The complaint set forth in substance, that the defendant, under color of certain tax-lists, had exacted of the plaintiff illegally, taxes to the amount of $152, and that he had under said tax-lists, seized and sold property of the plaintiff for the price of $152.
The plaintiff in his complaint, waived the tort, and sued in complaint for the price. His Honor sustained the demurrer, and the plaintiff appealed. This action, as it stands since the complaint was amended, is to recover $152, being an alleged illegal excess of taxes, which the plaintiff paid to the defendant as Sheriff, under protest. It is founded, on an implied contract, and being far less than two hundred dollars, the Superior Court clearly had no jurisdiction, and the demurrer is sustained on that ground.
Judgment against the plaintiff for costs.
PER CURIAM. Demurrer sustained.
The following note is added by order of the Court:
The counsel by whom the above case was argued, treated it as necessarily requiring an expression of the opinion of the Court, as to the taxing power of the Legislature under the Constitution, and the Court supposing that it did, kept it *Page 433 under advisement for several terms, for the purpose of considering the very novel, difficult and important questions involved. Upon examining the record however, it was discovered that the case was not properly in Court, and that the supposed question did not arise, and as the Court had no desire to express any opinion on questions of such a character unnecessarily, it abstained from doing so. While, however, it was supposed that it would be necessary, Judge Rodman prepared and submitted to his associates, for consideration, a view of the questions, which the Court desired to be printed in an appendix to the report of this term. The opinions and arguments therein are not considered as conclusive even in the judgment of the author, and of course as not indicating in any way the opinions of the other Justices. The publication is thought justified by the novelty, difficulty, and great public importance of the questions discussed, and is made with the hope that the bar, upon whose honest aid the Court always relies, will, in case they should hereafter be presented for discussion, be prepared to aid the Court in meeting them advisedly. The most serious difficulties it will be seen, are not visible at the first glance; they lie beneath the surface. The paper referred to will be found in the appendix.