Summary
In Russell v. Ayer, 120 N.C. 180, the Governor brought a proceeding to construe an act of the Legislature differently from the defendant State Auditor, and to require him to make out the tax blanks in a different manner from the construction placed upon the act by the Auditor.
Summary of this case from Bickett v. Tax CommissionOpinion
(February Term, 1897.)
Mandamus — State Officer — Performance of Duty — Constitutional Law — Statutes — Error in Statute — Taxation.
1. Under sub-sections 1 and 2 of section 3320 of The Code, which empower and require the Governor of the State to "supervise the official conduct of all executive and ministerial officers," and to "see that all offices are filled and duties thereof performed, or in default thereof apply such remedies as the law allows," as well as under the general law, as announced in decisions of this Court, the Governor has the right to bring mandamus proceedings against the State Auditor to compel the performance of the ministerial duties prescribed by statute which do not involve any official discretion.
2. The equation of taxation being fixed by the Constitution, any sections or parts of sections of an act of the General Assembly which violate or disturb such equation are void, and the courts can lend no aid by judicial decision, but must declare the offending provisions void.
3. Sections 2 and 3 of chapter 168, Acts of 1897 (Revenue Act), fixing the poll tax at $1.29 and the property tax at 46 cents on the $100 valuation, being in conflict with section 1. Art. V, of the Constitution, which provides that the poll tax shall be equal to the tax on $300 of property, are both void, and the executive department cannot levy a poll tax at the constitutional ratio to the property tax fixed.
4. Sections 2 and 3 of chapter 168, Acts of 1897 (Revenue Act), being void in so far as they violate the constitutional equation of taxation, the corresponding parts of sections 2 and 3 of chapter 116, Acts of 1895, are unrepealed and in full force and effect.
(181) ACTION by Daniel L. Russell, Governor of North Carolina, against Hal. W. Ayer, State Auditor, for a peremptory mandamus, commenced in the Superior Court of WAKE, and heard on complaint and demurrer before Adams, J., at chambers, in Raleigh, in April, 1896. The complaint was as follows: "The plaintiff, complaining, alleges —
"1. That he is Governor of North Carolina, and as such it is his duty to supervise the official conduct of all executive and ministerial officers and to see that the duties of all officers are performed, and in default thereof to apply such remedy as the law allows.
"2. That the defendant, Hal. W. Ayer, is Auditor of the State of North Carolina.
"3. The General Assembly of North Carolina, at its session of 1897, duly passed an act which was ratified on the 9th day of March, entitled 'An Act to Raise Revenue,' in words and figures (in part) as follows, towit:
"'Section 1. That the taxes hereinafter designated are payable in existing national currency, and shall be assessed and collected under the rules and regulations prescribed by law and applied to the payment of the expenses of the State government, the appropriations to charitable and penal institutions, other specific appropriations made by law, and the interest on the four per centum consolidated debt of the State.
"'Sec. 2. On each taxable poll or male between the ages of twenty-one and fifty years, except the poor and infirm whom the county commissioners may declare and record fit subjects for exemption, there shall be annually levied and collected a tax of one dollar (182) and twenty-nine cents, the proceeds of such tax to be devoted to the purposes of education and the support of the poor, as may be prescribed by law, not inconsistent with the apportionment established by section two of Article five of the Constitution of the State.
"'Sec. 3. There shall be levied and collected annually an ad valorem tax of twenty-two and two-thirds cents for State purposes, three and one-third cents for pensions, twenty cents for public schools, making forty-six cents on every one hundred dollars value of real and personal property in this State, and moneys, credits, surplus, reserve funds, undivided profits, investments in bonds, stocks, joint stock companies, or otherwise, required to be listed in "an act to provide for the assessment of property and collection of taxes," subject to exemption made by law, and no city, town, or other municipal corporation shall have power to impose, levy, or collect any greater sum on real and personal property than one per centum of the value thereof, except by special authority from the General Assembly.'
"4. That of the twenty-two and one-third cents levied for State purposes, five and one-sixth cents were levied to pay the interest on the four per centum consolidated debt of the State, which debt existed prior to the Constitution of North Carolina of 1868.
"5. That said act duly passed by both Houses of the General Assembly provided for the levy of a poll tax of one dollar and thirty-eight cents, but that by a mistake of the enrolling clerk the act as enrolled levied a tax of one dollar and twenty-nine cents.
