the answer is that while the county may be the debtor and responsible to the State, it is not the tax-payer, but it is a debtor for taxes, which latter the law presumes that it has collected. This case presents an instance of the statutory authority requisite to support a claim for interest. See the reference of the court to Laws 1814, ch. 29, § 4, and note, that in subsequent years interest was expressly given by statute in this connection. See R. S. pt. 1, tit. 3, art. 2, § 33, now repealed. Laws 1850, ch. 298, § 12, now repealed, Laws 1855, ch. 427, § 12, the present law.

Whatever may be the logical consistency of a system of law which permits the recovery of interest upon money due in general, but not upon taxes, it is certain that such a rule exists, and that taxes differ in many respects from ordinary debts.

In various ways the questiou has been discussed whether a tax is a debt or not, and whether it is an obligation which rests upon an implied contract. Among the later cases are: Hibbard v. Clark, 56 N. H. 155; Union Co. v. Bordelon, 7 La. Ann. 192; Geren v. Gruber, 26 id. 694; Shreveport v. Gregg, 28 id. 836; State v. Yellow Jacket Co., 14 Nev. 220; United States v. Pacific R. Co., 4 Dill. 66; 4 Wis. 228; City of Dubuque v. Ill. R. Co., 49 Ind. 75; Perry City v. R. Co., 58 Ala. 546.

The above cases are cited simply to show that the species of liability to pay money here in question differs from other kinds of liability in several particulars, and that the peculiarity of not bearing interest is only one among others which makes taxes a distinct class of liability. If it were a new question whether taxes bore interest, then the analogy of this liability to other money liabilities might be important in deciding whether taxes should not bear interest. As it is, whether a tax be considered to have some features of a debt, and not others, is wholly immaterial since the law has attached to it the well-settled peculiarity of not bearing interest.

The liability to pay interest on taxes cannot be founded on any such meaningless reasoning as that taxes are debts and all debts bear interest, or a tax is a contract to pay money, and failure to pay, entitles the State to interest.

Such being the general law upon this point it is evident that had the Legislature attended to it, the statute would either have not contained the word interest, in which case no interest could have been recovered, or it would have contained clear and distinct provisions in regard to it, such as those in Laws 1880, ch. 534, § 3.

Instead of this we find the word "interest" in this connection, "if the comptroller is not satisfied with the valuation so made and returned, he is hereby authorized and empowered to make a valuation thereof, and to settle an account upon the valuation so made by him for taxes, penalties, and interest due the State thereon." See section 1.

Under this provision the question arises whether interest is due in any case, or in all cases of failure to pay the tax imposed by section 3, or only in those in which an account is thus settled. As there are no other provisions as to interest, a failure to pay the tax on gross earnings, or the tax on premiums, would be accompanied only by a penalty of ten per cent.

There is only one method of dealing with this difficult provision, and that is through the history of the Pennsylvania system. But it will be seen in following that out how completely must a careful examination of the Pennsylvania law have been ignored.

The propriety of a recourse to the Pennsylvania system is obvious, but see 76 Mo. 389, and cases cited.

We will state briefly (a) the successive provisions of the Pennsylvania law as to interest upon taxes due from corporations, and (b) the provisions as to pen

alties for failures to make reports or pay taxes in cases of corporations.

(a) The law of Pennsylvania as to interest upon taxes due from corporations.

From the year 1811, until the year 1867, there was an express statutory basis for the recovery of interest on unpaid taxes in the statute of 1811, which related to public accounts, and which gave interest on all balances due the Commonwealth from three months after the date of settlement. Purdon's Digest, 1185; Del. Co. v. Com., 50 Penn. St. 409; Com. v. Coal Co., 1 Pears. 320.

There has never been any such provision in the State of New York applicable to taxes.

