Tift and others vs. Grillin.

default, the treasurer is directed to issue execution forthwith against him for the amount. So also, the Inferior Court is authorized to issue execution against a defaulting collector for the county tax, or against a county treasurer. Prince, 850, 863. Hotchkiss, 856. So also, the Federal Government may summarily enforce the collection of its revenues, out of defaulting receivers, or other duly appointed agents. Upon like principles the State may collect taxes immediately, out of the defaulting citizen; for that purpose the tax collector is authorized to issue execution. These powers of the government are founded in an imperious necessity. They are necessary to the preservation of the government, to the administration of the law, indeed, to a maintenance of all the rights of the people. If the government were forced to submit the case of every defaulting tax payer, and tax gatherer, and financial agent to a jury, with the delays and uncertainties attending a judicial investigation, it could not command its revenue, it could not be administered. The Federalist in paper No. 83, thus speaks of this subject, " as to the mode of collecting taxes in this State, (Virginia,) under our own Constitution, the trial by jury is in most cases out of use. The taxes are usually levied by the more summary proceeding of distress, and sale, as in cases of rent. And it is acknowledged on all hands, that this is essential to the efficacy of the revenue laws. The dilatary course of a trial at law to recover taxes imposed on individuals, would neither suit the exigencies of the public, nor promote the convenience of the citizens."

The liability of the citizen, whether a tax payer or tax collector, or other financial agent, thus summarily to be enforced without the intervention of a jury, has constituted one exception to his right to trial by jury, I have no doubt in Georgia—in all the States in the Union, and in England. It has not been according to the use of the trial by jury in this State, to allow him a jury in such cases. The Constitution makes inviolate the trial by jury, as heretofore used. This law does not violate it, because as used, the trial by jury admits of this exception. There are many others, which I need not refer to. From the earliest times, the trial by jury has descended to us, through usage in England-in our Provincial state, and after the organization of our State Government, subject to this limitation. Our own Statute book shows that such has been our usage. The very act under consid

Tift and others vs. Griffin.

eration is anterior to the constitution of '98. Not that I mean to say, that the act of the Legislature can make an exception to the general right, for that would be to submit the right and the Constitution to the discretion of the Legislature. The great Magna Charta privilegeis, that no man shall be divested of his property, but by the judgment of his peers, or the law of the land. He must be divested according to the course of the Common Law, and not according to the Statute, to make it a legal disfranchisement. So our usage must be according to the course of the Common Law. See 2 Ins. 50. 19 Wend. 659. 4 Hill N. Y. R. 145, 146, 147. Hoke vs. Henderson, 4 Der. N. C. R. 15. Parsons vs. Bedford, 3 Peters' R. 446. Story's Comm. on the Consti tution, 3 vol. 661.

But I refer to our statutes simply as evidence of the usage. The remarks of Mr. Justice Nott upon this subject, are worth transcribing here. After enumerating a number of exceptions to the right of trial by jury, he proceeds, "and last, though not less satisfactorily established, distress for taxes. All these, and many others that might be mentioned, are carried on by the well known and established principles of Common Law, or lex terra, without the aid of a jury. This method of collecting taxes is as well established by custom and usage as any principle of the Common Law. A similar practice prevailed in all the colonies from the first dawn of their existence; it has been continued by all the States since their independence, and had existed in England from time immemorial. Indeed, it is necessary to the existence of every government, and is based upon the principle of selfpreservation." And again he says, "I think, therefore, 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 an exception to the right of trial by jury, and is embraced in the alternative, the laws of the land." 2 MeCord's R. 59, 60. Also 1 Bay R. 90. 2 Brock. C. C. R. 447. The case in McCord, was that of a defaulting citizen-a tax-payer. The principles applicable to such a case, it is hardly necessary to say, appy with equal, if not greater force, to a collector or receiver of the public money. If the government may, without a jury, compel a citizen to pay his taxes, a fortiori, it may compel its own officers to refund, when in default.

If the former is an exception to the right of trial by jury, the lat

1

Tift and others vs. Griffin.

ter must be also. In these cases, the persons authorised to issue executions as the treasurer of the State, and the Inferior Courts, act ministerially; they have no judicial functions in this regard. The inferior Courts have judicial powers, but I apprehend this is not one. They act as mere agents of the State. They are instructed by the act to issue execution for the amount which appears to be due. There is no issue to try-there is no judgment. to be pronounced. As auditors, it is their business to ascertain the amount due, and then to issue execution. So, the State treasurer is the mere agent of the State. His business is to state the collector's account, and if he is in arrear, to issue execution. That these proceedings are not judicia!, see Ch. J. Marshall, in ex parte Randolph, 2. Brockenborough C. C. R. 447. Whether viewed in the light of judicial or ministerial acts, however, I imagine is not material. If judicial, they are still exceptions. Magistrates' Courts, and others, may give judgment without a jury, in certain cases, which have been exceptions to the right of trial by jury. 2 Blackf. 5. Ibid, 8. 1 Marsh, 290. 6 J. J. Marshall, 27. 1 Marsh, 441. 1 Mass. 443. 2 Cow. 815. R. M. Charlton, 203.

