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Vol. II.]

WEIMER V. BUNBURY.

[No. 1.

in the roll the sums assessed against them, and to retain in his hands the amount receivable by law into the township treasury for the purposes therein specified, and to account for and pay over to the county treasurer the amounts therein specified for state and county purposes, on or before the first day of February then next, and it is to authorize the treasurer, in case any person named in the assessment roll shall neglect or refuse to pay his tax, to levy the same by distress and sale of his goods and chattels. Ib. § 1003. The township treasurer must," within one week after the time specified in his warrant for paying the money directed to be paid to the county treasurer, pay to such county treasurer the sum required in his warrant, either in delinquent taxes or in funds then receivable by law." Ib. § 1018. The provision under which the county treasurer issued the process now in question is as follows: "If any township treasurer, ward collector, or other collecting officer shall neglect or refuse to pay to the county treasurer the sums required by his warrant, or to account for the same as unpaid as required by law, the county treasurer shall, within ten days after the time when such payment ought to have been made, issue a warrant under his hand directed to the sheriff of the county, commanding him to levy such sum as shall remain unpaid or unaccounted for, together with his fees for collecting the same, of the goods and chattels, lands and tenements of such township treasurer, ward collector, or other collecting officer, and their sureties, and to pay the said sums to such county treasurer, and return such warrant within forty days from the date thereof." Ib. § 1029.

It is perhaps not necessary to notice statutes further, except to say that under the charter of the city of Niles there are no ward collectors or treasurers, but the duty of collecting for the whole city is devolved upon the treasurer of the city.

The position taken by defendant in error is that the words "due process of law," made use of in the section of the Constitution last referred to, imply in the words of Judge Bronson "a prosecution or suit, instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt or determining the title of property." Taylor v. Porter, 4 Hill, 147. In this case there has been no prosecution or suit; the county treasurer has adjudged the case without a hearing, and issued final process to seize property in enforcement of his conclusion. Such summary process, it is said, which gives the party whose property is seized no opportunity to contest the claim set up against him, cannot be due process of law. There is nothing in these words, however, necessarily implying that due process of law must be judicial process. Much of the process by means of which the government is carried on and the order of society maintained is purely executive or administrative. Temporary deprivations of liberty or property must often take place through the action of ministerial or execu tive officers or functionaries, or even of private parties, when it has never been supposed that the common law would afford redress. One in whose presence a felony is committed is in duty bound to restrain the offender of his liberty without waiting for the issue of a magistrate's warrant; 4 Bl. Com. 292-3; and the traveller who finds the public way founderous crosses the adjacent field without fear of legal consequences. Holmes v. Seeley, 19 Wend. 507; Campbell v. Race, 7 Cush. 408. Our laws for the exercise of

Vol. II.]

WEIMER v. Bunbury.

[No. 1.

the right of eminent domain protect parties in going upon private grounds for the preliminary examinations and surveys. It may be said that in none of these cases is the deprivation final or permanent, but that is immaterial. The Constitution is as clearly violated when the citizen is unlawfully deprived of his liberty or property for a single hour as when it is taken away altogether. Estrays were at the common law taken up and disposed of without judicial proceedings; 1 Bl. Com. 297; and our statutes have always made provisions under which, if they were complied with, the owner of stray beasts might be deprived of his ownership by ex parte proceedings not of a judicial character. Where an individual creates with his property a public or private nuisance, the common law permits the citizen who suffers from it to become "his own avenger, or to minister redress to himself;" 3 Bl. Com. 5-6; and he may even destroy the property if necessary to the removal of the nuisance. Rung v. Shonberger, 2 Watts, 23; Inhabitants of Arundel v. Mc Culloch, 10 Mass. 70; Wetmore v. Tracy, 14 Wend. 13. The destruction by the act of the party is as lawful as if it had been preceded by a judgment of a competent court; the only difference being that the party, when called upon to justify the act, must in the one case prove the facts warranting it, while in the other he would be protected by the judgment. No one probably would dispute the levy of distress by a private individual for rent due him, being due process of law in the cases in which the law permits it. 3 Bl. Com. 6. It is true that the party whose property has been distrained may contest the proceedings in the common law courts, but he fails if they prove to have been regular. The military law affords abundant illustration on this point. The principles on which it is administered have but little in common with those which control judicial investigations, and the process under which men are restrained of their liberty under it is sometimes very summary and even arbitrary. But this law is just as much subject to the constitutional inhibitions as is the Code of Čivil Remedies. See Ex parte Milligan, 4 Wall. 2. But the proceedings for the levy and collection of the public revenue afford still better illustration. Almost universally these are conducted without judicial forms, and without the intervention of the judicial authority, the few cases in which statutes have required the action of courts being exceptional. Where such action is not required, the proceedings are regarded as purely administrative, and any hearing allowed to parties in their progress has not been in the nature of a trial, but as a means of enlightening the revenue officers upon the facts which should govern their action. This has been so from time immemorial, and it has never been supposed that the tax payer had a constitutional right to resist the tax because he had not had judgment against him on a judicial hearing to fix its amount.

