THE PEOPLE v. CIRCUIT JUDGE OF BRANCH COUNTY.

The People ex rel. Shimer v. The Circuit Judge of Branch County.

Mandamus: When will not lie to vacate order for new trial. Where the affidavit, on a motion for a new trial, contains something upon which the Circuit Judge is called upon to exercise his judgment, it becomes a matter addressed to his discretion, and this court has no authority to issue a mandamus to direct him to rescind his action.

Heard and decided May 13th.

Mandamus.

This is an application for a mandamus to compel the Judge of Branch Circuit to vacate an order made and entered by said Circuit Court February 14, 1868, setting aside the judgment and granting a new trial in the case of John Shimer v. Allen Turner and Catharine A. Turner, on the ground of newly discovered evidence. That case was an action to recover damages for the breach of covenants of seizin, and free from incumbrances, contained in a deed executed by the defendants to plaintiff June 2, 1866, conveying the southwest one-quarter of the southwest one-quarter of section twenty in township six n. of r. one w. in Clinton county, in this State. The breach shown was a deed from the Auditor General to Porter K. Perrin, for the taxes of 1863, dated November 24, 1865. The defendant's counsel to rebut this gave evidence tending to show that the taxes assessed on said premises for the year 1863 had been paid, and therefore said deed was void. Judgment was rendered for the plaintiff for $558.51 and costs, and afterwards a motion for a new trial was made on the grounds of newly discovered evidence and of surprise, which motion was based on the affidavit of said Allen Turner. A new trial was granted.

It was claimed in behalf of the relator that the affidavit on which the order for a new trial was based, entirely failed to make any showing of newly discovered evidence, and

WALCOTT v. THE PEOPLE.

therefore the order made by the Circuit Judge was entirely without authority.

E. G. Fuller, for the motion.

Per Curiam.

We are of opinion that there was not an entire failure of any showing, but on the contrary there was something upon which the Circuit Judge was called upon to exercise his judgment; and that being so, the question whether a new trial should be granted is one addressed to his discretion, and the Supreme Court has no authority to review his conclusion, and compel him by mandamus to rescind his order. Motion denied.

Albert Walcott v. The People.

Constitutional law: When law imposing a tax shall specify the object to which it applies. The provision of the Constitution — Art. 14, § 14-which directs that every law imposing a tax shall specify the object to which it is to be applied, does not require this to be done in the act itself, where the application of the tax is distinctly made by the Constitution and can not be altered by the legislature; and, inasmuch as all specific taxes are thus appropriated by the Constitution, a law imposing such taxes is not void for omitting to provide for their appropriation.

Constitutional law: Limitation of power to continue specific taxes. The express power given by the Constitution Art. 14 § 10- to continue specific taxes authorized by existing laws, and to impose specific taxes on corporations thereafter created, does not limit the right of specific taxation to such cases, but leaves the legislature at liberty to use it for such other purposes and branches of business as may be found to render it expedient.

Constitutional law:

Tax on express companies: Commerce. The act requiring express companies-Sess. Laws 1867, p. 195-to pay a specific tax of one per cent. on the gross amount of current business within the State, is not repug nant to that clause of the Federal Constitution which gives to Congress the power to regulate commerce among the several states.

Error to Wayne Circuit.

Heard April 28th. Decided May 13th.

This action was brought to recover from the defendant below, and who was an agent of the American Express

Company, the penalty for an alleged violation of the provisions of Act No. 149, Session Laws of 1867, entitled "An act to regulate express companies and their agents, and individuals prosecuting the express business, not incorporated by the State of Michigan."

The cause was tried without a jury, and the court found the following facts:

"That the American Express Company, so called, is engaged in the state of Michigan in transacting an express business and forwarding packages and property by express for hire.

That said company is not a corporation, but is a copartnership, having its principal office or place of business in the city of New York, and is engaged in transporting for hire, freight and valuable parcels between the several States of the United States, and between said States and the adjoining Dominion of Canada, through the State of Michigan, and between said State and the other States of the United States and Dominion of Canada to and from said State.

That said company has, for the purpose of transacting its said express business within this State, and between places in this State and other States and foreign countries, many agents and offices, and also valuable property, personal and real, at various points and places throughout the State, upon which said property taxes for State and local purposes are annually levied, assessed and collected, as upon other property of equal value in this State.

That from the first day of February, A. D. 1868, to the day of the filing of the declaration in this cause, the defendant has acted as an agent and officer of said company in the transaction of its said business in the State of Michigan, and as such did daily, within said county of Wayne, perform the acts mentioned in said declaration, to wit: forward one or more parcels by express without complying with the provisions of the act mentioned and referred to in said

WALCOTT v. THE PEOPLE.

declaration, and that said company did not comply with the provisions of said act.

That said defendant did not, nor did said company, or any one in their behalf, file the statement and procure the certificates mentioned in section one of said act, or pay the tax specified in section two of said act, declared by said act to be a condition precedent to the issuing of such certificates, although they were willing and offered to file the statement required by section one of said act."

Whereupon the court found, as a matter of law, that the defendant was liable to the plaintiff in manner and form as declared against, and rendered judgment in favor of plaintiff against defendant in ten dollars damages and costs of suit to be taxed.

Moore & Griffin, and A. Mandell, for plaintiff in error.

1. No recovery of a penalty for a violation of the provisions of said act can be had, because said act does not distinctly state the object to which the specific tax mentioned in section 2 is to be applied.--Art. 14, § 14, Const.

This provision of the constitution is imperative, and not directory.-36 Barb. 178; 17 N. Y. 235.

2. Article 14, § 10, Const. evidently contemplates that no specific tax shall be collected except from "banking, rail road, plank road, and other corporations hereafter created."

The special enumeration of these organizations on which a specific tax may be imposed excludes all others.

This section further contemplates that such tax shall be imposed only on "corporations," and we think on corporations created by the Legislature of Michigan.

It is admitted that the American Express Company is not a corporation, but simply a copartnership, or more properly, perhaps, a joint-stock company. It has none of the privileges or exemptions of a corporation from taxation for municipal or local purposes.

WALCOTT v. THE PEOPLE.

The specific tax in this case is on the "business" of the company, and we think in contravention of the constitution.

3. Again: Specific taxes are rather odious, as they operate unequally in reference to other property. The convention did not intend to increase, but rather to restrict them: Hence-Art. 14, § 11-"The Legislature shall provide an uniform rule of taxation, except on property paying specific taxes."

Taxation operates upon a community, or upon a class of persons in a community, and by some rule of apportionment.-4 N. Y. 419.

A common burden should be sustained by common contributions, regulated by some fixed general rule, and apportioned according to some uniform rates of equality.-5 Dana, 28; 9 Id. 513.

If, however, the Legislature is still at liberty to impose specific taxes upon all kinds of property and upon business, they may evade and defeat this uniform rule, and make particular interests bear all the burdens of the state: the very evil the convention intended to provide against.

A specific tax upon the "gross receipts" of the company on their current business, performed entirely within. this state, would be a tax upon business, prohibited by implication by the constitution; but sought to be authorized under the new constitution, so called, recently submitted to the people. Art. 11, § 12.

The personal and real property of the company in Michigan already shares its burden of taxation wherever situated for state, municipal and local purposes.

4. What is the construction of subdivision "Fourth" in section 1 of said act?

It does not seem to contemplate as gross receipts anything not earned in Michigan. The language is "Gross receipts on their current business in this state."

What is their "business?" Plainly carrying goods and other property, and their earning and receiving pay; in imple language, "freight."