In 1867 a Pennsylvania statute provided that taxes should bear 12 per cent interest from the time they become due and payable to time of settlement, and instead of such balances bearing interest at legal rate from three months after date of settlement, they bore interest at 12 per cent from thirty days after date of settlement until paid. Laws 1867, p. 58.

In 1868 this thirty days was changed to sixty (Laws 1868, p. 108), and in 1879 to thirty days after the taxes were due and payable. Laws 1879, p. 112.

In 1877 there is no reference whatever to interest, except one similar to that in Laws 1880, ch. 542, section 1. Laws 1877, p. 6.

In the Standard Oil case the court seem to regard this as preventing the imposition of any interest under that act. Com. v. Standard Oil Co., 12 W. N. C. 293.

In 1874, judgments for taxes were to bear 12 per cent interest until paid. Laws 1874, p. 72.

(b) The law of Pennsylvania as to penalties for failure to make reports, or pay taxes in cases of some corporations.

1. If report on capital stock not made, add ten per cent. See Laws 1858, p. 419; 1861, p. 468; 1868, p. 108, section 3; 1874, p. 69, section 2; 1877, p. 7, section 2; 1879, p. 113, section 2.

Compare New York Laws 1880, ch. 542, section 1. 2. If report on gross receipts not made, or tax not paid, add ten per cent.

See Laws 1868, p. 111, section 8; 1877, p. 9, section 5; 1879, p. 116, section 7.

Compare New York Laws 1880, ch. 542, section 7; 1881, ch. 361, section 7.

3. If report not made as to Ins. Cos., or tax unpaid, add ten per cent.

See Laws 1877, p. 10, section 6; 1879, p. 117, section 8. Compare New York Laws 1880, ch. 542, section 5; 1881, ch. 361, section 5.

The phrase under discussion will be examined first in the Laws of 1880, and then in the Laws of 1881.

The phrase "taxes, penalties, and interest" in the Pennsylvania statutes first appears in Laws 1874, p. 69, section 2, and is repeated in the same words in Laws 1877, p. 7, section 1, and in Laws 1879, p. 113, section 2. The word "penalties" in the act of 1874 can only refer to the penalty for failure to report, for there is none for failure to pay the tax, and never has been, and the word "interest" can only refer to the interest expressly authorized by section 10 of the same act.

When the New York Legislature passed chapter 542, Laws 1880, copying the same from the Pennsylvania act, they omitted all express authorization of interest, but followed the Pennsylvania act in providing for a percentage in case of failure to report, and in not providing for a percentage in case of failure to pay the

tax.

This left the word "interest" in the New York act superfluous, and without any provisions as to interest corresponding to it, such as existed in the Pennsylvania statute, at least in those of 1874, or 1879.

With these facts before us, the construction of the word "interest" in the law of 1880 must be arbitrary.

The State might argue that since the comptroller is authorized to settle an account for the "taxes, penalties, and interest due the State," the word "penalties" must refer to penalties for failure to report, and to pay the tax, and the word "interest" though not used in a clause expressly imposing interest, or in connection with any such clause, yet implies the intention that interest should be recovered. There is no intellectual satisfaction in this.

On the other hand, one distinction between the New York and the Pennsylvania system would seem to be that throughout the former, a penalty of ten per cent takes the place of the penalty and interest in the latter.

See Laws 1880, ch. 534, where interest is expressly given, but no penalty.

In the act of 1877, there were no express provisions as to interest, although this phrase "penalties and interest" occurred, and the court held that interest was not due under that statute. 12 W. N. C. 299. They also held that in the case of the gross receipt-tax, the penalty was a substitute for interest under the same statute. Com. v. Coal Co., 2 Peas. 214.

Every end that is sought to be attained by the imposition of interest is reached through this penalty of ten per cent.

"We think the penalty is to be regarded not only as a punishment to the delinquent, but also and principally as a compensation to the State and county for the delay of payment, and the consequent derangement to their finances." State v. Huffacker, 11 Nev. 300.

