The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1884-06-30

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NILE n. 'SalNssl.a .5l1 RODERr Elliott.
SUPPLEMENTAL ASSESShRN!
The Supreme Court Says Tint Assessor
Must 0bey-The Constitutional Poin
Not Touched. '#'U ~. EVAPORATION
President Judge johnson delivered, OF
Saturday, the unanimous opinion Of tn
Supreme Court Of Appeals in tho matter o
the State Of West Virginia ex. rel, JOSEPH
s. Miller, Auditor, va. T. II. Buchanan
Assessor OF Brooke county. IA
On the 9th day Of June, 1881, tho rclato
filed his petition, setting out the order O
the Governor, and his instructions issuet
to the assessors In pursuance thereof. In
structing tho ASSESSORS 10 disregard 80 much
oil section ~ Of chapter 32 OF the Acts Of
1851 Is exempt agricultural products, pro
duce OF mines, salt and oil wells, manufac
tured articles and products OF mechanical
skill and labor, remaining In the hands o.
tho producer and aneod on the first day O.
January, and showing that said Buchanan
assessor oil Brooke county, had refused te
aesess such articles Of property. On The
said 9th Of June the Court issued an alter
native writ OF mandamus commanding
said assessor to assess said property Of
appear and show cause why he had moi
done 80. He appeared on that day snt
LIED his return, IN which among Other
REASONS, he stated that he had not assesseJ
said property, because the same was exempl
from taxation under Section 40, Of the Aci
oil 1881, and that said act Is constitutional
On the l9.h and 10th of June the csse
was argued by Il. NJ. Rueaell, for the relator
and W. I. Hubbard, Judge Melyin and ]
b. Sommerville for respondent.
5afras TIE SYLLABUS. @
Following is the syllabus Of the opinion;
l. The Legislature, executive and judicial
departments OF the government must be
kept separate and distinct, and each in ia
legitimate sphere must be protected,
2. Each department Of the Government,
haYing jurisdiction over the subject may
decide what the law is, and it must be- m.
garded as the law until it is finally decided
to be unconstitutional by the court Of laeI
resort, 20 which the Constitution, eoually
binding upon each Of the Department., has
committed the final decision, and il tba,
court should be corrupt or arbitrary in the
exercise OF its powers thus committed to It.
the same Constitution has provided Az
efectnal decision OF the high court Of i'm.
parchment
8. The constitution vests the chief exc
cutive power in the governor and REQUIRES
that he shall take caro- that the lava be
faithfully executed. Under this positive
requirement Of the constitution, the gover.
nor must under, the oath Of Office he has
taken, be vigilsnt, and with all the power
at his command, require the execution Of
the laws valid which the legislature has
passed, because in i!s wisdom it passes
such laws as the good Of the state REQUIRES,
and none other, and II the chief executive
does not see to their faithful execution, he
does not discharge his duty, aud the object
OF the legislative department to the exten,
tho laws have not been executed, has
failed. ~ n. $3.50
A. Before he executes law he must OF
necessity decide whether the act Of the
Legislature is constitutional and valid OF
unconstitutional and void. y
s. The Governor, having Jurisdiction Of
the subject, decided that the effect Of the
decision OF the Supreme Court OF Az.
peals in Railroad company Va. Miller. ai,.
ditor, 10 W. Va. 436, was to declare uncon.
stitutional and void section 40 OF chapter
IL OF the Acts Of 1881, so far ts it exempt.
ed from taxation. certain property there
specified, and tina. said chapter u was A
complete tax law, without any portion of
said section, ind requested the auditor.
who has tho oversight Of the assessors in
the various counties and districts In tho
State, to instruct the said asseesors in their
assessments TO disregard said portion Of
eald section and ss'ess the property there.
in attempted to be exempted, and the au.
ditor gave said instructions; the law go
constructed by the chief executive and
given by the auditor in his instructions to
the assessota WAS binding on them,
.. The constitutionality of said sec.
ton 43 can be tested by the tnx. payer when
the law as 60 delivered by the Governor ia
made 10 operate on him. It ia bis ripht.
as citizen, to appeal to the court by The
proper proceeding and have it decided,
whether the property claimed by him to
be exempted nnder section 43 OF chapter
II OF acts Of 1851 is liable to be aseeesed.
And il that court should decide against
him, he could then appeal to the Supreme
court OF Appeals, which would either sne.
tain section 43 or declnre it uncorstItn.
tional so lar Gs 1t attempted to exempt eaid
property. ~ f.a4.7 ~
: Z. But 1t is not the right Of q subor.
dinate or. ministerial officer to arreet
the execution Of the law Us construed nv
the Chief executive, and he cannot Justify
his characterization upon the ground that
the chief executive had decided wrong.
His duty WAS obedience to the law as TINS
construed. @ Iao q
s, 1t Is no concern OF tho assessors as
such, whether the tax is illegal or valid. It
is his duty to obey the instructions Of his
superior as to what property is subject to
taxation, and If be refuses to assess such
property and a mandamus is prayed to
compel him to assees ouch subjects az he
has been by the Auditor under the de.
cision OF the Governor instructed to enter
for taxation, he cannot shield himself BY
denying the legality OF the instructions.
The question whether the said section - is
or is not constitutional is not decided in
this suit, as it is deemed that such decision
is neither necessary or proper in this pro.
ceeding.
0. AS the writ Of mandamus is a discre,
tionary writ, if 1t maniiestly appeared to
the court that the articles enumerated in
the alternative writ were under the law
exempt from taxation, the court would de.
cline 10 issue tho writ; not because the re.
spondent has any right to make such de.
Tense, or rely upon such reason as m ex
cuse for his subordination, but because the
court would not be willing to throw the
citizens in an expensive field of litigation