Martinsburg independent. [volume] (Martinsburg, W. Va.) 1875-1900, 1884-07-05


construction of said section l of ar
ticle 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 Of
flcers whose duty 1t 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 lproper proceeding have it de-
cided whether, the property
claimed by him to be exempt under
section As is liable to be assessed.
And il that court should decide
against him he could then appeal to
the Supreme Court Of Appeals,
| which would either sustain section
| 43 or pronounce it unconstitutional
so far as it attempted to exempt said
] property.
But it is certainly not the right
of subordinate executive or min
| isterial officer whose duty it is to ex-
ecute 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 INsUBOR-
DINATION
upon the ground that the Governor
decided wrong. His duty is obedi-
ence to the law as thus construed,
and not resistance to lawfully con-
stituted authority. If each assessor
is permitted to decide for himself
what property shall be taxed and
what exempt, and defy the instruc-
tion of the Auditor made under the
decision of the chief executive of the
State, then you fail to have equal
| and uniform taxation; but have GER
tain kinds of property taxable in one
county and exempt in another, and
| such state Of affairs is produced Dy
failing and refusing to obey the in
structions of the Auditor. Such q
course if upheld and justified by the
people of the State, tends directly,
not only to INSTRUMENTATION and the
destruction of Government, but to
anarchy and confusion. Among the
most important laws that it is the
Governors duty to execute, are the
revenue laws. If the revenue is the
life of the Government; without that
it could not exist at all. And 1t is
necessary there should be no delay in
its collection must be kept in motion.
and must not be stopped by assessors
Der other inferior officers for the pur-
pose of testing the legality or Illegal
ity of the tax law. 1t does not con-
Germ the assessor of such, whether
the tax is illegal or not.
1T rs HIS DUTY TO OBEY HIS SUPER
TORS
as to what property is subject to
taxation, and ii he refuses to assess
such property he will by mandamus
be compelled to assess it, and he will
not be heard to deny the legality of
his instructions in bis return to the
alternative writ. We will not there
fore decide the constitutional ques
tion raised in the return; we have
seen that the respondent cannot
raise it and the only parties interest
ed in it, to-wlt, the taxpayers of
Brooke county, are not before the
Court, We deem 1t improper, there
fore, in this case to decide whether
the Governor was right or wrong in
his decision; or whether the portion
Of section 43, referred tc in the re-
turn is constitutional or void. It
will be time to decide this question
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 a man
damus, if it manifestly appeared to
us that the articles enumerated in
the alternative writ were under the
Constitution exempt from taxation,
we would decline to issue the writ;
not because the respondent has any
right to make such defense, as an
excuse for his characterization, but
because we would not be willing to
throw the citizens in an expensive
field OF litigation, growing out of the
imposition of a clearly illegal tax.
But we cannot say it is manifest to
us that the tax is illegal.
Waldron VS.. Lee, Pick 329;
Smyth VS.. Titcomb, 81 Me. 285;
State VS.. Gaines, 8 Lea. 594. The
other points in the return show no
reason why the writ should not issue.
The peremptory writ of nadndamsts
must issue.
Important.
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