In dealing with the same phrase in the law of 1881, it may be premised that in the Pennsylvania system as to taxing transportation and insurance companies in 1877, penalties for failure to report and failure to pay the tax were imposed, and in the New York system of 1880 and 1881, there are similar penalties as to like corporations.

In the amendment of Laws 1881, ch. 361, there appears what does not appear in the Pennsylvania act, namely, a provision for a percentage of ten per cent in case of failure to pay the tax imposed by section 1. The word "interest," however still remains without any provision to which it can attach.

This word was manifestly left in the New York statute through neglect and inattention, and while in the act of 1880 it can only be regarded as superfluous, it may have a force in the act of 1881, by referring it to the new provision as to a penalty for failure to pay the tax. The word "penalties" in the act of 1881 will then refer, as it did in the act of 1880, solely to a penalty for failure to report.

The advantage of this latter theory is that it gives a meaning to the word "interest," in the act of 1881.

It is believed that sufficient accuracy in the statement of the Pennsylvania law has been attained for the purposes of this article. Those statutes standing alone are "obscurely worded and difficult of solution." Com. v. Phonix Ins. Co., 1 Pear. 383. The provision that interest is not to relieve from penalties, in Laws 1868, p. 113, section 12; Laws 1874, p. 72, section 10; Laws 1879, p. 119, section 13, read in connection with 12 W. N. C., and 2 Pears. 414, has not been overlooked. The mind is very impatient of having to deal with such methods as the foregoing, in the construction of a statute, but sometimes they are the only ones applicable.

The true view of these statutes would seem to be that interest is not collectible under Laws 1880, ch. 542, section 1, as amended by Laws 1881, ch. 361, section 1, but at any rate the discussion through which it is reached shows an utter disregard by the Legislature of any care in the preparation of this statute, at least in this particular. One object to be attained by a

statute is certainty, and the Legislature owes a duty to the people to see that at least no carelessness of theirs is the cause of uncertainty in such important statutes as those relating to taxation. EDWARD LYMAN SHORT.

PARTITION UNDER WILL WITH OUTSTANDING POWER OF SALE.

SOME

OME very interesting questions arise in view of the recent decisions of the Court of Appeals, as to when partition may be maintained under a will when there is an outstanding power of sale.

Hetzel v. Barber, 69 N. Y. 1, establishes the right beyond question in the devisees to reconvert an estate, which by a will has been converted from realty into personalty, into real estate, and thus cut off the power of sale.

Prentice v. Janssen, 79 N. Y. 478, follows up and enforces this doctrine, and goes further, in this, that it is there held that where a part of the devisees have reconverted by a sale, and the remaining devisee has by treating the property as land assented to a practical re-conversion, the power of sale is cut off, and partition will lie.

In these cases the decision is put upon the ground that the estate passed to the devisees subject to the power of sale, and that they had a right to take the land-the rights of third parties not having intervened -and thus cut off the power of sale. But it will be observed that it is not held that partition will lie until the power of sale has been extinguished.

In Morse v. Morse, 85 N. Y. 53, it is held that partition will not lie where the executor is clothed with power to rent, etc., because thereby the estate is vested in him. And in Mott v. Ackerman, 92 N. Y. 540, we find that a power of sale with directions to pay debts or distribute passes to an administrator with the will annexed.

Now the query naturally arises, will partition ever lie as such, where then is an outstanding power of sale? It certainly will not where the power to rent is given.

How can it where the executor still survives, or where the power passes to an administrator with the will annexed, unless all of the heirs have re-converted?

This would seem to leave the persons to whom the estate descends to their remedy (if they desire to enforce distribution) of bringing suit against an executor upon proper grounds to compel him to sell, or if the executor is dead, to have an administrator appointed and compel him to sell.

We must note however the remark of Judge Andrews, in Morse v. Morse, that "if the parties took a present legal estate in the farm as tenants in common subject to a bare power of sale," then partition would lie. If this is a correct statement of the law we can put it thus:

Partition will lie when the land is directly given to the devisees as tenants in common, notwithstanding a bare power of sale.