There are, unquestionably, cases in which expressions have been used implying the necessity for a common law trial before, in any instance, a man can be deprived of his property; but they will be found, on investigation, to be cases calling for no such sweeping statement. If any court has ever decided that judicial proceedings are of constitutional necessity in appropriating property under the power of taxation, the case has not been brought to our attention and has been overlooked in our investigations. This would be most extraordinary if the necessity existed, for tax

Vol. II.]

WEIMER V. BUNBURY.

[No. 1.

systems similar to our own have prevailed ever since our government was founded, and it cannot be said that tax laws are usually so popular as to disarm every person of any legal objections which he might suppose available to relieve him of their burdens. On the contrary no laws are contested more vigorously, and with none are people more critical in looking after defects and infirmities. It may be safely asserted without fear of contradiction, that if the collection of the revenue could only be made through legal proceedings, the true principle would not have been left to so late a discovery, but the wheels of government would long ago have been blocked by litigious parties until an entirely new system could be substituted. And it need hardly be said that any new system in which courts should be made the administrators of the revenue would necessarily be so cumbrous and so subject to impediments and delays as to make a constitutional provision requiring it a great public inconvenience.

There is nothing technical, or, we think, obscure, in the requirement that process which divests property shall be due process of law. The Constitution makes no attempt to define such process, but assumes that custom and law have already settled what it is. Even in judicial proceedings we do not ascertain from the Constitution what is lawful process, but we test the action of courts by principles which were before the Constitution, and the benefit of which we assume that the Constitution was intended to perpetuate. If there existed before that instrument was adopted well known administrative proceedings, which, having their origin in a legislative conviction of their necessity, had been sanctioned by long and general acceptance, we are no more at liberty to infer an intent in the people to prohibit them by implication from any general language, than we should be to infer an intent to abridge the judicial authority by the use of similar words. The truth is, the bills of rights in the American Constitution have not been drafted for the introduction of new law, but to secure old principles against abrogation or violation. They are conservatory instruments rather than reformatory; and they assume that the existing principles of the common law are ample for the protection of individual rights when once incorporated in the fundamental law, and thus secured against violation.

We are, therefore, of necessity driven to an examination of the previous condition of things if we would understand the meaning of due process of law, as the Constitution employs the term. Nothing previously in use, regarded as necessary in government and sanctioned by usage, can be looked upon as condemned by it. Administrative process of the customary sort is as much due process of law as judicial process. We should meet a great many unexpected and very serious embarrassments in government if this were otherwise. The words, it has very justly been said, "were intended to secure the individual from the arbitrary exercise of the powers of government unrestrained by the established principles of private rights and distributive justice." Per Johnson, J., in Bank of Columbia v. Okely, 4 Wheat. 235. It has been said with special reference to process for the collection of taxes, 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 considered an exception to the right of trial by jury, and is embraced in the alternative law of the land."" State v.

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Vol. II.]

WEIMER v. BUNBURY.

[No. 1.

Allen, 2 McCord, 56. In High v. Shoemaker, 22 Cal. 363, the same doctrine was held in a revenue case. In Rockwell v. Nearing, 35 N. Y. 308, which is quoted for defendant in error as sustaining his position, the opposite view is very distinctly taken. "There are," says Porter, J., "many examples of summary proceedings which were recognized as due process of law at the date of the Constitution, and to these the prohibition has no application." Yet the same judge in a previous portion of his opinion had quoted with approval the general language of the other cases, which might be understood as implying the necessity of a judicial hearing to due process of law; and the case is an illustration of the danger of deducing general principles to govern one class of cases from isolated expressions made use of in deciding another class. A day in court is a matter of right in judicial proceedings, but administrative proceedings rest upon different principles. The party affected by them may always test their validity by a suit instituted for the purpose, and this is supposed to give him ample protection. To require that the action of the government in every instance where it touches the right of the individual citizen shall be preceded by a judicial order or sentence after a hearing would be to give to the judiciary a supremacy in the state, and seriously to impair and impede the efficiency of executive action.

