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

THE ASSESSMENT CASE.
The Auditor Upheld and tls e
Assessor Compelled to List
the Disputed Property.
The case of State OF West Virgin
la ex. REL, Joseph s. Miller, Auditor
vs.. T. H. Buchanan, Assessor of
Brooke county. was decided by the
Supreme Court of Appeals on Satur-
day.
STATEMENT OF THE CASE.
On the eth day Of June, 1884, the
relator filed his 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
section 43 of chapter IL of the Acts
Of 1881 as exempted agricultural pro-
ducts, produce of mines, salt aud oil
wells, manufactured articles and the
products of mechanical skill and
labor, remaining in the hands of the
producer and unsold OH the first day
of January, and showing that said
Buchanan, Assessor OF Brooke coun-
ty, had refused to assess such articles
of property. On the said 9th of June
the Court issued an alternative writ
Of mandamus commanding said as
SCISSOR to assess said property, or ap-
pear 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 reasons, he stated he
had not assessed said property, be-
cause the same was exempt from
taxation under Section 43, of the
act OF 1881, and that said act is con-
stitutional.
On the 10th and goth of June the
case was argued by III. M. Russell,
for the relator, and w. P. Hubbard ,
Judge Melvin and ]. B. Sommerville
for respondent.
DECISION OF THE COURT.
Johnson, president, announced the
UNANIMOUS 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 property he will assess and
what he will declare exempt from
taxation, and then successfully resist
q peremptOry mandamus, on the
ground that the instructions were
illegal Z?
II he may do this why may not
each assessor take a different view OF
the law. and thus very much OF the
taxable property of the State 20 un-
taxed, and the revenues of the State
be diminished much below the esti-
mate Of the Auditor, and the ma
chinery of the Government be clog.
ged, or 1t may be entirely stopped.
1t such q view be correct, why did
the Legislature provide (Section 5,
Chapter IL, Acts 1881 that the Aud
itor should send printed forms for
the lists of taxable subjects and give
the assessors instructions as to their
duties ? Because it was clear to the
Legislative mind, that in no other
way could the equality and uniform
Sty OF taxation required by the Con-
stitution be secured. Taxation could
not be equal and uniform if eighty
three assessors could cOnstrue the
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 excuse himself for disobe-
dience on the ground that his instruc-
lions were illegal? He cannot.
Waldron VS.. Lee, Pick, 1923; People
VS.. Collins, 7 Johns, $40; Smyth VS..
Titcomb, 81 Me-, 273; People VS..
Solomon, "a ILL.,, SO.
In the last cited case the respon-
dent had disobeyed an act of the
Legislature on the ground that it
was unconstitutional.
And it is said that in the case be-
fore us is an act of the Legislature,
which it was the duty of respondent
to obey.
A 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 43. But the
Governor decided that the construc-
ton placed by this court on Section
LOT Article s, of the Constitution
of 1868, in Railway Co, VS.. Miller, 10
w. Va, 4S6, was practically a con-
struction of Section l, of Article 10,
of the present constitution, the eff
feet of which he decided, was to de-
clare unconstitutional SO much OF
Section 43, OF Chapter ~, as exempt
ed from taxation agricultural pro-