"6. That under article five of the Constitution of North Carolina the said capitation tax equal to property valued at three hundred dollars, towit: one dollar and thirty-eight cents, should have been levied.
"7. That, as plaintiff is advised and insists, the General (183) Assembly, having levied a tax on property of forty-six cents on the one hundred dollars worth of property, thereby fixed the amount of the capitation tax, and having undertaken to levy a capitation tax, such tax is by the Constitution fixed at one dollar and thirty-eight cents. That therefore, such a tax in law has been levied.
"8. That it is by law the duty of the Auditor to prepare forms to be used for assessing and listing property for taxation by the assessors and list-takers in accordance with said act, and the Constitution — Article 5, section 1 — fixing the rate of taxation at forty-six cents on every one hundred dollars value of real and personal property, and one dollar and thirty-eight cents upon each taxable poll, and it is also his duty to transmit said forms to the clerks of the Boards of Commissioners of each county.
"9. That the plaintiff has requested the said Auditor of the State to prepare such forms, and to observe the constitutional equation by fixing the capitation tax on each taxable poll at one dollar and thirty-eight cents, and to transmit the same as required by law. But that the said Auditor has refused to prepare said forms, fixing the capitation tax at one dollar and thirty-eight cents, upon the ground, as he claims, that it is his duty in preparing said forms to fix the said capitation tax at one dollar and twenty-nine cents.
"Wherefore, the plaintiff makes this application, praying —
"1. That a peremptory writ of mandamus be issued out of this court, directed to the defendant, commanding him to prepare said forms to be used in assessing and listing property for taxation by the assessors and list-takers under the said act, fixing the capitation tax at one dollar and thirty-eight cents, and also commanding him to transmit said forms to the clerks of the Boards of Commissioners of each county, as (184) required by law.
"2. For other and further relief.
"3. For the costs and disbursements of this action."
The defendant demurred to the complaint on the ground that "the facts set forth in the complaint for mandamus do not entitle the plaintiff to the relief asked for therein."
His Honor overruled the demurrer and adjudged, "that a peremptory writ of mandamus do issue out of this court, directed to the defendant, commanding him to prepare forms to be used for assessing and listing property for taxation by the assessors and list-takers according to law, fixing the rate of taxation at forty-six cents on every one hundred dollars value of real and personal property, and one dollar and thirty-eight cents upon each taxable poll, and to transmit said forms to the clerks of the Boards of County Commissioners of each county in the State."
Messrs. J. C. L. Harris, J. W. Hinsdale, Cook Greene for plaintiff.
Messrs Zeb. V. Walser, Attorney-General, and A. C. Avery for defendant.
The General Assembly of North Carolina, at its session of 1897, in an act entitled: "An Act to Raise Revenue," laid the capitation tax at one dollar and twenty-nine cents, and a tax of forty-six cents on every one hundred dollars value of real and personal property. Section 1 of Article V of the Constitution, provides that "The General Assembly shall levy a capitation tax on every male inhabitant in the State over twenty-one and under fifty years of age, which shall be equal on each to the tax on property valued at $300 in cash, * * * and the State and county capitation tax combined shall never exceed two dollars on the head." Upon the face of the Act of Assembly it (185) appears at a glance that the equation fixed by the Constitution between the capitation tax and that on property has not been preserved. The Auditor of the State, who is required to prepare and send out to the several counties the forms to be used by the assessors and list-takers of property for taxation, deemed it his duty to follow the plain words of the act, and to place on the forms the capitation tax as fixed by the act, at one dollar and twenty-nine cents, and was at the commencement of this proceeding about to send the forms out to the various counties. The plaintiff, in whom is vested by the Constitution, the supreme executive power of the State, believing that the property tax having been levied by the General Assembly to the amount of Forty-six cents on the one hundred dollars worth, and that body having undertaken to levy a capitation tax, though an erroneous one, the Constitution itself adjusts and fixes the capitation tax at one dollar and thirty-eight cents, notwithstanding the erroneous levy of $1.29 for that purpose, has brought this action (mandamus) to compel the Auditor to place the amount of the capitation tax on the forms at one dollar and thirty-eight cents — the amount of the tax laid by the act on three hundred dollars worth of property — instead of one dollar and twenty-nine cents as appears in the act. There is no allegation in the complaint of willful or contumacious refusal on the part of the Auditor, the plaintiff simply alleging that the defendant's idea of what his duty under the law is is erroneous. There can be no serious question concerning the power of the Governor to bring an action of the nature of this one against the defendant if the defendant had failed or refused to perform a specific duty expressly required of him by an Act of Assembly. The right to bring such an action by the Governor (186) is conferred upon him by subsections 1 and 2 of sec. 3220 of The Code. By those sections he is empowered and required to "supervise the official conduct of all executive and ministerial officers," and to "see that all offices are filled and duties thereof performed, or in default thereof apply such remedies as the law allows."
