The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-06-16
THESE ARE EXEMPT
Governor, Heads of Executive
Departments, Judges.
Lawyers at Morganton Hold That the Attorney
Generals Opinion on Taxing State CHI
GERS Has Been Misconstrued.


To the Editor: The lawyers here are
surprised that the newspapers generally
have misconstrued the opinion of the
Attorney General. They draw the un"
warranted inference that he holds the
salaries of all public officers to be eX-
empt from taxation. The question SUD
mitted by the Treasurer was whether
1.-The salary of a judge is liable to an
income tax under the Revenue ACT.
He refers to the opinion of Mr. Batche-
Tor, given at the request Of the Su-
preme Court, to save the judges from
giving an opinion upon question IN
which they had personal interest. Mr.
Gilmer says that the Constitution of
1868 contains the same provision upon
which Mr.. Bachelors opinion was
based, that 1.-THE salaries of the judges
shall not be diminished during their
continuance in office" So both Mr..
Bachelor and Mr. Gilmer have held that
the Constitution must be construed to
exempt judges and no other person,
whether officers or private individuals
from the payment of tax upon their
salaries. Section IS Article ~, eX-
empts no other officers mentioned in
that Article but judges.
The Attorney General was not asked
whether the salaries Of executive Of
ficers were liable to an income tax.
This question would have involved a
construction of another provision of the
Constitution Cart. 3, Sec. 15) which is
as follows
THE officers mentioned in this Ar
ticle shall, at stated periods, receive
for their services a compensation to be
established by law, which shall neither
be increased nor diminished during the
time for which they shall have been
elected, and the said officers shall re-
ceive no other emoluments or allowance
whatever"
The officers mentioned in Article 5
of the Constitution are Governor, Lieu
tenant Governor, Secretary of State.
Auditor, superintendent of Public In
struction and Attorney General. The
exemption in Article differs from that
in Article 4, in that the one protect"
all executive officers mentioned in the
same article from such taxation, while
the exemption in article 4 extends to
judges but not to clerks of the various
courts and solicitors mentioned in the
same article, whose fees salaries and
omoluments" the General Assembly is
expressly empowered to prescribe and
regulate"
1t would have been vain thing to
provide Tin Art. 1. Sec. 81, that.
THE legislative, executive and judi
cial powers of the government ought
to be forever separate and distinct from
each other" if it had been left in the
power of the Legislature to diminish
without limit the salaries of Governor
and the heads of the executive depart
ment provided for by the Constitution
as well as the salaries of justices of
Supreme Court and judges of the
courts. The right to tax a salary in
wolves the right to diminish it, and if
such power were vested in the Legis-
lature, it could do indirectly what the
organic law expressly prohibits it from
doing directly These provisions were
necessary supplements to the general
declaration tlfat the three departments
should be separate and distinct, and
within their own spheres independent
of each other, except where there is an
express right of supervision provided
for.
1t follows therefore, that the Attor-
ney General might have added the
Governor, Lieutenant Governor and the
officers at the heads of the different
executive departments to the list of
exempt officers, though his opinion was
only asked and given as to judges; but
that he could have added no other
public officers, because the Consttu-
tion leaves them in the same category
with the individual taxpayers.
1t follows as a corollary from the
principle laid down by Bachelor and
Gilmer that the Governor and heads of
executive departments are not liable
but that all other officers, except
judges, are liable The newspapers of
the State have generally announced,
however, that no State officers are liza
BILE to an income tax and the conse-
quence is, that solicitors clerks and Of
ficers of penal, charitable and educa-
tional institutions will refrain from re-
turning their Salaries for taxation, un-
less the Treasurer shall invite the At
torney General to give an opinion as
to their legal status.
A. c. AVERY, JR.
Morganton, n. c., June IA 1901.