But it may be argued that the warrant in question is not a necessary or usual process under revenue laws. It cannot be said, however, that summary process to enforce payment by a defaulting collector is very unusual. The territorial act of 1833 required the auditor to report such a defaulter to the governor, and unless he settled up and paid all arrearages within thirty days after the report, he was to be removed from office. Code of 1833, p. 169. In the Revised Statutes of 1838, p. 87, § 12, the provision was introduced for the issue by the county treasurer of a warrant to the sheriff in the nature of an execution against the collector. This provision had been in force for twelve years before the present Constitution was proposed, and we are not informed that its validity had ever been questioned. Similar statutes had existed in other states. In Massachusetts and New York, from which we derived the larger portion of our statutes, they had been in force for a period dating back of the organization of our state government, and in neither state does it seem to have been disputed, that each summary process was "due process of law." The legislature of this state by providing for it in repeated enactments have shown their conviction of its necessity; and the constitutional convention, though they made several express provisions to insure justice and equality in matters of taxation, passed this legislation by in silence. We think, therefore, that summary process to enforce payment by a delinquent collector cannot be held forbidden.

What makes us pause upon this statute is not the general principle which is relied upon, but some peculiarities in the statute itself, which distinguish it from that of 1838 in a very marked degree. Under the statutes of 1838, p. 85, § 6, the county treasurer had in his office a record of the various collectors, and of the delivery to them of their several tax warrants, so that when a return failed to be made he had record evidence of the default upon which to issue his precept. Under the present statute the county treasurer has no such evidence. He takes bond from the

Vol. II.]

WEIMER . BUNBURY.

[No. 1.

township treasurer, and the latter subsequently receives the tax roll from the supervisor. When the time arrives for making return, if it fails to be made the county treasurer cannot officially know whether it is the supervisor who is in default in not delivering the roll to the township treasurer or the latter in not collecting and making return. He may inquire and obtain hearsay evidence, but there is nothing in the statute to indicate that under any circumstances he is to withhold his warrant if the return fails in being made, even though he be informed that through the neglect or blunder of the supervisor a roll capable of enforcement has never come to the township treasurer's hands. He is then to assume the township treasurer to be in default, and proceed to execution accordingly. But there can be no basis for the assumption that the default is that of the treasurer except the presumption on behalf of the supervisor that a public officer has performed his duty, and it would be a curious jumble of presumptions if we were to presume that one public officer had failed in his duty because we could not presume that another had. The question would be very pertinent why the presumption, if indulged at all, should support the supervisor rather than the treasurer; and this inquiry would be specially forcible in this case, where the township treasurer must wait the action of two supervisors, either of whom retaining his tax roll might place the treasurer in apparent default. It must be confessed there were statutes in some other states previous to the adoption of our Constitution which made as little provision for the protection of the rights of the treasurer and his sureties as this does; but it seems to me an anomaly that execution should thus issue without the officer issuing it having before him record evidence of any description whatever of the facts which show default, and where consequently he must proceed upon hearsay, or upon a mere presumption that another officer has performed his duty, when the same presumption, if indulged at all, should protect the treasurer himself. And I think it will be found on investigation that these statutes have had their origin in provisions whereby the same officer who issued the tax warrant and to whom it was to be returned was the one authorized to issue summary process, when the warrant which he had himself issued and of which he kept a record in his office failed of being returned, and that they have assumed their present form through inadvertent legislation, when more complex provisions and a larger official force were found necessary in tax proceedings. But it is not, perhaps, so important to determine this as it is to call attention to this legislation as being in its present form objectionable, whether capable of being sustained or not. It would seem that where the county treasurer does not himself issue the tax warrant, the least that can be required is that he should have in his office the township treasurer's receipt as evidence of its delivery to him.

The circuit judge held the statute constitutional, but that plaintiff in error was not justified by its provisions. If he was right in this, any consideration of the constitutional question might have been waived, upon the ground that a legislative act should not be declared unconstitutional unless the point is presented in such form as to render its decision imperative. Frees v. Ford, 6 N. Y. 177; Hoover v Wood, 9 Ind. 287; Mobile & Ohio R. R. Co. v. State, 29 Ala. 273. It is not imperative so long as it appears that the case can be disposed of in only one way whether the law

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