If the will contains directions to the executor to sell, to pay debts or distribute, partition will not lie, for in such case the administrator with the will annexed can execute the power.

This solution leaves the road clear for suitors, inasmuch as by it no questions are raised as to inchoate or complete dower interests or curtesys, for in the only case in which partition will lie the land has passed with all its incidents. While in all other cases the distribution is made as of personalty.

But this still leaves the very interesting qustion as to how to cut off the power of sale in such cases. For

in these cases the parties cannot "re-convert," nor does the mere bringing of a suit by one devisee for partition estop the executor. So that reconciling the other matters we still have to ask, if it be true that partition can be made in the case stated, how do we extinguish the power of sale?

After a somewhat exhaustive examination, we have been unable to substantiate the statement of Judge Andrews above quoted. It was not necessary in that case for him so to have held.

OFFICER PROTECTED BY PROCESS FAIR ON ITS FACE.

SUPREME COURT OF THE UNITED STATES. NOVEMBER 12, 1883.

MATTHEWS V. DENSMORE.

Where a writ of attachment, issued by a court having jurisdiction of the parties and the subject-matter, is fair on its face, and the officer receiving it is bound to obey it, he is protected, even though the affidavit filled with the clerk on which it is issued is insufficient to authorize the issue.

IN

N error to the Supreme Court of the State of Michigan. The opinion states the case.

MILLER, J. This is a writ of error to the Supreme Court of the State of Michigan.

The plaintiff in error was marshal of the United States for the Eastern District of that State, and under a writ of attachment from the Circuit Court levied on a stock of goods which was the subject of controversy. The defendants in error, who were not the parties named in the writ of attachment, sued Matthews, the marshal, in trespass, on the ground that they were the owners of the goods and that the goods were not liable to the attachment under which the marshal acted.

To this action the defendant pleaded the general issue, with notice that he should rely on the writ of attachment and should prove that the goods were subject to be seized under it.

When the defendant, who was admitted to be the marshal, as he had alleged, offered in evidence the writ of attachment, the court refused to receive it, on the ground that it did not appear by the affidavit on which it was issued that the debt claimed by the plaintiff in the writ was due. As the plaintiffs in the present action were in possession of the goods when they were seized under the writ, this ruling of the court was decisive of the case, for however fraudulent might have been that possession, the defendant here, in the absence of any valid writ, was a mere trespasser and could have no right to contest the lawfulness of that possession.

The whole case turned therefore on the trial in the local State court, as it did on the writ of error in the Supreme Court, which affirmed the judgment of the lower court, on the question of the validity of the writ of attachment in the hands of the marshal, and its sufficiency to protect him if the property seized under it was liable to be attached in that suit.

It is to be observed that this does not present a case where the validity of the writ is assailed by any proceeding in the court which issued it, either by a motion to set it aside as improvidently issued, or to discharge the levy and return the property, or by appeal to a higher court of the same jurisdiction to correct the error of issuing it on an insufficient affidavit, but it is a proceeding in a court of another jurisdiction to subject an officer of the United States to damages as a trespasser for executing a writ of the court to which he owes obedience.

The Supreme Court of Michigan, whose judgment we are reviewing, says of this writ, in answer to the argument, that being regular on its face, it should protect the officer: No doubt the writ in this case must be regarded as fair on its face. Under the general law relating to attachments, where the suit is begun by that writ, the affidavit is attached to and in legal effect becomes a part of it; and if then the affidavit is void the writ is void also. But under an amendatory statute passed in 1867, which permits the issue of the writ in pending suits, the affidavit is filed with the clerk, and the officer to whom the writ is issued is supposed to know nothing of it. Comp. L., §. 643. It was under the amendatory statute that the writ in this case was issued, and an inspection of its provisious shows that the writ contains all the recitals that the statute requires."

