The news & observer., 1897-04-24
\ DISSENTING OPINION FILED
The Decision Means That the Appro-
priations Mace by the leg'sla-
ture Cannot be Paid
in Full.


There shall be levied and
collected annually an ad
valorem tax of twenty-one
and two-thirds cents for
State purposes. three and
one-third cents for pensions,
eighteen cents for public
! schools, making forty-three
cents on every $500 value
of real and personal prop
(erty in this State. ,oo-
The Revenue Act of 1893.
The decision of the Supreme Court IN
the Revenue Act case wa syesterday
handed down. 1t is-written by Judge
Montgomery and over-rules the decision
of the lower court. 1t holds that the
Constitution, SO far as taxation IS con-
cerne,. is not self f-eNecuting; that 1T
does not levy taxes, but merely directs
how it shall be done; that the new Rev
enue Act violates the equation pre-
scribed by the Constitution and is there
fore. not law: that this being so, the old
act 1885 is in force.
In this opinion Chief Justice Falrcloth
! and Justice Furches concur. But JUS
ktices Clark and Douglas dissent Ilark
writing the opinion. In this the broau
ground is taken that the Constitution
touching the taxation equation is SELF
axacnting. and the decision of the lower
court is sustained.
The decision of this case means much
TO the State. which is already. even un-
der the increased taxation. practlcaliv
bankrupt 1t means Il great reduction III
the revenues of the State-from 40 TO 10
cents On 500 worth of property ana from
$1.3S to 81 % on the poll. 1t means thaI
none of the extra appropriations, ana
many of the regular ones. made by the
last I legislature cannot be paid. 1t
! means that the State Treasurer, aIter
4 having the regular expenses of the State
i GOVERNMENT. will have to disburse the
remainder pro rata. The opinion of the
cpurt. in full, as set forth by Justice
Montgomery in his opinion, is as follows
The General Assembly of North Caro-
lima at its session of 1897, in an act en-
titled can Act to Raise Revenue" LAID
the capitation tax at S1.29 and tax OF
AZ cents on every 500 value of real
and personal property. Section l OF AT
ticle v of the Constitution provides that
ssthe General Assembly shall levy capl-
tation tax on every male inhabitant IN the
state over 81 and under 80 years of age,
which shall be equal on each to the tax on
property valued at $500 in cash
and the State capitation tax combined
shall never exceed 50 on the head. Upon
the face Of the act it appears that the
enuation fixed by the Constitution be-
tween the capitation tax and that on
property has not been preserved. The Au-
ditor who is required to send out forms TO
the assessors. &c. deemed it his duty to
follow the words of the act and to place
on the forms the capitation tax as fixed by
the act at $129 and was at the COM
mencement of this proceeding about to
send out the forms to the various coun-
ties. The plaintiff, in whom is vested
by the Constitution the supreme eXecu-
tive power of the State, believing the
property tax having been levied by the
Legislature to the amount OF 4o on the
500 worth and that body having under
taken to levy a capitatlon tax, though
an erroneous one, that the CONSTITUTION
itself adjusts and fixes the capitaEon
fax at 81 .3S Notwithstanding the errone-
Gus levy of $1.29 for that purpose, mas
brought this action to compel the Audi
for to place the amount of the capita
tion tax ON the forms at 9l.oo-the a.
monnt laid bv the act on $500 worth Of
property-instead of at $l.29 as appears
in the act. There is no allegation of will
ful or contumacious refusal on the part
of the Auditor. the plaintiff simply alleg-
nf
duty is. is erroneous. There can be
no serious question concerning the power
Of the Governor to bring an action like
this (mandamus) against the defendant,
If defendant failed or refused to per-
form a specific duty required of him by
an act of assembly. The right of bring
such an action by the Governor is con-
ferred by section 1920 of The Code-he is
empowered and required to supervise
the official conduct of all executive and
ministerial officers" and to ''see that all
Offices are filled and duties thereof per-
formed, or in default thereof apply such
remedies as the law allows" Besides
this express statutory authority for the
commencement of mandamus proceedings
against public officer in cases where he
refuses to perform a specific duty Tequlr-
cd by law, this court in 6S n. &. 5O2,
said: ''It is settled that when an act Of
the Legislature directs an executive of
ficer to do a specific act which does not
involve any official indiscretion, but is
merely ministerial a mandamus
will be ordered" and in JOG N. G.. S3, it
was decided that an action could be main
tanned to compel public officers to dis
charge mere ministerial duties not in
volying in official discretion. The plain
tiff has performed his duty with the best
;nterest Of the State in view in COM
mencing this proceeding, and the deci-
sion of this court will no doubt be a
great relief to the defendant.
T,be demurrer Of defendant raises the