Hawkins v. Dougherty

18 A. 951, 14 Del. 156, 9 Houston 156, 1890 Del. LEXIS 5

• Court: Superior Court of Delaware
• Decided: January 15, 1890
• Status: Published

Opinion

Comegys, C. J.

This case was well presented to the court by the counsel on both sides, and we suppose all that could be urged, pro and eon, in the controversy before us has been brought forward in the argument for our consideration. It is on some account unfortunate that it became necessary, as was supposed, to introduce it into the business to be tranacted by the court; for in all such disputes, no decision can be rendered that will be satisfactory to more than one class of the people. It is not improper, I think, to say that this seems to be a vital controversy to both the political parties in this State; the unwonted zeal which characterized the discussion on both sides indicating such importance very plainly. It would have been very agreeable to the court to be spared the necessity of giving a judgment which, in any event, (such is the temper of political partisans,) cannot satisfy the public generally, but only a part of it. However that may be, it is our duty, as the case is before us, to decide it as we best may, according to our ability; and we will trust that the better portion of those discontented with the decision will ultimately believe the view we take of it is the correct one.

Before entering upon a consideration of the principal question in the case before us, it is proper that we should determine whether the petition filed by the relator should be entertained by the court, in view of the objections set forth in the argument of the counsel for the defendant: First, that the relator has no practical interest in the subject-matter of his complaint, except in such a minute degree as will not justify the court in setting in motion its extraordinary remedy for alleged breach of public duty by an officer; and, second, that the application is made prematurely. With respect to the first of the objections it appears to be the law, as shown by the authorities on that point cited by the relator’s counsel, that any interest of a legal and direct character will warrant the issuance of an alternative mandamus, and ultimately the peremptory writ, unless ■sufficient cause upon the hearing of the rule be shown against it. The relator, John W. Hawkins, has an interest in the performance of his public duty by the respondent, to wit, the collection of all the tax committed to him to be collected, (he being, a taxable of the ■county, owning property within it,) and which duty he claims the respondent has not performed, but refuses to perform, it being alleged to be the receipt of all money offered to him for the payment of taxes and delivery of receipts therefor; the facts set forth in his application being that the respondent has refused, and announced his purpose to refuse, poll-taxes, and to deliver to attorneys in fact of taxables assessed for them, by whose hands the money was tendered, receipts for the money paid in the form prescribed by the act of April 10, 1873. The respondent, in his return to the writ; alleges that he has not refused to receive any poll-tax committed to him for collection, but only has declined to receive such taxes from" ■others than the taxables themselves, and to deliver to such others the receipts aforesaid; that is, he refuses to give the tax receipts to the attorney in fact of the taxables, and this under advice of counsel. He also says that he has always been ready, when not engaged otherwise officially, to receive taxes from all taxables applying to pay them, and give them the receipts provided for by law; and that he shall be so ready thereafter, (the time of the return,) until the March sessions of the levy court, then near three months ■off. This is the substance of his answer to the relator’s charges. But for the fact charged, and not denied, and therefore to be taken as true,—that the collector had refused to attorneys in fact of taxables the receipts for taxes provided for by the statute for taxes tendered by them,—there would have been no question to present to the court for the writ of mandamus. The relief sought depends, so far as anything at present appears, upon the question whether or not the collector was bound to receive the money of taxables, when tendered through an attorney in fact, made for the payment of constituents taxes, and deliver to such attorney the receipts therefor • he being authorized by the powers of attorney to receive them from the collector. Let me express it generally: Is a collector of county taxes bound to receive from an attorney in fact or agent of a voter his tax, and deliver to such attorney or agent a receipt for it, provided for by the third section of the act of April 10, 1873, aforesaid, entitled “ An act in relation to the collectors of taxes in this State ?”

