The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-05-02

Judge Simonton Won't Grant
Injunction Against Page.
NOT FEDERAL COURT CASE
The Judge Holds income Tax on United States
Officials is Unconstitutional, but This Rc-
ton Cannot be Brought in United
States Court.

otdleS I0uIl.
The opinion of Judge Simonton in the
case of Judge Thomas r. PurnelIs in
come tax was recorded yesterday in the
office of the clerk of the Federal court
here.
Judge Purnell asked for an injunction
restraining Sheriff Page from collecting
the State income tax on his salary as a
United States Judge. This Judge Simon
ton does not grant.
The full text of the opinion is as fol-
lows
United States of America-Eastern Dis
trict of North Carolna--In the Circuit
Court, in Equity-Thomas X. Purnell
vs.. Malcolm w. Page, Sheriff
This is a bill filed by the Honorable
Thomas r. Purnell. district judge of the
United States for the eastern district of
North Carolina in behalf of himself and
all other Federal office holders in that
State, against the sheriff of Wake coun
ty. of that State, praying an injunction.
The North Carolina Corporation or Tax
Commission under an act of the Legisla-
comes, had assessed a tax on the salary
Of Judge Purnell as district judge in the
sum of one per cent on said salary. the
whole tax assessed being $50. Upon his
failure to pay this tax execution was is
sued ard placed in the hands of said
sheriff of said county, the sheriff proceed
ing under said execution has levied upon
the property of Judge Purnell, amounting
in value to several hundred dollars, to
enforce the payment of the tax. Besides
which the lien of the execution clouds
the title of realty worth over $1,000
The bill is fixed to restrain the sheriff
upon the ground that said tax is wholly
unconstitutional and void. The illegality
of the tax is not the sole ground upon
which the injunction is sought. Various
equitable considerations are also stated,
which must be passed upon and thus the
jurisdiction of the court is sustained.
Aulpwaukee VS.. Koeffler, 116 u. S. 2l9.
Bows VS.. Chicago II Wall los. Gulf vs..
r. u. Co. VS.. Hewes 1873 u. S. 6S
Judge Purneu is an officer of the
United States, his court, his office and
himself are among the means created by
acts of Congress within the provisions
OF the constitution to carTy ION the
powers vested in the general government.
The States have no power by taxation
or otherwise to retard, impede, burden
or in any manner control the operation
of such laws as officers created under
them. (Von Bercklin VS. Tennessee. III
u S. 1855. Mccullough vs. Maryland, i
Wheat 316. Osborn VS.. The Bank.
Wheat 1885, Providence Bank VS.. Bill
lings 4 Pet. 514. Weston VS.. City Coun-
ell l and Pet, 449. Banks VS.. Mayor,
Wall, 16.) The same litigation exists as
to the taking power of the United States
las the States can not tax the powers
operations or the property of the United
State, or the means which they imploy
to carry their powers into execution. so
it has been held that the United States
have no power under the constitution to
tax the instrumentalities nor the prop
ertv of a State" pollock VS.. Farmers
Loan and Trust Co., 157, U. S. 5S4) The
precise point involved in this case was
decided by the Supreme court of the
United States in Dobbins VS.. Commits
sioners. 16 Pet. 49, In that case the
commissioners of Erie county. Pa, under
took to tax the salary of a captain of
United States cutter under an act pre-
scribing a tax to be paid by all taxable
persons and on all offices and positions
elaborate opinion the Supreme court re-
versed the judgment of the Supreme court
of Pennsylvania, which had sustained the
tax Among other things the court says
that the act of Congress fixed the
pensation of this officer who was one of
the means established by Congress to
carry out it's constitutional powers. The
State by taxing this compensation d.
minished the recompense which Congress
had determined the officer must have.
In this the act of the State conflicted
with the law of Congress made in pur
suance with the constitution, the supreme
law of the land Judge Purnel has his
salary secured to him under the Consti
tuition from any diminution so long as
he remains in the office. (Article 3, sec
tiCn IL fostosi no state by any act
can diminish his compensation. tCom-
monwealth VS.. Main. Watts U. ). 402.)
And so applying the same principle, the
Supreme court, in Collector VS.. Day, IL
Wall tlS held that it is not competent
for Congress under the Constitution OF
the United States to impose tax upon
the salary of a judicial officer Of State
1t is earnestly contended that the in
come only of Judge Purnell has been as
sessed. But in estibating his income MS
salary IS included. 30 Il 5 4 vi w e''~N
on his salary. If on its receipt he had in
vested in any real or personal property
such property could be taxed. But as
sessing his salsry as it comes into his
hands as salary is direct tax on the sal
airy and reduction thereof pro tanto.
Whilst, however, there can be no doubt
that this attempt to tax the salary of the
complainant is involved, and contrary to
the constitution and law of the United
States, there is an objection to this bin
of a character so formidable that it is
doubtful if it can be entertained in this
court. This objection is to the jurisdic-
tion of the court, and it is an objection of
which the court must take notice before
it can adjudicate the casue. Morris VS..
Gilmer 129 U S.. 315; Shreveport vs..
Cole, 129 L. S. &C. This objection is tf/t
the amount in controversy is not within
the Jurisdiction of the court
The act of 1887, corrected in 1888. de-
clares; THAT the circuit courts of the
United States shall have original cogn,-
ton, concurrent with the courts of the
several States, of all suits of civil ma
Tura ~ eaum0n law mr. in anuit,y xvbarn