The semi-weekly messenger. [volume] (Wilmington, N.C.) 1897-1908, 1902-06-20
Are judge. liable for an u.eeme
Taxi


eral wrote aa opinion to the Honorable
Il. r Lacy. stste treasurer. upon the
subject Of the taxation OF the salary Of
the judges TINS beiaE a question in
which the psoTlc OF the state are inter
ested. 1 think il not Improbable to dis
cuss 1t from a legal standpoint:
He says. Al the cases which I hay.
examined. a~nn'unce the principle that
where the constitution provides that n
salary shall not BE- diminished during
an official term. that the SALARY Ia ex-
ernpt from taxation" Citing the csc
OF Hepburn vs. Mann. ) Watts and Ser
geant. 4o1. Tbs section OF the con<,,,u-
ton under investigation is "a follows.
The general assembly shall prescribe
and regulate the foes. salaries and
emolumenLs Of all officers provided for
in this article. but the salaries Of III.
judges shaI i.ot be diminished dur.ax
'heir continuance in office. article 1
section Is.
In the caxe cited, Commonwealth. on
relation o. Hepburn vs.. Mann. supra.
the facts d. rs follows: The legislature
or Pennsyl .ani5 on May 4. Isii. passed
& law. containing among other things
the following clause: There shall b..
annually assessed upon salaries and
emoiuments OF Office. etc. hich ex-
coed $500. q taxation OF . per cent ON
every dollar above $500, and thar when
the salary Is paid TO any officer BY the
treasurer. lie snail retain the amount
or tax: and by virture OF this statute.
the tax provided for was retained by
the treasure out OF the Judges salary.
ana IN this action the constitutional
ity or the statute was evolved.
The court Sa: = in the opinion, The
salary Itself IS taxed and this tax is
deducted at the treasury. so that the
judge instead OF receiving the amount
nxed by law. receives less. IL Is. there
fore, a mockery 10 tell him he Is in the
enjoyment OF a salary which has not
been diminished during his continuance
in Office etc This method diminished
the salary. upon payment. and as this
court very properly held. was uncon-
stitutional. hE: would this be true after
the payment OF the salary?
The state may authorize its sub-di~
visions to tax state. county or township
offices. If Il shall be deemed proper TO
do so. In the matter OF Justices. u
Grattan 5i5. Cooley on Taxation. 5s4.
and in the case of Gilkersin against the
justices, tine legislature had passed an
Act authorizing the county courts and
the city authorities to assess a tax on
the office o. sheriff and sergeant. for
the purpose &C the county n city. Ac-
cordingly, i tax OF four hundred dollars
was levied On the sherifTs Office Of
Frederick coCcty. The sheriff appealed
TO the supreme court, and in the opinion
the court says: The Act authorizing
the assessment on the office OF sheriff
and sergeant - not unconstitutional.
"a Va. Reports, 5E."
These cases show hat the tax ian
- - ~
question Is. Lies the fact that the Judge
would Ia u pay tax upon a salary OF
fifteen hundred dollars. the amount i'll
excess OF mis- exemption. diminish his
salary duItrg his continuance in office,
and consequently be unconstitutional.
because If 1t does not diminish. II can
not be unconstitutional.
1t is wei: said in Manhattan Com
pany VS.. Blake. After the salary Is
paid to the judge, it is his money and
no tax is put upon the salary which
he expects to receive during his con-
t%inuance in Office" AS L. 5. 426.
Again, 1t IS said in Melcher VS. the
City of Bos On, The tax upon income
is not a tax upon the office directly. 1t
would seem to be only carrying out the
great principle of assessing taxes pro-
p~ortionateiy and equally according to
the ability of the persons taxed Its
form is un~objectionable. pointed at no
particular c.css whether office holder
or otherwise.
The legislature OF North Carolina, at
it's session In 1901 passed the following
Act:
Section %, That the blanks for list
ing taxes shall. contain the following
questions In regard to income: What
was your gross income during the
twelve months ending June first?
First-From State or United States
bonds?
Second-Fruhh salary and fees7
Third-From annunities2
~Fourth-fro:n trades or professions?
Fifth-Fro.n any other source. except
from exemption, one thousand dollars?
Section 30 provides IN all gross in
comes. a tax shall be levied as follows:
On the excess over the amount legally
exempt. n ger cent.
The above taA shall not be levied up
on the income derived from property
already taxed, nor upon Incomes less
than one thousand dollars. The in
comes subject to the above tax are
those derived from property not taxed.
from salaries and fees. public or pri-
vate, from annunities. from trades OF
professions.
Judge Cooley avs: Income when not
qualified III a tax law may be held to
mean that which comes in or Is receiv-
ed from any service. business or Invest
ment of capital without reference to
outgoing expenditures" Cooley on
Taxation, L. 3S2.
In the cage II United States vs. John
]. Schilingcr, the court says: Income
must be taken 10 mean money and not
the expectation OF receiving II or the
right to receive IL at a future time. IA
Blatchford, y u.
And this Is the distinction between
the taxation Of the income of a judge.
as we atterrpt TO point IL out and the
conclusion reached by the attorney
general that such taxation Is OF the SAL
airy, for IL is SD In the case relied up
on by him Hepburn vs.. Mann. supra
The properly Of a judge. his income.
whether deri=e1 from fees or any other
source, we admit. ii a proper subject OF
taxation. Eiis security wiz! then consist
in being placed on the same footing
with other citizens. and an abuse Of
them by AIRY. will be speedily correct
ed.
OF this lie judge does not complain.
but he does complain that he with eth
er Oudgesl is selected as a special OBJ