The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-12-19

the Constitution of the State Section
IS, Article 4 of that instrument is on
the following words:
The General Assembly shall prescribe
and regulate the fees, salaries and emol-
uments of all officers provided for in
this article, but the salaries Of the judges
shall not be diminished during their
continuance in office. Section u of the
Constitution of 1916 provided that the
Governor, Justices Of the Supreme
courts of law and equity . shall have
adequate salaries during their contin-
uance in office. Revised Code of North
Carolina, p. 16..
I'm the amended Constitution of 1885,
the constitutional provision with refer
ence to the salaries of judicial officers
was changed and the following article en-
acted The salaries of the. judges of the
Supreme Court or of the Superior
courts. shall not be diminished during
their continuance in office Revised
Statutes of North Carolina, Vol. 1, page
23. Ard the same inhibition against
elimination appears in the article quoted
above from the Constitution adapted in
1868"
Under the Constitution of 1176, 1t will
be observed that the judges were to re-
ceive adequate salaries" What was
an adequate salary?" remarked Attorney
General Batchelor, in 1856. in passing
upon ID question similar to the one sub
mittcd, was ex necessitate to be deter
mined by the Legislature, which had the
power of fixing it, AS this was dis
cretionary power, that body could declare
an adequate salary" to be any sum it
stroC Ita1A 1a
to abuse, and though it would have been
a violation of the spirit of the Consti-
tuition to have fixed these salaries at a
sum clearly inadequate, yet the Legis-
lature, being unchecked by any other
department of the government in the ex-
ercise of this discretion could violate
at will the spirit of this part of the Con-
stitution. BY it the power of reducing
the salaries of the judges during their
continuance in office, is taken away. They
may be increased, but cannot be dimin-
ished But to secure them effectually
against diminution, this provision
should extend to indirect as well as to
direct legislation The power to lessen
these salaries by direct legislation is now
| nowhere claimed, yet the passage of this
act is an assertion by the Legislature of
the power to diminish them Indirectly
and if the Legislature ca5 such power
| it can be used to any 8 90 which
| in its Utisu0iiI it may ut te
carry it.
While Attorney Genera Hach.trr. sH
| his opinion, made no reference 70 the
case of McCulloch VS.. State of Mary
land, 4 Wheaton, p 316-207, his argument
is sustained by the reasoning of Chief
Justice Marshall, who delivered the
| opinion of the court in that case: that
| the power to tax involves the power to
| destroy" This doctrine is empiified in
many cases decided by the Supreme
| Courts of other Jurisdictions, declaring
that the internal revenue acts of the
Federal government requiring stamps on
processes of State courts are unconsti-
tutioral interfefences with their proceed
ings Smith VS.. Short, 40 Ala 1885,
Craig VS. Dimock, AZ III, 30S; Warren
VS. Paul, 33 In. 276; Fifield VS.. Close, Is
Mich, sos; Walton VS.. Bryenth, Howards
Practice Reports 357; Jones VS. Keep, 10
Wis, 800; Bumpass VS.. Taggart, 26 Ark.
39S: Forcherner VS.. Holly II Fla, 279;
Latham VS. Smith, As ILL.,, 29; Wallace
VS.. Craven, 81 Ind, 534 Pargond VS..
Richardson, 80 La. An, 1886; Sarrow VS..
| Elfler, 4S Tenn. 633; Carpenter VS.. Smell
ing, 81 Mass, ASP; Davis VS.. Richardson,
| 45 Mass, 499.
The principle announced in McCulloch
VS.. the State of Maryland, supra, has
been affirmed by the Supreme Court of
this State. In King VS.. Hunter, 65 N. c.,
at PIP. 612-613, Reade, j., says: "It has
been considered how far an office or an
officer, may be taxed. And it has been
considered as settled that the State has
| no power to tax an officer of the United
| States, or vice versa, because the power
| to tax includes the power to destroy as
| was said by Chief Justice Marshall in
| McCulloch VS. State of Maryland,
Wheaton, p. 207. And if a State were
alowwed to tax a United States officer
one dollar, it might tax him to the full
amount of his salary, and thus arrest
alsl the measures of the government.
And so the United States cannot tax
a State officer for the same reason.
Upon a similar principle the Federal
courts have held that the United States
government cannot tax the income of
State officials
The case of the United States VS..
Ritchie, Federal cases, Book 27, case
16, 1913, involved the right of the Federal
government to tax the income Of the
States attorney for the County of Fred
rick, in the State Of Maryland. The
court held that "the United States has
no more right to tax these agencies than
the State government has to tax the
means and agencies to carry on the Fed
eral government" In Day VS.. Bufffng-
ton, Federal Cases, Book Z, case 1915,
Clifford, Circuit Justice, held that 1.-The
salary of judge of the Court Of Record
ayable out of the Treasury of State,
is not legally taxable as income under
the internal revenue laws Of the United
States" This ruling was affirmed by the
Supreme Court of the United States. rs
L. c., 113
In Freedman VS.. Seigle, Federal Cases.
Book 9, case $3.50, it was held that ''the
United States Court impose a tax on the
salary of judge of Superior Court of
the City of New York by imposing tax
upon such salary as the income of such
Judge"
In Dobbins VS.. Commissioners of Erie
County, Is Peters, at page 450, Mr. JUS
tice Wayne, speaking for the Supreme
Court of the United States, says: Does