There is certainly no provision of the law for the collection of taxes which requires of a collector that he shall, in the discharge of the duties of his office, (to collect taxes and give receipts for them,) deal with an attorney in fact or deputy of the tax-payer. As was said in the argument, the constitution and the law equally contemplate the payment of public taxes by the taxable in person; but there is no prohibition against doing it through an agent, because, as a general rule, (and payment of taxes is no exception to it,) whatever concerns one’s own private interest alone he may do through the assistance or agency of another. In fact, nearly everything pertaining to a man’s own affairs simply is oftener done by others than himself. No reason can be given why a taxable should not appoint an agent or attorney to act for him in the payment of tax assessments as well as other claims. This is his unquestionable right, and where, as in the. cases of appointment shown by the affidavits in support of the relator’s petition, this has been done, a collector would not only disregard his oath of office, but be guilty of a breach of his official bond, if he refused to receive the taxes tendered by an attorney in fact of a taxable, unless he collected the same against such taxable, in person or otherwise. A valid power of attorney, as those exhibited in this case are conceded to be by this respondent, would not only be a means of saving the collector the necessity of calling in person upon the taxable, but shield him also from the penalty of the law against improper delivery of the receipts; for certainly a tax receipt delivered to an agent authorized to receive it could not be treated, in a criminal prosecution under the aforesaid third section of the act aforesaid, as one made for an unlawful or fraudulent purpose. The clause was put into the act of 1873 to prevent delivery by a collector under just such circumstances as those mentioned in one of the clauses of the respondent’s answer. Still, as has been said before, there is no statute which requires a collector to receive one man’s taxes when offered by another acting as agent or attorney for him, although he would be liable on his bond for refusal to do this, the same as if the offer to pay had been made by the taxable himself. But this liability under his oficial bond is not one of which the taxable can avail, but only the public, through the agency of their servants, the levy •court commissioners. Although a man may make another his agent to receive a sum of money for him, there is no process known to .the law to compel payment to such agent; but the constituent of the attorney has his remedy by ordinary action to collect the debt himself. The right to pay to a properly constituted attorney may •exist; but yet the debtor cannot be compelled to pay him. So, in this case before us, the collector, not questioning the validity of the instrument appointing the attorney, had the right to act upon it if he chose, and would have been safe in doing it; yet he could not have been compelled to do it on refusal, for he had the option to collect from the taxable himself, of which no court by a mandamus can deprive him. Only when it is evident that he does not intend to collect in one way or the other can the law be invoked to aid the taxable. In case of refusal by the collector to allow an agent to pay his principal’s tax, such principal must pay his own tax. If he offer to do so, and the collector deny'him the opportunity, then he may come to this court, and he shall not be denied the relief he has the right to ask for. But we must not, upon the case hiade by the petition, interfere now to declare what the collector shall do ; there being yet about two months in which he may perform his duty in the collection of taxes. Not until the first Tuesday of March can a collector of taxes return his delinquent list to the levy court. Now the respondent, in his answer to the application for the writ, states, in effect, that he will receive the taxes of any taxable who will come forward to pay them at any time before March next, or before he returns his delinquent list. As the possession of a receipt for a county tax assessed to another, especially if that other be unable, from necessity, to spare one day from his work in which to pay it himself, gives the holder a certain control over the freedom of choice at an election, it is not altogether unreasonable that a collector desiring, as a good citizen, untrammeled exercise of the elective franchise, if he be inspired by such a sentiment, should decline to deliver such evidence of payment of tax to any but the real person assessed for it. We do not mean by this remark to be understood as expressing any opinion of the bona fides of the course, with respect to such receipts, taken by this respondent as such a collector, nor to give our approval to it; but simply to say that, supposing his course to be an honest one, no great fault should be found with it, for every truly patriotic citizen has a direct political interest that all voters should at least have the opportunity, without dictation or other trammel, of voting their real sentiments.

In the spirit of this, two several bills were introduced into the general assembly at its last session, to enact for Delaware a law upon what is known as the “ Australian system;” but thejjolitical managers of both parties caused these bills to be defeated,—the one (introduced in the house) by an adverse vote against it; the other (introduced in the senate) by a now-a-days improved mode of reference to a committee who never did, and were never called upon to, report it back for action by the senatorial body. Either of them would have rendered futile the efforts of persons to control the votes of electors by paying their taxes, or other more direct form of bribery. But this is digression. Coming back to the question before us as a legal one, for we have no right to consider what we cannot but think is its true nature, we must decide the point raised by the case,—whether a collector of taxes can refuse to receive a tax when offered to be paid by the agent or attorney of the taxable. There being no question of the right of a taxable to make an attorney pay his tax for him with the taxable’s money, a collector should not hesitate to receive it when offered to him for that purpose. To do so, would, as said before, be a violation of his official oath, a breach of his duty as an officer, and of the stipulations of his official bond. He would also be liable in an action by the taxable, if he suffered any damage or detriment by such refusal. The breach of trust would make him liable to public prosecution by indictment, and of the stipulations of his bond, by proceedings at the instance of the levy court commissioners.

