Wheeling Sunday register. [volume] (Wheeling, W. Va.) 1882-1934, 1884-06-29
t Confirms the Governors Power
toIssue Sucn an Order and
Subordinates Must
. Obey,
But Whether the Order was Cor
rect or Not, II is Not
Called Upon
to Say.
Decision of an Important Case in
Which the Important Fea-
ture is Omitted.

tuI y 10 OtIikkOus
The case of State of West Virginia ex.
rel, Joseph S. Miller, Auditor vs., 7. H.
Buchanan, Assessor of Brooke county, was
decided by the Supreme Court of Appeals
on yesterday.
STATEMENT OF THE CASE.
On the 9th day of June, 1884, the relator
filed Lis petition, setting out the order of the
Governor and his instructions issued to the
assessors in pursuance thereof, instructing
the assessors to disregard SO much Of sec
ton 43 of chapter ~ of the Acts of 1881 as
exempted agricultural products, produce of
mines, salt and oil wells, manufactured arti-
cles and the products Of mechanical skill
and labor, remaining in the hands of the
producer and unsold on the first day Of
January and showing that said Buchanan
Assessor of Brooke county, had refused to
assess such articles Of property. On the
said 9th of June the Court issued an altern-
ative writ Of mandamus commanding said
assessor to assess said property, or appear
before the Court on the 18th Of June
and show cause why he had not
done so. He appeared on that day and
filed his return, in which among other rea-
sons, he stated he had not assessed said
property, because the same was exempt
from taxation under Section 43, of the act
of 1881, and that said act is constitutional.
On the 10Th and 10th of June the case
was argued by II. n. Russell, for the
relator, and w. p. Hubbard Judge Melvin
and J. B. Sommerville for respondent.
DECISION or THE COURT.
johnson, president, announced the unan-
emOus opinion OF the court, and among
other things said: Can each of the eighty
three assessors in the State in defiance Of
the Instructions of the Auditor, to assess
property decided by him to be taxable under
the law and each for himself decide, what
proferty he will assess aud what he will de-
clare exempt from taxation, and then sue
cessfully resist a percnptory mandamus, on
the ground thai the instructions were
illegal?
If he may do this why may not each as.
SCISSOR take different view Of
the law, and thus very much Of the
taxable property of the State 60 untaxed,
and the revenues of the State be diminished
much below the estimate Of the Auditor,
and the machinery of the Government be
clogged, or it may be entirely stopped.
If such view be correct, why did the
Legislature provide (Section 5, Chapter II,
Acts lSSl) that the Auditor should send
printed forms for the lists of tdrdble subjects
and give the assessors instructions as to their
duties2 Because it was clear to the Legis-
lative mind, that in no other way could the
equality and uniformity Of taxation requir-
ed by the Constitution be secured. Taxa
ton could not be equal and uniform if
eighty-three assessors could constructive law
and each for himself decide what property
was taxable and what exempt.
Can ministerial officer refuse TO obey
the instructions of his superior and then ex-
cuse himself for dsobedience on the ground
that his instructions were illegalH He can
not. Waldron Tvs. Lee, Pick, 1923; Peo-
pie VS.. Collins, Johns, 549; Smyth vs..
Titcomb, 81 Me-, 273; People VS.. Salomon,
"a ILL.,, 80.
In the last cited case the respondent had
disobeyed an act of the Legislature on the
ground that il was unconstitutional.
And it is said that in the case before us
is an act of the Legislature, which it was
the duty of respondent to obey.
PRECEDENT ESTABLISHED.
We are free to admit that if there had
been no decision Of what the law was, by
an authority, having the right to decide the
question, it would clearly have been the
duty of the assessor to have obeyed the re-
quirements of Section g. But the Cover
nor decided that the construction placed by
this court on Section |, OF Article <, of the
Constitution of 1863, in Railway Co, vs..
Miller. 10 W. W. 1876, was practically a
construction of Section |, OF Article 10, of
the present constitution, the effect of which
he decided, was to declare unconstitutional
so much of Section 43, of Chapter IL, as
exempted from taxation agricultural pro-
ducts, manufactured articles, DC. Did he
have jurisdiction to decide this question,
and the right to resort to the action he did
to have the exempted property taxed?
We maintain if he had jurisdiction
to determine this question, then it
was the duty Of the assessors to take his
decision in the matter, rs the law, and to
obey. without question, the instructions of
the auditor based on that decision. No one
will question the principle that all inferior
officers of courts in all cases where the
court has jurisdiction, are bound to obey
the order or mandate Of the court, and if
H. rafpua ~ nhav runtehad
If the Legislature, within its jurisdiction,
orders thing to be done by the Sergeant
at Arms of either house, the thing must
without question be performed, or the in
ferior officer will be punished for disobedi-
ence.
By the Constitution, See. l. Art. Y, it is
provided THE Legislative, Executive and
judicial departments shall be separate and
distinct" etc.
The departments ofthe government must
be kept separate and distinct, and each in
Its legitimate sphere must be protected.
otherwise the government fails. Slack vs..
Jacob 8, W. Va, Col. The Leyis-
lative Departments has certain pow
ers, the exercise of which can in
no respect be reviewed by either of the
others. The same is true of the Executive
and Judicial Departments.
In other matters the Supreme Court Of
Appeals is made the final arhiter In mat
tiers of this kind either of the other two de-
partments having jurisdiction over the sub,
iect, may decide what the law is, and it
must be regarded as the Law until it Is en-
ally decided to be unconstitutional By the
Court of last resort, to which the eonstitu-
ton equally binding on each Of the three
departments has committed the final deci-
sion; ami If that Court should be corrupt