Crosby v. Brown

This was an action against the defendant for seizing a pair of horses, harness, wagon and load of goods, belonging to the plaintiffs, and detaining the same against their consent. The defendant attempted to justify the seizure as assistant assessor of internal revenue.

The plaintiffs are copartners, doing business at Cuba, in Allegany county, which is within the 27th collection district of the State of Hew York, under the provisions of. the act of congress known as the Internal Revenue Act. They had two teams, consisting of a wagon and two horses, each in charge of an agent employed at a salary and engaged in peddling from such wagons on different routes. The team in question was accompanied by, arid under the *560charge of, Charles B. Wales, who was, as stated, employed by the plaintiffs as their agent in peddling, at a salary, and having no interest in the team or goods thereby conveyed. The accustomed route of Wales embraced the village of Olean, in Cattaraugus county, which is within the third division of the 31st district of the State of blew York, under the internal revenue law, and the defendant was, before and at the time of the seizure, assistant assessor of internal revenue, in that division, under the said act. The internal revenue act of June 1864, as subsequently amended, (§ 79,) classifies peddlers into classes, and designates those traveling with two horses or mules as of the second class, and provides that those so traveling shall pay a license tax of twenty-five dollars, unless they shall sell or offer to sell certain goods in the original packages, in which case they are to pay fifty dollars. The plaintiffs had paid for each of their teams a tax of $25, as peddlers of the second class, to the collector of the 27th district, in which their store was located, and taken separate receipts therefor, one of which was in the custody of, and carried by, Wales on his route. In July, 1868, the defendant found Wales with the establishment in his charge at Olean, traveling and peddling goods, and he thereupon demanded that Wales should produce and exhibit his receipt for the payment of the special tax prescribed in the act of congress. Wales thereupon produced and exhibited to the defendant the receipt which had been given to the plaintiffs by the collector of the 27th district, for the payment of twenty-five dollars, as a peddler of the second class, for the year ending May 1st, 1869. The defendant thereupon told Wales that the receipt thus produced was defective; first, because it did not mention the name,of Wales, but only the names of the plaintiffs; and' second, because Wales was, as the defendant claimed, selling foreign and domestic dry goods in the original packages to the same person or persons. That the special tax *561in such case was fifty dollars, and that the receipt should have been for the latter sum. The defendant then made no seizure, but informed Wales he should do so the next time he found him with that or a similarly defective receipt. Wales soon after informed his employers, the plaintiffs, what the defendant had said, and thereupon the plaintiffs made an application to the assessor of the 27th district, for a re-assessment of their license, and paid an additional twenty-five dollar’s on each of their said peddling establishments. The license was duly re-assessed, and the collector of the 27th district, on the receipt of these additional sums, and on the 19th day of August, 1868, gave two additional receipts dated on that day, in a form which appears to have been in use in case of re-assessment of a United States license, which, after reciting that whereas license So. — &c., granted to Crosby & Keller, had been re-assessed by the assessor for the district, in the sum of twenty-five dollars, which assessment had been returned to the said collector for collection, acknowledged the receipt of the amount of the said reassessment, and granted that the receipt (termed certificate) might be attached to said license, and when attached, should be a good and sufficient indorsement thereon. This receipt or certificate of re-assessment was not received by the plaintiffs till the 19th day of September, 1868. On the 18th of September, the day before the plaintiffs received the certificate and receipt for the amount of the re-assessment, the defendant again encountered Wales at Olean, traveling and peddling with the establishment under his charge, and thereupon demanded that Wales should produce and exhibit his special tax receipt. And thereupon Wales did produce and exhibit to the defendant the same special tax receipt which he had before, in July, exhibited ; neither he nor the plaintiffs at that time having any other applicable to the establishment under charge of Wales. The defendant thereupon inquired of *562Wales if his employers had applied for an additional license, and was informed by him that they had, and expected it every mail; that they had sent to the collector of the 27th district the additional $25, to make up the $50 required of a peddler of the first class. The defendant said that would not do ; that he must have the additional receipt before Wales could proceed, and thereupon, as such assistant assessor, seized and took possession of the establishment, including the horses, wagon, harness, appurtenances and goods, and reported the facts to the assessor of the 31st district. On the 20th of September, the day after the plaintiffs received from this collector the certificate of re-assessment, they exhibited the same to the defendant, attached to the first receipt which had before been exhibited to him, and demanded a release of said seizure, which the defendant refused without an order from the assessor. The defendant retained the property in his possession for about ten days, when it was released to the plaintiffs by order of said assessor. For the damages resulting for the seizure and detention for the ten days, the action is brought; and the referee reported in favor of the plaintiffs for the amount of the damages found by him to have been sustained by the plaintiffs by reason of such seizure and detention. I

The seizure in question is claimed to have been made under the 74th section of the internal revenue act, which provides as follows : “ Every person exercising or carrying on any trade, business or profession, or doing any act for which a special tax is imposed, shall, on demand of any officer of internal revenue, produce and exhibit the receipt for the payment of the tax; and unless he shall do so, he may be taken and deemed not to have paid such tax. And in case-,any peddler shall refuse to exhibit his or her receipt as i fcresaid, when demanded by any officer of internal revenue, said officer may seize the horse or mule, *563wagon and contents, or pack, bundle or basket, of any person so refusing.”

