The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-12-19
Judges Salaries not Sub
jeCt to Tax.
Continued from First Page.)

1t certainly mas SuCH an tllCNl'
In the foregoing cases the decisions OF
the courts rest upon the principle that
the government of the United States
has no right to tax, the means, agencies
and instrumentalities of the State gov
eminent, and neither has the State gov
eminent the right to tax the means,
agencies and instrumentalities of the
Federal government. In the case of
Sweat VS.. Boston, H. and E. r. Co.,
Federal Cases, Book %, case 1864, Cliff
ford, Circuit Justice, says: by the
word means is meant the revenue,
taxes, and public securities, as applied
both tc the United States and the several
States, and the rohibiton extends to the
salaries of the = judicial officers
=
Section s, Article 1, of the Constitu-
ton Of North Carolina, rovides that;
'"rhe legislative, executive and supreme
judicial powers of the government ought
TO be forever separate and distinct from
each ether" Thus each shall act within
its own sphere, just as full las if the line
of divisions were traced by landmark
and moments visible to the eye"
The constitutional provision herein
before recited effectually removes from
the domain of legislative enactment Of
any statute, the effect of which is to
diminish, either directly or indirectly,
the official salary of a judicial officer
during the continuance of his term, when
the Constitution imposes limitation upon
legislative action, it must be assumed
that the people who framed the instru-
ment. through their representatives re-
cuff nio tly INN
tant 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 provis-
ion. The Constitution of 1868 seems to
have had in mind that principle, recog
niZed from the beginning gy 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 it's significance. If the power
10 tax is conceded, the barriers erected
by the constitutional limitation are swept
away, and one branch of the State gov
eminent is placed at the mercy of an
other If the General Assembly has the
power to impose tax of one per cent.
on the official salary of a judicial Of
ficer, upon the some principle 1t could
lay duty which would cripple, If 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 reVo-
buttons, the exercise of such destructive
power on the part of one branch of the
government toward another, it is not
likely to be involved; but the improb
ability OF the nom exercise 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 taxi is
improbable, has no force whatever in de-
termiEing the existence or non-eXistence
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 whre power of destruction has
been suppressed, it is always possible that
it may be exercised, although it may
be very improba BILE"
The foregoing citation is from the case
of Fif1eld VS.. Close, supra, 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 tax of three per cent.
on the salaries of all the officers in the
employment of the United States govern
ment, the Treasury Department held that
the judicial officers We're embraced in
its terms. On February 10Th, 1868, 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 Ill question, as you interpret it,
the compensation of every
pudge three per cent, and if it can be
diminished to that extent by the name
of 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 Toney as we'll as in the case of
Commonwealth VS.. Mann, 5 Watts and
Serpcant, p. 403, cited by Attorney Gen
eral Bachelor appendix As, n. c. Re
porD the tax levied was deducted from
the compensation fixed by law and re-
tanned i nthe Treasury. But in what
way the method of collecting the tax
imposed upoa the salary effects the
question involved, l am utterly unable to
perceive. The principle announced by |
Chief Justice Toney, as we'll as the Su- |
preme Court of Pennsylvania, in Com |
monWealth VS.. Mann, supra, operates |
upon the power to tax, and not upon the |
incidental means employed to collect.
In City Of New Orleans VS. Lea, it is |
held by the Supreme Court of Louis |
lana, IA La An, ID that "the article |
of the Constitution which held that the |
judges, both the Supreme and the Su- |
perior and the Inferior courts shall at |
stated times receive a salary which shall |
not be diminished during their continu |
ance in office, eXempts the salary of q |
judge from taxation" The case of Me /
Culloch VS.. Maryland, supra, is cited and |
the court says: IF the right to tax the |
salary of judges be conceded, there would
be nc limitation, but the discretion of the |
Legislature to do it, to such an extent |
as virtually to abolish the means of con-
Quoting the judicial department. Its ex-
oh 70