Cowles v. . Brittain ( 1822 )

The cause was argued at a former term by A. Henderson for the appellant, and at this term by Seawell and Wilson for the appellee. The distress to enforce the penalty authorized by the Revenue Act of 1818 does not come within the meaning of the terms, "writ or other process," which are forbidden by the act of 1777, ch. 18, to be executed on a Sunday. The prohibition is confined to such original or judicial process as may as well be executed on any other (207) day; but it results from the nature of this proceeding that it may be executed on any day, for as the persons on whom the law is meant to operate are changing from day to day the scene of their traffic, the penalty might frequently be evaded by neglecting to take out a license during the week and removing to another county on Sunday. The objection to paying the tax for want of a printed license is repelled by the positive terms of the act, which make paying the tax and obtaining a license a condition precedent to the right of peddling. The penalty is incurred by selling without a license, from whatever cause it may have proceeded that the seller did not procure one. Nor is the act imposing the penalty liable to the constitutional objection of depriving the party of the right of trial by jury. The mode of levying, as well as the right of imposing taxes, is completely and exclusively within the legislative power, which it is to be presumed will always be exercised with an equal regard to the security of the public and individual rights and convenience. The existence of government, depending on the prompt and regular collection of the revenue, must, as an object of primary importance, be insured in such a way as the wisdom of the Legislature may prescribe. There is a tacit condition annexed to the ownership of property that it shall contribute to the public revenue in such mode and proportion as the legislative will shall direct; and if the officers intrusted with the execution of the laws transcend their powers to the injury of an individual the common law entitles him to redress. But to pursue every delinquent liable to pay taxes through the forms of process and a jury trial would materially impede, if not wholly obstruct, the collection of the revenue; and it is not believed that such a mode was contemplated by the Constitution.

The Court has thought it necessary to consider whether this tax (208) might not violate the spirit of section 10, Article II, Constitution of the United States, which prohibits the State from laying any imposts or duties on imports and exports without the consent of Congress. But, upon reflection, this tax does not seem to come within the meaning of that part of the Constitution. It is certainly not a duty upon the articles imported, for they would have avoided the tax but for being vended in a particular manner. It is more properly a tax upon the calling or employment, which is a subject of internal police, which the Legislature has a right to regulate. It is true that foreign merchandise which has once paid an import duty to the United States may thus be incidentally subjected to an additional tax; but the same objection might be made to the tax on retail stores, licenses to taverns, and auctioneers, where foreign articles are vended. It has never been doubted that the States retain a complete power to raise their own revenue from every source that has not been surrendered to the United States and prohibited to the States, and the duties on imports and exports are alone of that description. The judgment of the Superior Court appears to be correct throughout, and must be affirmed.

BY THE COURT: Affirmed.

Cited: Range Co. v. Carver, 118 N.C. 332. (209)