Here then we have a writ which is fair on its face, issued from a court which had jurisdiction both of the parties and of the subject-matter of the suit in which it was issued, and which was issued in the regular course of judicial proceeding by that court, and which the officer of the court in whose hands it was placed is bound to obey, and yet by the decision of the Michigan court it affords him no protection when he is sued there for executing its mandate.

We do not think this is the law. Certainly it is not the law which this court applies to the processes and officers of the courts of the United States and of other courts of general jurisdiction.

It had been supposed by many sound lawyers after the case of Freeman v. Howe, 20 How.? that no action could be sustained against a marshal of the United States in any case in a State court where he acted under a writ of the former court; but in Buck v. Colbath, 3 Wall. 334, where this class of cases was fully considered, it was held that though the writ be a valid writ, if the officer attempt to seize property under it which does not belong to the debtor against whom the writ issued, the officer is liable for the wrongful seizure of property not subject to the writ.

In the present case the officer was sued for that very thing, and offered to prove that the property attached was the property of the defendant in the attachment, and was liable to be seized under that writ, and that plaintiff in the present suit had no valid title to it, at least no title paramount to the mandate of the writ, but the State court refused to permit him to make that proof.

The ground of this ruling is that because there is a defect in the affidavit on which the attachment issued, that writ is absolutely void, and the officer who faithfully executed its commands stands naked before his adversary as a willful trespasser.

It would seem that the mandatory process of a writ of general jurisdiction with authority to issue such a process and to compel its enforcement at the hands of its own officer, in a case where the cause of action and the parties to it are before the court and are within its jurisdiction, cannot be absolutely void by reason of errors or mistakes in the preliminary acts which precede its issue.

It may be voidable. It may be avoided by proper proceedings in that court. But when in the hands of the officer who is bound to obey it, with the seal of the court and every thing else on its face to give it validity, if he did obey it, and is guilty of no error in this act of obedience, it must stand as his sufficient protection for that act in all other courts.

The precise point as to the validity of this writ of attachment was under consideration in this court in the case of Cooper v. Reynolds, 10 Wall. 308, in which the effect of an insufficient affidavit for a writ of attachment was set up to defeat the title to land acquired by a sale under the attachment. The case has

to dissent from the ruling of the court below on this question of nuisance, and to hold, on the contrary, that the digging of the trench, complained of in this case, under the license of the borough council, was not such an act as of itself rendered the parties engaged in it guilty of a public wrong.

Having arrived at this conclusion, the question that next presents itself is that involving the responsibility of the defendant. If however the testimony of Jonas Florence, the contractor, it is to be believed, Dr. Smith was not his responsible superior. Florence undertook the whole job for the compensation of $25, and the defendant had nothing to do except furnish the pipe and the box in which it was to be inclosed. With Florence, in the execution of this contract, he could no more interfere than he could about a job in which he had no interest. He might advise, but the contractor could receive or reject that advice as he saw fit; he might put a fence around the ditch whilst in process of construction, and Florence might treat it as an obstruction and remove it. In other words, Dr. Smith could not control the execution of the contract. He was entitled to a finished job, but it was not his business to seee to or regulate the manner of its doing. The case is evidently governed by Harrison v. Collins, 5 Nor. 153, wherein it is said, by Mr. Justice Mercur: "If one renders service, in the course of an occupation, representing the will of the employer only as to the result of the work, and not as to the means by which it is accomplished, it is an independent employment." But certainly, in the case under consideration, Florence was the subordinate of defendant in nothing but the design, whilst in every thing which pertained to the execution of the work he was the chief and only director and executor, and it hence follows, that for his negligence the court ought not to have held the defendant responsible.

We therefore think without particularizing as to the assignments of error, the court should have instructed the jury, that if they believed the uncontradicted evidence on the part of the defendant, as to the character of his contract with Florence, the plaintiffs were not entitled to their verdict.

