State v. Piazza , 66 Miss. 426 ( 1889 )

Arnold, C. J.,

delivered the opinion of the court.

If the tax had been imposed or the liability incurred, and no method had been provided by law for its collection, it might well be held, that the legislature contemplated its enforcement by the ordinary remedies, and, from necessity, resort might be had to-appropriate legal remedies. The doctrine of the maxim, ubi jus,, ubi remedium, would then apply.

But that is not the case before us. On the contrary, the statute which creates the tax or liability, provides a special remedy for its-collection. Code, § 1109. In such case, it is generally held, that the remedy provided by statute is exclusive, and that an action does not lie for the recovery of the tax. Camden v. Allen, 2 Dutch. 398 ; Carondelet v. Picot, 38 Mo. 125; Packard v. Tisdale, 50 Me. 376; Turnpike Corporation v. Gould, 6 Mass. 40; Crapo v. Stetson, 8 Met. 393 ; Durant v. Supervisors, 26 Wend. 66 ; Shaw v. Peckett, 26 Vt. 482 ; Board of Education, etc., v. Old Dominion, etc., 18 West Va. 441; Lane Co. v. Oregon, 7 Wall. 80; Cooley on Taxation, §§ 15, 16.

On general principles and the great weight of authority, the-judgment of the lower court was right. But this view is conclusively strengthened by the fact that § 294 of the code, on a kindred subject, in addition to the other remedies specified for the collection of the privilege taxes therein referred to, expressly authorizes suit to be brought for the same; while § 1109 of the code, which fixes the liability for selling or giving away liquor without license, and makes it indictable and punishable upon conviction, also requires the sheriff to assess and collect the tax, but does not authorize suit to be brought for it. It is immaterial to inquire why the legislature authorized suit in one case, and not in the other. Beyond controversy, that is what was done, and unless the principle of the maxim expressio unius exclusio alterius is abolished, a suit may be maintained in the one case, but not in the other. There is no place for doubt or construction in regard to the matter. The legislative will is as clearly shown by the omission to legislate on a given subject, as by the use of the most explicit and positive language. And though there may be a plain casus omissus, it is beyond the power of courts to supply it. Sedgwick on Stat. and Const. Law 365; Ripley v. Gifford, 11 Iowa 367.

It has not been the policy in this state to collect taxes by suit, and the criminal law has been deemed sufficient and is relied on to prevent the sale of liquor contrary to law. Code, chap. 39.

If the plain, simple and inexpensive statutory method of collecting taxes may be disregarded, and the district attorney may become tax collector, at pleasure, by suit at law, in one case, why may it not be done in all cases ? And to what consequences would such new and dangerous principle incorporated into our system of taxation, by judicial interpretation, lead? What is the limit of time within which such suits may be brought ? To what statute of limitations would the state be subject ? How long would the citizen be left to the mercy of spies and informers, and exposed to the vexation and cost of legal proceedings in reference to a burden which is generally sufficiently onerous ?

We recognize the rule that laws are intended primarily for the government of individuals and not for the state, and that the state is not bound by statute, unless it is expressly named therein, or is included by necessary implication. The English precedents on the subject, are based on the old feudal ideas of royal dignity and prerogative, and have been adopted to some extent in this country. But there is no good reason for exempting the state, merely because it is the state, from the operation of general rules of law, or the fair interpretation of language. Sedgwick on Con. Stat. and Const. Law 28, 107. Confidence in this view is not shaken by the unqualified dicta on the subject, in The City of Dubuque v. Ill. Cent. R. R. Co., 39 Iowa 56, and in Savings Bank v. U. S., 19 Wall. 227.

The test, in every case, in which the question whether or not the state is included in the language of a statute has to be determined, cannot be a mere general rule, arbitrarily applied, one way or the other, but the object of the statute, the purpose it was to serve, the mischief it was intended to remedy, and the consequences that are to follow, must be considered. Endlich on Inter, of Statutes, § 167 ; Com. v. R. R. Co., 3 Cush. 25 ; Green v. U. S., 9 Wall. 655.

There seems to be no room for excluding the state in the case at bar, where the statute was passed for its benefit, and declares both its right, and the remedy for its enforcement. Com. v. Garrigues, 28 Pa. St. 9.

Affirmed.