The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-10-16

executive departments would be dependent
upon the will of shifting majority in the
legislative branch of the government. 1t
was to prevent this that, profiting by the
lessons of history, the Federal and State
Constitutions had named the chief officers
of the judicial and executive departments
and placed their support beyond the pow
er of the Legislature to reduce in any
mode.
I'm King VS. Hunter, IS N. c., at PIP.
612, 613 Read j., says: 1T has been con
sidered how far an office or officer may be
taxed. And it is considered as settled
that the State has no power to tax an of
ficer 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 McCuloch VS. Mary
land Wheat. 207. And if a State were
allowed to tax a United States officer one
dollar, it might tax him to the full amount
of his salary, and thus arrest all the
measures of the government" And so the
United States cannot tax a State officer
for the same reason. This settles the
case before us. Upon the same principle,
the United States government cannot tax
the incomes of State officers. U. S. VS.
Richie, q Fed cases No. 16, 16S; Day
VS.. Buffinton Fed. cases, No. 1876 (Clif-I
ford j., affirmed, IS U. S. 113; Freedman
VS.. Sigel, 8 Fed. cases No. $3.50
1.-THE officials of the State and of the
United States whose salaries are protected
from diminution by the legislative power
of their respective governments are very
few in number, and they are pointed out
in the Constitution of each. There can be
no doubt who they are. But as the sal
aries of all the officers of the Federal
Government are exempt from State taxa
ton, and those of all State officers are
exempt from Federal taxation, a question
may often arise as to who is an Officer
for instance, it is held that clerks in the
postoffice, though their appointments have
been approved by the postmaster General,
are not such officers, and they are taxi
able on their incomes, as such. MelchorI
VS. Boston, so Mass 60 Metc.) rs. But wei
are not called upon to discuss that point
in this case.
Nor do we leel inclined to enter upon
the somewhat metaphysical discussion al
bar of the difference, if any, between the
income and salary of an officer. OF course
the income of an individual, who is an OF
ficer from other sources than his salary
is taxable, if not otherwise exempted asI
being derived from property already taxed.
1t is also true that if on the day for list
ing taxes CASUALLY in this State, l June),
the officer has in hand cash derived from
his salary unspent, or property which has
been bought with the savings from his sal
airy, such cash in hand or other proper
ty is taxable ad va1orem at the same rate
of all other property of like value and
kind. But the tax levied on income is not
a property tax, but is a percentage laid OF
the amount which a man receives, ire
spective of whether he spends it, wastes
it. or invests it, and from such income tax
the officers above named. and in the cases
there named, are exempt for the reasons
given in the authorities cited, while others
are taxed on such income, subject only toI
the exemption, named in our statute, of
$1,000 and the further exemption OF in
come derived from property already taxed
"As to the other point whether the plain
tiff can maintain an injunction against the
sale of his property under an illegal tax.
or must pay the tax under protest ana
sue to recover it back, it is equally well
settled that he can pursue either remedy.
Range Co. VS.. Carver, rs N. G. 331; Arm
strong VS.. Stedman, $50 N. c. 211; Brink
ley vs. Smith, 100 n. c. pa hold that un.
der the language of the statute injunctive
relief may be invoked by a tax payer
when the tax is invalid or Illegal.
1.-THE Legislature is presumed TO know
the law, and when it levied a tax upon in
comes it did not intend to authorize tax
upon incomes exempt by the Constitution
OF the State or Federal Government from
such taxation. The act of the officer in
attempting to collect such tax is not au-
tholized by law, and he was properly re
mod from, Saline