of Henrico county, and that he pay the costs of the proceeding in the said Hustings court, and before the judge thereof; which is ordered to be certified to the said Hustings court.  