The farmer and mechanic. [volume] (Raleigh, N.C.) 18??-19??, 1902-12-23

IlC NCuSIltulACh liEoSNC
legislative action, it must be assumed
that the people who framed the instru-
ment. through their representatives re-
parded the matter as sufficiently lmp0r-
tent TO be removed from the control of
their agents, unless sitting as members
Of a body of equal dignity with that
which enacted the constitutional prOVls-
ion. The Constitution of 1868 seems TO
nave had in mind that principle rec0g-
nized from the beginning by our courts,
that the unrestrained right to tax IN
wolves in law the right TO destroy The
word "unrestrained' is used with due
regard to its significance. If the W
to tax is conceded, the barriers erected
by the constitutional limitation are swept
away, and one branch of the State gov
is placed at the mercy OF an
other. If the General Assembly has the
power to impose a tax of one per cent.
on the official salary of a judicial Of
ficer, upon the some principle it could
lay a duty which would cripple, II not
completely paralyze the whole system of
the administration of justice in State
tribunals. 1t is freely admitted that,
that in the absence of dire political Tevo-
lutions, the exercise of u destructive
power on the part OF one branch OF the
government toward another, 1t is not
likely to be invoked, but the improb-
ability of the of the power
does not effect the principle.
Upon this point l quote the follow
ing language from the Supreme Court
Of Michigan: The argument that such
~prohibitory action the power to tax IS
improbable, has no force whatever in de-
termiEing the existence or nOn-eXlStence
Of the power. There is no legislative
power possessed by any Legislature
which it may not lawfully carry to ex-
IRENE, where extreme action is deemed
expedient by the majority of the mem
bers. And where a power of destruction
has been suppressed, it is always possible
that it may be exercised, although it
may be very improbable"
The foregoing citation is from the case
of Fifield VS.. Close, upra, and that
learned jurist, Judge Cooley, concerned
in the opinion of the court. The Fed
eral Constitution contains a provision
similar to that appearing in our Own
State-that the salaries Of the judges
shall not be diminished during their con-
tinuance in office. Under an act of Con-
greSS, imposing a tax of three per cent.
on the salaries of all the officers in the
CIIlplOv lltll u III HilCd oldlcS SoNtl Il
ment, the Treasury Department held that
the judicial officers were embraced in
it's terms. On February 10th, 1863, Judge
Torey, who was then Chief Justice of
the Supreme Court of the United States,
addressed a letter to the Honorable, the
Secretary of the Treasury, and from it
the following paragraph is taken: THE
act in question, as you interpret it,
OiminiShpS the POmDpnSatiQn of every
judge three per cent, and if 1t can be
diminished to that extent by the name
of a tax, it may, in the same way be
reduced, from time to time, at the pleas
ure of the legislature It is true that
the act of Congress passed upon by Chief
Justice Tory, as well as in the case OF
Commonwealth VS.. Mann, 5 Watts and
Sergeant, p. 403, cited by Attorney Cen
eral Bachelor appendix as, N. G.. Re
porto the tax levied was deducted from
the compensation fixed by law and re-
tanned i'll the Treasury. But in what
way the method Of collecting the tax
imposed upon the salary effects the
question involved, | am utterly unable tt
perceive. The principle by
Chief Justice Torney, as we'll as the SUI
preme Court of Pennsylvania, in Com
monWealth VS.. Mann, supra, operates
upon the power to tax, and not upon tho
incidental means employed to collect.
In City of New Orleans VS.. Lea, it is
held by the Supreme Cour of Louis
lana, IA La. An, ID that the article
of the Constitution which held that the
judges, both the Supreme and the SUI
perior and the Inferior courts shall al
stated times receive a salary which SHOULD
not be diminished during their continu-
ance in office, eXempts the salary of q
judge from taxation" The case of Nc
CullOch VS.. Maryland, supra, is cited anC
the court says: IF the right to tax the
salary of judges be conceded, there would
be NO limitation, but the discretion Of the
Legislature to do it, to such an extern
as virtually to abolish the mean of con.
Quoting the judicial department. It's ex-
istence ought not to depend upon the
will of a coordinate Department.
I find only one case which holds tina
the salary of a judge, protected by {
constitutional provision similar to ours
IS liable to taxation, and that is The
case Of the commissioners of Northum.
berland County vs.. Chapman, decided by
the Supreme Court of Pennsylvania il
1922 Rowle, p. 73. The opinion i
brief and no authorities are cited. TIL,
AOClI lily 1dlu uoNu IL III III COlSOIduCs
with the reasoning employed by the SAM
court fourteen years later in Common
wealth Us. Mann, supra.
TWO at least of my predecessor
in office AVE held that tn.
official salary of a iudgt
is not listed to taxation; Attorney Gen
eral Bachelor, supra; and Attorney Gen
eral Walser, Public Document 1899, Docu
ment 8, p. 90; and as far as l am ad
vised this administrative construction O
the constitution has, until recently bee,
accepted as the correct Interpretation O
the constitution.
Following the paragraph hereinbefor
cited from King vs.. Hunton, supra. MI
Justice Reade, speaking for the Suprem
Court Of our State, says: ct is no
doubted, however, that the State ma
tax any other property, the object bein
revenue and not the distinction of tn
Office. But the people have been so zeal
Gus even of this power that it is proyi
ded in the constitution, that the ~salarie
of the most important officials shall no