The judgment of the court below is reversed, and a new venire awarded.

MEANING OF CONSTITUTIONAL REQUIREMENT OF A TWO-THIRDS VOTE.

MINNESOTA SUPREME COURT, NOVEMBER 1, 1883. STATE OF MINNESOTA V. GOULD. The Minnesota Constitution provides thus: "The judicial power, etc., shall be vested in a Supreme Court, etc., and such other courts inferior to the Supreme Court as the Legislature may establish by a two-thirds vote." Held, to mean a two-thirds vote of all the members of each house, and not a two-thirds vote of a quorum.

PETITION upon the relation of one Eastland for a

writ of prohibition against the defendant, forbidding him to act as justice of the municipal court of Moorhead, a court organized under a statute of Minnesota. Sufficient facts appear in the opinion.

BERRY, J. "The judicial power of the State shall be vested in a Supreme Court, District Courts, courts of probate, justices of the peace, and such other courts inferior to the Supreme Court as the Legislature may from time to time establish by a two-thirds vote." Const., art. 6, § 1.

vide for the holding of terms of the Supreme Court in each judicial district (id.); and may pass a general banking law (Article 9, § 13). If upon re-consideration of a bill returned by the governor, "two-thirds of that house" in which it originated agree to pass it, it is to be sent to the other house, and if approved "by two-thirds" of that house it shall become a law. Article 4, § 11. If upon re-consideration of an appropriation bill, one or more items thereof objected to by the governor are "approved by two-thirds of the members elected to each house," the same shall become part of the law. Id. Orders, resolutions and votes requiring the concurrence of the two houses (except such as relate to their business or adjournment), if returned by the governor with objections, "shall be repassed by two-thirds of the members of the two houses." Article 6, § 12. "Whenever two-thirds of the members elected to each branch of the Legislature "shall think it necessary to call a constitutional convention, they shall recommend, etc. Article 14, $ 2.

The Constitution also provides that a majority of each house shall constitute a quorum for the transaction of business (article 4, § 3), and that no law shall be passed unless voted for by a majority of all the members elected to each branch of the Legislature, and the vote entered upon the journal of each house. Id., § 13.

These are all the constitutional provisions that throw light directly upon the question in hand. They show: First, that while a majority of the members of each house constitute a quorum, no law, however unimportant, can be passed without the votes of a majority in each branch of the Legislature of all the members elected to that branch. This is the general rule of legislation prescribed by the Constitution.

In the second place it appears that there are certain particular subjects which are not left to the operation of this general rule. For this but one sensible reason can possibly be assigned. Certainly those subjects could not have been singled out from the mass because they were of less importance than those of ordinary legislation. The provisions for the creation of new courts, for the increase of the judges of the Supreme Court, and for making that court itinerant, are in effect provisions for changing the Constitution itself; that is to say, the Legislature is authorized to change the rule which the fundamental law specifically prescribes in the premises. Irrespective of this consideration, the establishment of new tribunals for the administration of justice, the increase of the number of judges of the highest court in the State, the place where that court should be held, and the question whether a policy which has been discarded in almost every other community, viz., that of making this court itinerant, shall be adopted here, are subjects which manifestly transcend in general and public importance those of ordinary legislation.

That a general banking law is for the most obvious yet weighty reasons one of extraordinary importance will not be questioned. In conformity with a practice which we believe to be of universal prevalence in this country, our Constitution has, for reasons of acknowledged wisdom, conferred the veto power upon the executive. The enactment of a law over a veto is an extraordinary exercise of legislative power. It overrides the official disapproval of the proposed law by one of the three grand departments of the government; a disapproval authorized by the Constitution, and which (in the particular instance) it is presumably the constitutional duty of that department to express. These remarks apply with equal force to the legislative approval of items of an appropriation bill, and of orders and resolutions objected to by the governor, under sections 11 and 12, art. 4.