Crosby v. Patch

Field, C. J. delivered the opinion of the Court Cope, J. concurring.

This is an action to recover the sum of five hundred and seventy-five dollars paid, under protest, by the plaintiffs to the defendant, who was at the time Tax Collector of the city and county of San Francisco, in order to release from seizure and threatened sale certain property belonging to them, seized by him for taxes of the fiscal year ending in 1858, levied on consigned goods in their hands. The case was tried without a jury and the Court found that the plaintiffs were at the time importing merchants ; that the goods upon which the tax was levied were in their possession as consignees, and were the property of persons who were neither residents nor citizens of California; that the goods were in the original form and package in which they were imported; that they had [440]not been incorporated with the mass of property in the State, and had not lost their distinctive character as imports, and that the assessment was made and the tax levied under the Revenue Act of 1857. Upon these facts the Court held that the plaintiffs were entitled to recover, and gave judgment in their favor, and hence the present appeal.

The plaintiffs claim an affirmance of the judgment on two grounds: first, that the tax was assessed and collected under the Revenue Act of 1857, and not under that of 1854, the sixth article of which latter Act, it is insisted, was at the time in force; and second, that a tax on consigned goods, previous to their sale and incorporation with the mass of the property of the State, is repugnant to the Constitution of the United States. The conclusion to which we have arrived upon the first ground renders it unnecessary to pass upon the second.

The Revenue Act of 1854, in its sixth article, declares “ all goods, wares and merchandise, provisions, or any other property whatsoever, brought or received within this State from any other State or from any foreign country, to be sold in this State, owned by any person or persons not domiciled in this State,” to be consigned goods within its intent and meaning, and provides that all persons selling such goods shall be subject to a tax, for the use of the State, at the rate of fifty cents on each one hundred dollars of the amount of sales made by them. The act also requires a monthly statement under oath from them of the amount of their respective sales, and provides in case of their neglect or refusal to pay the duties imposed, that they shall forfeit double the amount thereof. These provisions were in force at the time the tax, which is the subject of consideration in the present case, was levied, unless repealed by the Revenue Act of 1857. This latter act declares all property within the State subject to taxation, with certain specified exceptions, among which consigned goods are not designated; and the definition which it gives of “ personal property ” in the fifth section is sufficiently comprehensive to include goods of that class. The Act of 1854 does not impose upon consigned goods the tax to which other personal property is subject; it only imposes, as we have stated, upon the sellers of such goods a percent