Waters v. State , 1 Gill 302 ( 1843 )

Archer, J.,

delivered the opinion of this court.

It is admitted by the demurrer in this case, that the collector has received all the taxes levied on the assessable property of Montgomery county, the non-payment of which furnishes the subject of this suit. Having thus admitted the receipt of the money, the collector, who is in the light of an agent of the State, could not be heard to urge in his defence to a suit, that the money he had received, was on account of taxes which the legislature had no constitutional power to impose. The question of constitutional authority to levy the tax would properly arise between the collector and the person taxed, before payment or after payment, between the State and such person.

But supposing that it is entirely competent for all the defendants to urge the unconstitutionality of the law imposing these taxes, we will inquire whether they are obnoxious to the objection.

In the argument of the counsel of the appellant, it is contended, that the tax in controversy, is one laid for the support of government. If it were conceded that this was the fact, we should by no means be prepared to pronounce an opinion against it, as violating the 13th article of the bill of rights. Before such a judgment could be formed, it ought to appear clearly to us, that persons taxable, are not made to contribute according to their actual worth in real and personal property. We should be bound to presume, in the absence of evidence, that the tax imposed by the act of 1831, ch. 281, was laid according to the provisions of the constitution. The legislature may have divided this tax among the counties according to the valuation of property in such local jurisdictions, and we must suppose, in the present state of the record, had such evidence before them as guided their judgment in this particular. There is nothing on the face of the law which indicates, that the legislature adopted an arbitrary rule in the apportionment of the tax without regard to the constitutional provision on the subject.

But the tax, as we apprehend, has not been laid for the support of government, but with a political view, for the good government and benefit of the community. The act of 1831, ch. 281, it is true does not declare, that the tax is imposed with a political view, but it is quite apparent from its provisions and the general course of legislation on this subject, that such was the design of the legislature. The residence of free negroes in the State, who should thereafter be manumitted, was to be dependant upon evidences of extraordinary good conduct, and if such should not be furnished, provision is made in case of their refusal to emigrate, for their transportation beyond the limits of the State. It thus appears they are treated as a vicious or dangerous population, and to lessen the number, provision is made by the law for the removal of all by their consent, and for the transportation of such as might be thereafter liberated, who refused to go, or did not furnish the evidence required of their character. In the same spirit, laws have been passed to prevent their migration to this State; to make it unlawful for them to bear arms; to guard even their religious assemblages with peculiar watchfulness. Other laws might be adverted to, for the purpose of shewing the light in which this population has been regarded by the legislature, but we deem it unnecessary; presuming that enough has been said to lead us to the conclusion, that a law passed for the removal of a population viewed in such a light, has been enacted with a political view.

By the act of 1794, ch. 53, a bond is required to be taken from the collector of the county charge, the condition of which, as prescribed by the law is as follows:

“That if the above bound-- shall well and faithfully “execute his office, and the several duties required of him by “law, and shall well and truly account for and pay to the jus“■tices of the levy court, or their order, the several sums of mo“ney which he shall receive or be accountable for by law, at “such time as the law shall direct, then the above obligation “shall be void.”

The bond upon which this suit has been instituted, conforms in all respects, to the bond required to be taken by the act of 1794, ch. 53, the condition of which we have just referred to.

By the act of 1831, ch. 281, sec. 8, it is declared, that the sums levied on the counties for paying the principal and interest of the sum by that act directed to be borrowed, for removing the free people of color, shall be collected in the same manner, and by the same collectors as county charges are collected, and directs bond to be taken with sufficient security from, such collector, “for the faithful collection and payment of the “money in the treasury of the Eastern and Western Shore, as “the case may be, at the time of paying other public monies to “andfor the use of the State.”

If by the act of 1831, ch. 281, a bond had not been directed to be taken of the collector, to pay'the tax to be collected under its provisions into the treasury, the words of the condition of the bond taken under the act of 1794, ch. 53, would probably have been sufficient to have entitled the State to a recovery for the taxes now in controversy.

But the contracts of the collectors and their securities, with the government, must be construed in reference to the terms used in such contracts, and by the laws under which they were made. As the law of 1831, ch. 281, has required another bond to be given payable'to the treasury^ we believe the legislature never looked to the bond given under the act of 1794, ch. 53, as furnishing any security for the collection of what is commonly called the colonization tax, directed to be levied by the law of 1831, ch. 281. The.parties must, in this view of the law, be considered as not contracting in reference to the latter law, or as contemplating any responsibility for the collection of that tax.

It is also worthy of remark, that the condition of the bonds required to be taken under these laws, demand payment of the sums collected to different officers. By the first, payment is to be made to the justices of the levy court, by the latter to the treasurer. From the above considerations, we are satisfied, that no recovery can be had on the bond in suit in this case, for the tax now in controversy.

We presume as the law directs, that a bond has been taken under the act of 1831, ch. 281, which could alone be sued on. If no such bond has been taken, the State is without remedy against the sureties on this bond.

JUDGMENT REVERSED.