In regard to giving receipts for tax, provided for as aforesaid, the collector, as a matter of duty, is bound to give that; but it is a receipt to the taxable, and he has the power to decline to give into any but his hands. As giving to him personally will be a discharge of such duty, he must be treated as having at least an option ° or choice as to whom it shall be delivered, and this court cannot interfere with that. Nor is there any real hardship in this to the taxaable considered as a voter; for his right to vote, supposing him to have the other qualifications, depends only upon his having paid the tax assessed against him, and not upon having the collector’s receipt in due form to show for it. Possession of it would be convenient, and save trouble at the polls, but the law does not in any ease make the production of a receipt for tax a sine qua non for the exercise of the ballot; on the contrary, it contemplates that parties paying taxes may not have taken a receipt, or have lost or mislaid one in fact taken ; for such a form of oath of payment of his tax, as well as of other qualification, is provided by section 19 of the general election law, (Rev. Code, 121,) in these words: “If a vote be objected to, its admission or rejection shall be determined according to the opinion of the majority of the judges, [of election ;] but either of the judges may require the inspector to administer to a person * * * offering to vote on the ground of having paid a tax, and being otherwise qualified according to the constitution, the following oath or affirmation: 1 You do solemnly swear [or affirm] that you are of the age of twenty-two years, and that you at this time reside in this hundred, and that you have not voted, and will not vote, on this day in any other hundred, and that you have resided in this county one month * * * before this election; and that you have within two years paid a county tax which was assessed at least six months before this election/ ” etc. Thus, although the law provides for a receipt to be given to the taxable on the payment of his tax, and the collector receiving the tax is bound to give it, yet possession of it, or existence of it even, is not essential to the enjoyment of the right of an elector under the constitution. Payment of the tax assessed is the essential thing, and» that may be shown, in the absence of a receipt, by proof of a witness to the payment or the oath or affirmation of the taxable. At the same time the payment must, and should be, in the interest of a fair election, with the taxable’s own money, and not that of another person; for if the constitutional requirement of payment of tax by the elector (“ have paid a county tax ” is the language) could be satisfied by payment of his tax by some one else with that person’s own money, then sanction would be given to bribery upon a large scale; payment of the tax of a voter being one of the means resorted to by all professional politicians to control the votes of poor men. As there are none so poor to be unable to pay a poll-tax, a taxable should pay it with his own money, and not be subjected to the control of another in the exercise of the franchise by the fact that such other has paid the tax for him. We think it safe to say that, in the great majority of instances of one man paying the tax for another gratuitously, the object at bottom is not charity at all, but to have possession of the voter’s right to the ballot, as a means of controlling the exercise of it in the interest of party. Free, fair elections, with an untrammeled body of electors, is what the welfare of the State demands; but such cannot be obtained if men are allowed to pay taxes for others with money of the payers, and possess themselves with receipts therefor.

The argument in this case has developed the fact that the notion is a prevalent one that exhibit of the tax receipt is required— is a prerequisite—for the use of the franchise. With that in the mind of the voter whose tax is paid for him, it is easy to see that his desire to vote (with many men a passiqjn) will induce him to do almost anything his generous-friend, who, at the cost of his own money, has paid the tax for him, will ask at. his hands in the way of voting. As, however, the task of a collector would be difficult to ascertain from a party, especially such as tender to him other people’s taxes, whose money he was using to pay another’s tax with, and no concern of his requiring of him investigation of the fact, he can, at least if he choose to do so, deliver the evidence of payment of the tax to the taxable himself, as one of the ways in which he can discharge his duty in that respect. Should he choose to adopt this course, he will, in all probability, soon realize the fact that offers to pay taxes of other people will fall off sensibly. The county exchequer would, no doubt, suffer to some extent; but a , means of bribery—control by one man of the franchise of another —would no longer be used to the same extent as before, and thus elections would better express the will of the people.

The rule to show cause why the writ of mandamus should not be issued is discharged.