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ing and pauperism, is alike unjust and unwise. The exemptions at common law were of such articles as were requisite to keep families from suffering and save them from poverty, and the subjects of exemption should only be extended as a change occurs in the social condition and requirements of the people.

It is best for the debtor that he should feel the necessity of a performance of his contract. "It stimulates," says Chancellor KENT, "to industry, economy, temperance and wakeful vigilance, and tends to procure credit for the honest poor man at moderate prices for the articles needed by him in his family or for purposes of business."

But these laws being dictated by motives of public policy, should not be subject to waiver by the debtor. If they are, they will be of no avail in the most necessitous cases. Few legislatures, however, have recognised this principle, and in its oversight they have shown the erroneous views which have chiefly induced the enactment of exemption laws.

But of those states which have passed retroactive laws, and yet claim them to be constitutional as only affecting the remedy, whilst they exempt property to such an amount as enables debtors to live in comfortable idleness, we cannot speak in terms sufficiently reprehensible. They surely betoken a sorry condition of the moral sense of those who enact them, if not of the legislator's constituents, "and are justly chargeable," to again quote BRONSON, C. J., "with some one of those vices which when committed without the sanction of legal enactments never receive a milder name than fraud, and are sometimes denominated theft and robbery."

Laws of this character do nothing less than take the property of one man without his consent and give it to another. Any state which, like Georgia, has only one-third of the territory to which her citizens are entitled under her retroactive exemption laws, is not likely to excite the envy of just minds.

There is hope, however, for even such a Commonwealth when among her own citizens are found those who are the first and most earnest in their denunciation of such legislation.

ISAAC S. SHARP,

Philadelphia.

RECENT AMERICAN DECISIONS.

Supreme Court of Michigan.

MERRILL v. HUMPHREY, AUDITOR-GENERAL, et al.

If the supervisor of a township, in making the assessment of property for taxation, shall fraudulently, and with a view to impose upon an individual more than his just proportion of the public burden of taxation, assess the property of such individual above its value, and relatively above the other assessments on his roll, the party aggrieved may have an injunction to restrain the collection of the excessive tax.

A property-owner seeking to enjoin the collection of taxes on the ground that the amount is excessive, should show by his bill, as near as may be practicable, what amount is just, and what excessive, and he should pay to the proper officer the amount which he concedes to be properly chargeable against him. In the case of a personal tax, a preliminary injunction should not be awarded in such case, except upon the terms that the whole amount in dispute be paid into court, or proper security given for its ultimate payment if it shall be decreed by the court; and in any other case, the officer allowing an injunction has a discretion to require such security, which it may sometimes be proper he should exercise.

He who seeks equity must do equity; and he who seeks to enjoin the collection of an excessive tax, must be required as a condition of relief to pay such amount as is just.

Where, therefore, a bill was filed to restrain the collection of an excessive tax, and the court found the tax to be excessive, and thereupon made a decree perpetually enjoining the collection not only of the amount that was excessive, but of the whole tax, it was held that the decree was wholly unwarranted, and it was thereupon reversed.

THIS was a bill filed to restrain the auditor-general and the county treasurer of Osceola county from proceeding to sell the lands of complainant, situated in said county, for the taxes assessed thereon for the year 1869. The complainant alleged that the supervisors of the several townships in which his lands were situated, fraudulently assessed them above their value, and relatively very much beyond the assessment of other property, for the purpose of relieving resident tax-payers from their proportion of the taxes. He averred that he had ever been ready and willing, and by his bill offered to pay his just proportion of said taxes whenever the same should be properly and legally assessed, but he submitted that the tax so assessed was unjust, inequitable, and illegal, and prayed a perpetual injunction against proceedings for their collection. The attorney-general demurred to the bill, and the court below overruled the demurrer, and made a decree that the tax complained of be set aside, cancelled, and declared roid, and that the lands be declared free from the lien thereof.

F. H. Canfield, for complainant.

Dwight May, Attorney-General, for defendants.

The opinion of the court was delivered by

COOLEY, J.-It is impossible to sustain this decree. Accepting to the fullest extent, as we must upon demurrer, the truth of the matters alleged in this bill, there is no equity in relieving the complainant altogether from the payment of taxes upon his lands. He owes to the state, county, and township the same duty, and is under the same obligation with every other property-owner therein; and the attempt by an official to exact from him more than is just, will not excuse him from bearing the burden so far as it is just. The state must give him a remedy against oppression, but it is not bound to reward him because a wrong has been meditated which had him for its object. The state cannot warrant the integrity of every inferior municipal officer, in whose selection its citizens generally have had no choice; and if it could, its responsibility ought not to exceed that which an individual would be under in the like circumstances, which could only be to make good to the party what he may have suffered by the wrong, which, in this case, at the time the decree was rendered, was nothing. Certainly the offer of the complainant to pay what is just, cannot excuse him altogether from making any payment. The most that he can claim under any circumstances is, that the state shall prevent the meditated injury, and relieve his land when its proper burden shall have been discharged. It follows that the decree appealed from must be reversed.