The section then proceeds to provide for a notice to show cause why the property so seized should not be forfeited, and that if no sufficient cause be shown, the assessor may. direct a forfeiture, and order a sale for the benefit of the United States. What cause can be shown to avoid the forfeiture is not indicated. The preceding section of the act (§ 73) provides a penalty for the carrying on of any trade or business, or doing any act, for the carrying on or doing of which a special tax is imposed, without the payment thereof as required by law, to wit, a fine of not less than $10, nor more than $500.

The power of summary seizure and forfeiture conferred by the 74th section upon the thousands of internal revenue officials throughout the country, to be exercised at their discretion, is an extraordinary power, in derogation of common right, and if it can be maintained consistently with that provision of the constitution, which provides that no person shall be deprived of his property without due process of law, or consistently with that other provision, which declares that the right of the people to be secure in their effects against unreasonable seizures, shall not be violated, (as to which we express no opinion,) it certainly can need no argument to show that the statute conferring it must be most strictly interpreted, and cannot be extended, as against the citizen, one iota beyond what the language of the act imperatively requires.

The defendant made the seizure, in this instance, upon the ground that the plaintiffs (or their agent, Wales) were doing the business without having paid the special tax required by law to be paid by persons transacting such business, and perhaps upon the further ground, that the certificate of the collector did not contai* the name of Wales the agent, but only the names of his employers who had paid the tax, and not upon the ground that Wales did *564not, upon demand, produce and exhibit the receipt which he had.

It is sufficient to say that it is upon such refusal only that the statute purports to authorize the seizure. The liability incurred for transacting the business without payment of the special tax, is announced in section 73. The extent of the liabilty, for that act, is a fine of |500; whereas, by a seizure of the property and its subsequent forfeiture, the pecuniary consequences may exceed, and in the present instance they probably would have far exceeded, that sum. It is only in case of contumacy, in refusing to produce and exhibit the receipt, which the person of whom its production is demanded has, that the seizure is authorized. And the power conferred to seize assumes that there is a receipt which may be produced.

The object of the provision is plain enough. Peddlers traveling through the country and encountering revenue officers, to whom they were unknown, might greatly embarrass the officials in the execution of the law, by captious and wanton refusals to exhibit the evidence of the payment of the tax, and yet render any prosecution for its non-payment abortive, and subject the government to useless expense, by proving on a trial, that the required tax had been paid.

If the peddler refuses to produce the evidence of the payment of'the tax, the officer endeavoring to enforce the law is left wholly in the dark, and cannot act intelligently on the question of the propriety of instituting a prosecution for t'he non-payment of the tax. It is manifest, we think, that the authority to seize the property was only intended by congress, to secure the production and exhibition to the officer of such receipt, or evidence of payment as might have been issued to the peddler by the collector. At all events, such is the import of the language, and it is not to be presumed that such would have been the only language *565used if it had been intended to authorize a seizure, in case the required special tax had not been paid.

If such had been the purpose of the provision, it could not have escaped the attention of the legislature, that there was a plainer and simpler mode of declaring it. In this case, the referee has found that the plaintiffs were not engaged in selling by one or more original packages or pieces at one time to the same person, and so were not required to pay a tax of more than $25. The respondent claims that this finding is erroneous, upon the evidence. The respondent furthermore claims that even if the tax required to be paid was only $25, still the seizure was justified, because the receipt which had been furnished by the collector, should have specified the name of Wales as the party who had paid the tax. We do not undertake to decide either of these questions, because we consider them wholly immaterial to a justification of the seizure. We put our decision upon the ground that Wales did, as is conceded, upon the demand of the defendant, produce and exhibit to him his receipt for the payment of the tax. The right to seize and forfeit is not conferred upon these officers on account of the insufficiency, in their opinion, of the amount paid as a special tax, or for any defect which they may think exists in the form, or substance, of the receipt which has been issued by the collector. They are not called upon to exercise the judicial power of determining such questions, but only to act upon a patent fact within their own cognizance.

The order of the county court of Cattaraugus county,reversing the judgment rendered on the report of the referee, must be reversed, and that judgment affirmed.

Mullin, P. J., and Johnson and Talcott, Justices.]