Wheeling Sunday register. [volume] (Wheeling, W. Va.) 1882-1934, 1884-06-29

necessity decide upon its constitutionaGty.
TIE GOVERNOR MUST DECIDE.
When the Chief Executive is called upon
to execute law, he must necessarily decide
whether it is constitutional, that is, whether
it is a law, for Judge Cooley Con. Linn
3, says: The term unconstitutional
law is a misnomer and implies contradie-
ton; that enactment which is opposed to
the constitution being in fact no law at
all"
The constitution section ), article I. de-
clares
"The chief executive power shall be vested
in the Governor who shall take care that
the laws be faithfully executed"
II is his duty to carefully observe the
manner in which the different officers Of the
government exercise their proper functions,
and execute the laws transmitted to
their charge, or their failure to pur-
form such duties; and when they fail to act
or act improperly, if he has the power to
remove them from office to do so; or if he
has not 10 bring the subject to the cogniz-
anee of that department of government
which has the power o-refnove or punish
them. Shields VS.. Bennett, 8 W. Va. SO.
Under this positive requirement of the
constitution, the Governor must under the
oath of Office he has taken, be vigilant, and
with all the power at his command, require
the execution of the laws which the
legislature has passed. Because in
its wisdom 1t passes such
laws US the good of the State requires and
none other, and if the chief executive does
not see to their faithful execution, he does
not discharge his duty, and the object of the
Legislative department to the extent that
the laws have not been executed, has
failed
In order to determine his constitutional
duty in this respect, he must Of necessity
exercise his discretion and best judgment.
How else could he perform this constitu-
ional duty, except by passing upon the
question as to whether the act OF the
Legislature is constitutional and valid, or
unconstitutional and void? And when he
decides it is constitutional it is his duty 10
execute it. Slack VS. Jacob, 8 ". Va, 657.
BACKED ny TIE COURT.
The Governor did not undertake himself,
rs he might have done, TO decide that Sec
ton AZ of Chapter II, acts Of 1881, was
unconstitutional, but this Court having by
its decision in Railway Company VS.. Miller,
Auditor, 10 W. Va, construed Section OF
Article s, of the Constitution Of 1863, he
decided that the construction put upon
that section, which was almost identical
with Section of Article 10, Of
the present Constitution, was in
effect construction of said section ! Of
article 10 Of the present Constitution, and
that under that construction section 43, so
far as it attempted to exempt agricultural
products, &C., was unconstitutional
This he had jurisdiction to decide. and
being the chief of the executive department
of the government the law as thus decided
must be taken as such BY the subordinate
officers of his department, and all other
officers whose duty it is to execute the law,
and its constitutiOnality can only be tested
when in its execution, it operates on the
citizen whose right it is to appeal to the
court, and by the proper proceeding have it
decided whether, whether the property
claimed by him 10 be exempt under section
43 is liable to be assessed. And if that
court should decide against him he could
then appeal to the Supreme Court Of Ap-
peals, which woull either sustain section 43
or pronounce it unconstitutional so tar as
it attempted to exempt said property.
But it is certainly not the right
of q subordinate executive or min
isterial officer whose duty it is to execute
the law as construed by the chief executive
who had jurisdiction to decide upon its
validity, to arrest its execution, and Justify
himself
He CANNOT JUSTIFY HIS INSTRUMENTATION
upon the ground that the Governor decided
wrong. His duty is obedience to the law
ms thus construed, and not resistance to law
fully constituted authority. IL each assessor
is permitted to decide for himself what
property shall be taxed and what exempt
and defy the Instructions Of the Auditor
made under the decision Of the chief exc
cutive Of the State, then you fail TO have
taxation equal and uniform; but have Ger.
tain kinds OF property taxed in one county
and exempt in another, and such state of
affairs is produced by failing and refusing
to obey the instructions of the Auditor.
Such n course if upheld and Justified by the
people of the State, tends directly, not only
to insubordination and the destruction Of
good Government, but 10 anarchy, and
confusion. Among the most important
laws that it is the Governors S
duty to execute are the revenue
laws. If the revenues are not collected
none of the departments Of the Govern
ment can live. The revenue is the life
of the Government; without that it
could not exist at nll And it is necessary
there should be no delay in its collection.
The machinery for its collection must be
kept in motion, and must not be stopped by
assessors or other inferior officers for the
purpose of testing the legality or illegality
of the tax law. 1t does not concern the
assessor: = such whether the tax is Illegal
or not.
ITIs HIS DUTY TO OBEY HIS sUPERIORs
as to what property is subject to taxation,
and if he refuses to assess such property he
will by mandamus be compelled to assess it.
and he will not be heard to deny the legal
ity of his instructions in his return to the
alternative writ. We will not therefore de-
eide the constitutional question raised in
in the return; we have seen that the re-
spondent cannot raise it, and the only par
ties interested in it, to-wit the Taxpayers Of
Brooke county, are not before the Court.
We deem it improper, therefore, in this case
TO decide whether the Governor was
right or wrong in his decision;
or whether the portion Of section a. refer.
red to in the return is constitutional or
void. 1t will be time to decide this ques-
lion when the proper parties are before the
Court for that purpose.
As it is a matter Of discretion in the
Court TO grant or refuse mandamus, if it
maniiestly appeared to us that the articles
enumerated in the alternative writ we're un-
der the Constitution exempt from taxation,
we would decline to issue the writ; not be-
cause the respondent has any right to make
such defense, as an excuse for his insubor-
dination, but because we would not be will
ing to throw the citizens in an expensive
field OF litigation, growing out Of the impo
sition of clearly illegal tax But We can
not say it is manifest to Us that the tax is
Illegal.
Waldron VI. Lee, Pick 329; Smyth vs..
Titeomb, 81 Ne. 2e5; State vs.. Gaines, .
Lea. 59I. The otherapoints in the return