It remains to be seen whether the case made by the bill would have entitled the complainant to any relief whatever; for if it would, it may be proper to shape our decree differently from what we otherwise should. The attorney-general insists that an assessment for the purposes of taxation is a proceeding quasi judicial in its nature, the valuation being confided to the judgment and discretion of the assessor; and that as the statute has provided for no review of his decision by the courts, it is not competent to appeal to them for redress upon allegations impugning the fairness of his conclusions. And he very properly and strongly sets forth the evils that may arise if the process of injunction shall be employed to stay the collection of the public revenue whenever the judgment of the tax-payer regarding relative values may so

VOL. XX.-14

far differ from that of the assessor that he is led to suspect favoritism and partiality.

That this process may be employed to an extent that shall prove embarrassing to the public authorities is quite possible, and that fact should make us hesitate long and consider the subject fully in all its bearings before sustaining a jurisdiction that shall appear in the least doubtful or unnecessary to the due protection of individual rights.

And we agree fully with the attorney-general that the courts. cannot sit in judgment upon supposed errors of the assessor, and substitute their own opinions for the conclusions he has drawn, where it is his judgment and not theirs to which the subject has been confided by the law.

But it remains to be seen whether what is sought here is a review of the assessor's judgment. The charge is that the several supervisors have purposely assessed the property of the complainant beyond its value and above the assessment of other persons, with a fraudulent intent to compel the payment by him of an undue proportion of the public taxes. The demurrer confesses the charge, so that we are not troubled with any collateral questions or inquiries into matters of fact. It is admitted that the supervisors have not brought their judgment to bear upon the question of value, but have set aside and disregarded their duty for the express purpose of perpetrating a wrong upon an individual. The question, then, is this: A public officer being empowered by law to apportion certain burdens among the citizens as in his judgment shall be just, being actuated by a fraudulent purpose, instead of obeying the law disregards its mandate, declines to bring his judgment to bear upon the question submitted to him, and arbitrarily and with express reference to defeating the end at which the law aims, determines to impose an excessive burden upon a particular citizen. Has this citizen any remedy against the threatened wrong?

We think this question can admit of but one answer. A discretionary power cannot excuse an officer for refusal to exercise his discretion. His judgment is appealed to, not his resentments, his cupidity, or his malice. He is the instrument of the law to accomplish a particular end through specified means, and when he purposely steps aside from his duty to inflict a wanton injury, the confidence reposed in him has not disarmed the law of the

means of prevention. His judgment may indeed be final if he shall exercise it, but an arbitrary and capricious exertion of official authority, being without law, and done to defeat the purpose of the law, must, like all other wrongs, be subject to the law's correction.

There is no function of government which requires more care, prudence, and caution for its legal exercise than that of taxation. The very nature of the power to tax is so general, so sweeping, so pervading, and oftentimes its exercise is so onerous, that special cautions are prescribed to prevent abuse, extortion, and oppression. In many cases these fail of their object, and nothing is better understood than that it is impossible that tax laws shall in all instances operate equally and justly. But any intentional favoritism, even though from motives of public interest, if without express authority of law, will render void the tax proceedings. This has been held where the property was exempted by the taxing officers in order to encourage the erection of a public hotel, the burden taken from this being imposed upon the public at large: Weeks v. Milwaukee, 10 Wis. 242, approved in Hersey v. Supervisors, &c., 16 Id. 185. So the imposition of the burden in disregard of any rule of uniformity is always held unwarranted: Knowlton v. Supervisors, 9 Wis. 410; Motz v. Detroit, 18 Mich. ; Bay City v. State Treasurer, 22 Id. And some cases have gone so far as to hold that where the legislature unjustly and with the improper motive of increasing the revenues of a city, have brought within its limits, and subjected to its taxation, property purely agricultural in its nature, and so situated as not to receive the benefits of city government, conveniences, and regulations, the courts might interfere and restrain city taxation upon such property Covington v. Southgate, 15 B. Monr. 491; Arbegast v. Louisville, 3 Bush 271; Morford v. Unger, 8 Iowa 82; Langworthy v. Dubuque, 13 Id. 86; Fulton v. Davenport, 20 Id. 282; Bradshaw v. Omaha, 1 Neb. 16. It may be questionable, perhaps, whether these last cases have not gone too far, but the ruling that fraudulent taxation should be restrained wherever the case is such that the motive can be legally inquired into-as it always may be in the case of the subordinate agencies-is in our opinion very clearly sound and wholesome.

What the details of the relief shall be, is not so clear. We have already said that the complainant should be required to do

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