
    Pierce Butler against Benjamin Baily.
    
      Charleston District,
    
    1800.
    Taxes due to the state are to be paid in preference to all private debts ; they create a lieu which is pa-raraount to every other demand whatever. Arid where a man doesnotmake á return of his taxes agreeably to the general tax act, he is liable to be doubly taxed, and his estate is liable for the whole of the double tax.
    RULE on sheriff to shew cause why he should not pay-over moneys he had in his hands, arising from the safes of defendant’s estate, towards satisfaction of a judgment he had against the defendant.
    The Attorney-General, on behalf of the sheriff,
    shewed cause and claimed the moneys in the sheriff’s hands on behalf of the state, for the arrears of several years’ taxes due from defendant, amounting to 220/. 8.9. 9d. sterling, on the ground that the state had a prior lien on defendant’s estate, and must be paid in preference to all private individuals; he quoted the act for regulating the duty of collectors and assessors of taxes, &c. passed in 1788, which “ imposes dou- “ ble taxes on all persons, who should refuse or neglect to “ make a due return, on oath, of all their taxable property ; “ and authorizes the assessors to make the said assessments “ according to their judgments, and the best information “ they can get of a defaulter’s property.” That the defendant, Mr. Baily, had been a defaulter for many years, and had neglected to make a return of his taxable property, until his arrears ran up to 110/. 4s. 4 l-2<r/. when the assessors doubled that sum to 280/. 8s. 9d. agreeable to the terms of the act; for which sum, the collector of the district issued his warrant under his hand and seal, which was lodged with the sheriff for collection district. The sheriff had, however, seized and sold the property of defendant in the mean time under Major Butler’s execution, and had the money in his hands, so that the question was, whether the state,or the plaintiff, Major Butler, should have the money.
    The Attorney-General contended,
    that the state had a lien on a man’s property for the payment of taxes, paramount to any other claims whatever, or demands of any private.individual whomsoever. That it was the price of protection, which originated in the very nature of the social compact, and without which, government could no.t subsist a moment; withdraw that support and government was at an end. It was, therefore, upon these principles, that the state claimed a preference for taxes to all claims or demands whatever.
    Mr. Hunt, for the defendant,
    argued, that admitting that defendant’s property was bound in the first instance for the payment of taxes, it could be only for one year; as the tax collectors were bound to settle with the treasury annually, under a penalty of 300/. sterling. That the tax collectors were appointed under the authority of the state, and were to be considered as its officers, and they were punishable for neglect of duty, in not selling the defendant’s property annually, or so much thereof as was sufficient to pay off the taxes every year ; otherwise purchasers and creditors might be deceived by an indefinite lien on a man’s property for any length of time, and that, too, to an amount that cannot be well calculated upon. That the arrears of taxes in this case were for a number of years back, and a great part of them were due on property which the defendant had since sold and disposed of; and it would be very hard indeed, to make the little pittance he had left, liable for the whole of those arrears ; at all events, he said, it should be made liable only for a just and due proportion of the property the sheriff had sold. He further argued, that even admitting that the lien had an indefinite retrospective operation, and that the portion of defendant’s estate left was considered as liable, it should not be construed so as to make the estate chargeable with more than the sum really due, 110/ 4s. 4 l-2t/. That the double tax was only intended as a penalty on defaulters, in not making their returns agreeably to law ; and that like every other penalty, it should be discharged upon the performance of the condition annexed to it, which he said, in the present oase, would be the payment of the surá. actually due, and any expenses which had accrued.
    Mr. Galllard, also for the defendant,
    observed, that what strengthened the construction given by his colleague, of the lien not binding longer than one year, was, that the tax bills of this state were passed annually at every session of the legislature, and were intended to operate only for one year, and that the tax collectors were in duly bound to compel payment, and settle with the treasury every year ; and it would be wrong to permit the state to take advantage of the laches of its own officers, to the prejudice of bona jide purchasers and creditorsthey ought to be made liable out of their own estates for their omissions or neglects, and the de Sciences of taxes made good from them ; that this kind of secret indefinite lien on all a man’s property, might, if once established, be very dangerous to the community ; as by that means, a. tax collector may take away the property of a judgment creditor, at the moment when he was about to reap the fruit of his execution ; when by due and reasonable diligence before, the taxes might have been collected, or probably there might still be property left, which might be found out by due diligence ; and what made the inconvenience of purchasers and creditors greater, was, that there was no public office established wher e creditors or purchasers could get the necessary information.
    The Attorney-General, in reply.
    There is nothing in the tax act, or any other act or law whatever, which limits the lien for taxes to one year only ; this lien, therefore, from the very nature of it, must be indefinite, or in other words, it . must remain until paid, as long as there is any thing to pay with ; the limitation act, however it may run against individuals, will never run against the rights of the state. It is true, that what is called the tax bill for the supplies of the state, is passed annually, but this annual tax bill only fixes the quantum, and on what species of property the taxes shall be raised. The general tax act of 1788, regulates the mode and manner of making the assessments and collections of the taxes, and this is a permanent law which comes in aid of the fundamental principles of government, and declares how and in what manner, all persons concerned in the laying on, and getting in the taxes, are to be chosen and appointed, and how their conduct is to be regulated ; and also the mode and manner of making the returns of taxable property to the collectors, an-i in general regulates the principles by which ail future taxes are to be collected, and the conduct of the officers are to be governed : but this act fixes or lays on no tax on any property whatever; it only regulates the general principles of apportioning, collecting and bringing into the tieasury, those contributions which every man was previously bound to pay, for the support of the government of the country un der which he lives, and is protected. By the mode established by the general tax law, the assessment is made on the whole of a man’s estate, real and personal, on the aggregate, and not on each particular part of it. It would be very inconvenient, if not entirely impracticable for the assessors and tax collectors, to be riding over the state, hunting out every particular specific portion of a man’s real and personal estate, which might from time to time be liable to taxation, in order to fix an assessment on each part; hence it must be evident, that the assessment must be on the whole or aggregate ; and hence it results, that the whole or any part which can be most conveniently found, or come at, must be liable for the whole amount due. As to the inconvenience, which it was s?,id purchasers or creditors might be subjected to, this might easily be removed, by going to the tax office, or the treasury or comptroller’s office ; in all which, they might easily satisfy themselves whether a man’s taxes have been paid off or not, and if they did not take that trouble, it was their own fault. That with respect to the tax collectors not doing their duty, they might either be made liable by a suit on the behalf of the state, on their bonds, or any private individual might have his private remedy by a special action on the case, for any damages he might suffer by their neglects or omissions. But their laches in not performing their duties, was not to deprive the state of this high prerogative right of doing itself justice, whenever an opportunity presented it for that purpose. • That so transcendant was this right, that neither length of time, nor the act of parties, can ever bar it of so high and necessary a power. He further contended, that the double tax for neglect of making a due return, imposed by the act of IV88, could not be construed as a penalty, defeasible on the paying what was originally due ; but an increased tax, which becomes absolutely and unconditionally due and payable, after the day limited by law, for making the necessary return. It was like a fine imposed on refractory citizens, for doing, or not doing, what the law prohibits or enjoins ; and the policy of this law was wise in itself, as it was easy to see, that it might frequently happen, that many designing citizens would conceal their property for a long time before they made a proper return on oath, and then at last, only pay what they ought annually to have done; by which means, the revenue of the state might frequently fall short of the exigencies of the government. This part of the act was to compel every man to come forward once a year, honestly and fairly to bear and pay his proportion of the public burthen, whatever it might be, more or less ; that they might not fall partially on the punctual part of the community, but on all without distinction, agreeably to the property he possessed. That this had been found from experience, to be one of the best clauses in the act, as it had a tendency to enforce itself, by the nature and certainty of the penalty, that hung over every delinquent’s head, and if he incurred it, he had himself to blame, and what made it the more efficacious was, that there was no defeasible clause in it, or power given to the courts of justice, or any of che public functionaries-to remit a dollar of it; the collectors under a large penalty xvere bound to pay it into the treasury, and nothing could draw it out, but a public law of the state.
   The judges were unanimous in this case, and delivered their opinions separatim, at considerable length ; but when condensed, they were to the following effect:

That the soil of every country, and all the property of the inhabitants thereof, by the nature of the social compact, and the fundamental principles of every well regulated government stood pledged, and were liable for the support and defence of the state, and its government, to the extent which might be necessary for such defence and protection ; and without such aid and assistance, die government could not be maintained and kept up, nor the state protected. In return for which, the government oh its part, was bound to support and protect every individual citizen within the limits of the state, in all their rights and privileges, in peace and tranquillity; and in order to accomplish this great end effectually, there was nothing which it ought not to hazard, either of blood or treasure, which might tend to secure and perpetuate these inestimable blessings. Hence, the origin of those great and reciprocal duties of allegiance and protection, and hence also, the origin of taxes and taxation.

That from these principles, it was clearly deducible, that the payment of taxes, or the contribution of those aids necessary to defray the expenses of the government, must of necessity be a paramount obligation, and of course take place of all private contracts between citizen and citizen, of what nature or kind soever they might be. That so high was this obligation to the public, that it might well be compared to a mortgage, pro tanto, which created a lien on every man’s real and personal estate, for his share of the public taxes, according to the rules of appointment which the law had established.

This then being evidently the case, it was clear that the state had a prior right or preference, to any individual citizen, for the amount of the taxes due and unpaid by every delinquent whatever ; and as these taxes were imposed generally on the whole of a man’s property, it was equally clear, that any part of ii that could be come at was liable for the payment of those arrears.

That with respect to the double tax, this court had no right or authority to consider it as a penalty defeasible, on the payment of what was originally due ; on the contrary, it appeared to be an increased tax, after the time limited for making the annual return; that the law was positive upon the subject, and enjoins it as a duty on the collectors to issue their warrants and levy the same, and pay it into the treasury. That this court had no right to interpose between the collectors of the public revenue and the state treasurers ; no such power was given by the act of 1788, nor was there any principle of public law to warrant such an interference.

The rule was made absolute on the sheriff, to pay the wholev amount of taxes mentioned in the collector’s warrant to the treasurer, and the residue, if any, towards the plaintiff’s execution.

Present, Waties, Bat and Johnson.

A7". B. A number of cases after this decision, were taken into the court of equity for relief from the double tax, but the parties were refused it, upon the principle of the above decided case.  