But we hold that so far as others than the legally appointed collectors, receivers, or depositories of public moneys are concerned, the Act of 1796, is unconstitutional. If the Inferior Court, lend the public money to a citizen, or if he, in his private, unofficial character, becomes the debtor of the Inferior Court in any other way, then the whole character of the transaction is changed, and he is entitled to his jury. It is matter of contract between him and the Court. He is not a debtor to the public, but to the Court. They are responsible to the State-he to them. The necessity upon which the exception is founded, does not, in that case exist; the reasoning does not apply, and the usage does not sustain it. The act, in its terms, applies to all persons who have had, or may have the money of the county in their hands; it is constitutionally valid in its application to but one class of persons. The proceeding must show that the person sought to be enforced . belongs to that class; it must show that he is a legally appointed agent of the Court, and through it, of the public. It charges him, simply, as having money in his hands, of the county; it does not show in what character he holds it.

[2.] A Court holding a special or limited jurisdiction, must show

Flint River Steamboat Company vs. Foster.

by the proceedings, the case within that jurisdiction. It can take no jurisdiction by intendment. It must show, not only, that it has jurisdiction over the subject matter, but the person. This act cannot be construed to extend to other persons than monetory agents. See 2 Brockenborough C. C. R. 447. If that be the construction, the pleadings must conform. That they are irreg ular unless they show the jurisdiction of the Court, see 2 Wils. 382. 6 Mod. 224. 9 Ibid, 95. 9 Cranch R. 173. Burrow, 2281. R. M. Charlton R. 203.

[3.] Looking then at this case as a proceeding to collect a sum of money due by contract to the Inferior Court of Baker county, from the intestate of the complainant, in his private and unofficial character, it is our judgment that the Acts of the Legislature of 1796, which in its terms authorizes it, is unconstitutional, because it deprives him of the right of trial by jury.

Let the judgment of the Court below be affirmed.

No. 23.—THE FLINT RIVER STEAMBOAT COMPANY, plaintiff in error, vs. NELSON P. FOSTER, defendant.

[1.] An Act to be in derogation of common right, must be confined in its provisious to a particular individual, or set of men, separate and apart from the rest of the community.

[2.] The Legislature being the sovereign power in the State, while acting within the pale of its constitutional competency, it is the province of the Courts to interpret its mandates, and their duty to obey them, however absurd and unreasonable they may appear.

[3.] As a general rule, a defendant must have notice, actual or constructive; otherwise no valid judgment can be rendered against him. To this principle there ase several exceptions: 1st. The Legislature may dispense with notice. If the expressions used in the statute will admit of a doubt, it will not then be presumed that such a construction was intended, the consequences of which are so unreasonable. But where the signification is plain, there is no power of this dispensation in the Courts. 2dly. Notice before judgment is not essential where the statute itself provides specific meaus of relief.

[4.] If an act of the Legislature is in contravention of the Constitution, either State or federal, it is, ipso facto, void, and it is the duty of the Courts so to

Flint River Steamboat Company vs. Fester."

declare it. But they will not pronounce a statute a nullity, except in a plain and palpable case.

[5.] The laws of Georgia may be thus graduated with regard to their authority: 1. The Constitution of the United States. 2. Treaties. 3. Laws of the United States, made in pursuance of the Constitution. 4. Constitution of the States. 5. The Statutes of the State. 6. Provincial acts that were in force and binding on the 14th day of May, 1776, so far as they are not contrary to the Constitution, laws, and form of government of the State. 7. The Common Law of England, and such of the Statute Laws as were usually in force before the Revolution, with the foregoing limitation.

[6.] General observations on trial by jury as guarantied to the people of this country, and assigning reasons why it is essential in criminal, and not in civil

cases.

[7.] The provision in the Constitution of Georgia, that "trial by jury, as heretofore used, shall remain inviolate," means, that it shall not be taken away, in cases where it existed when that instrument was adopted in 1798; and not that there must be a jury in all cases.

[8.] Trial by jury is a privilege which may be waived. And when the defendant has an opportunity to demand it, and omits to do so, he cannot complain that it is denied.

[9.] An Act of the Legislature, authorising a judgment to be rendered without the intervention of a jury, is not, on that account, unconstitutional.

[10.] Trial by jury may be clogged with onerous conditions, yet the act prescribing such terms will not be pronounced unconstitutional, unless it totally prostrates the right, or renders it wholly unavailing to the defendant, for his protection.

[11.] The words of Magna Charta, that "no freeman shall be taken or impris oned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed, or passed upon, or condemned, but by lawful judgment of his peers, or by the law of the land," were intended to secure the individual from the arbitrary exercise of the powers of government, (such as arbitrary impeachments, arbitrary methods of prosecuting pretended offences, arbitrary punishments upon arbitrary convictions,) unrestrained by the established principles of private rights and distributive justice. [12.] The Acts of the Legislature of Georgia, of 1341 and 1845, giving a summary remedy to all persons employed on steamboats and other water-craft, on the Chattahoochee, Altamaha, Ocmulgee and Flint Rivers, to recover their wages, and for wood and provision furnished, &c. are not repugnant to the Constitution of the United States, or of the State of Georgia.

Summary process against the Flint River Steamboat Company, decided by Judge WARREN, in Decatur Superior Court, June Term, 1848.

The facts are sufficiently incorporated in the opinion of the Court.