Besides this express statutory authority for the commencement of mandamus proceedings against a public officer in cases where he refuses to perform a specific duty required of him by law, this Court in R. R. v. Jenkins, Treasurer, 68 N.C. 502, citing Kendall v. U.S., 12 Pet., 524, said: "It is settled that, when an act of the legislative branch of the government directs an executive officer to do a specific act which does not involve any official discretion but it is merely ministerial, * * * a mandamus will be ordered, and in County Board v. State Board, 106 N.C. 81, it was decided that an action could be maintained to compel public officers to discharge mere ministerial duties not involving an official discretion."
The plaintiff has performed his duty with the best interests of the State in view in commencing this proceeding, and the decision of this Court will no doubt be a great relief to the defendant.
The demurrer of the defendant raises the question whether or not those parts of secs. 2 and 3 of chap. 168 of the Acts of 1897, entitled "An Act to Raise Revenue," which fix the amount of capitation tax and the tax on property, are repugnant to the Constitution because of their violation of the constitutional equation between the tax on property and that on the poll. And if these parts of those sections are unconstitutional, then, of course, the act which the plaintiff seeks to have performed by the Auditor cannot be done, and the demurrer should (187) have been sustained. Sec. 2 of the Act referred to fixes the capitation tax at one dollar and twenty-nine cents, without condition and without reference to any other of its sections or provisions. There is, therefore, no room for enquiring into the intention of the law makers. It cannot be said that when they wrote "one twenty-nine," they meant "one thirty-eight." It must be presumed that they knew what they were doing and that they meant to do what they did. The act was perfectly regular on its face, had passed its several readings and was duly ratified, and no proof as to mistake or error can now be heard in this Court to contradict its provisions. Carr v. Cooke, 116 N.C. 223. So we arrive at the conclusion that upon the face of the act the Auditor's duty would be to send out the forms with the amount of the capitation tax fixed at one dollar and twenty-nine cents, the amount specified in the Act, if that portion of the Act is in accordance with Article v, Sec. 1 of the Constitution.
We will now discuss that part of the question.
The capitation tax under the Constitution can never exceed two dollars, and the tax on each head subject to taxation shall be equal to the tax on property valued at three hundred dollars. The position of the plaintiff in this action is that the language of the Constitution makes the tax on property the basis from which the capitation tax is calculated and determined; that one thing cannot be said to be equal to another thing, unless the other is clearly known and certain; and that, therefore, the tax on property is first to be levied and fixed before the capitation can be adjusted to fit it (the property tax) under the Constitution; that the General Assembly followed this course, placed the property tax at forty-six cents on the one hundred dollars worth, and by mathematical calculation apportioned the tax on property to the several purposes of the State necessities in detail, i. e., twenty-two and (188) two-thirds cents for State purposes, three and one-third cents for pensions, twenty cents for public schools; and that although that body on the face of the Act, failed to preserve the constitutional equation when they levied the poll tax at one dollar and twenty-nine cents, and the tax on $300 worth of property at $1.38, yet they nevertheless in the attempt to levy a poll tax, having fixed the tax on property at $1.38, on the $300 worth of property, the capitation tax is by force of the Constitution itself fixed at $1.38, and that therefore the same is to be read into the Act and deemed in law to have been levied.
The claim of the plaintiff means simply this: That although the General Assembly, in language entirely free from doubt, has violated the provisions of the Constitution by disturbing the equation of taxation, yet the Auditor can be compelled to give force to a law unconstitutional on its face, because the Constitution has fixed the equation. The Constitution does not levy any tax upon anything. That instrument simply provides that public revenue may be raised by taxation, and fixes the equation to be observed by the General Assembly between the poll and property taxes, and leaves the General Assembly, solely, the duty of levying the public taxes and the discretion of fixing the amount necessary, always keeping in mind the limitations prescribed. If the General Assembly should at any session levy a tax on property, but fail to levy a capitation tax, it could not be contended that the provisions of the Constitution in regard to the equation of taxation could supply the omission and read into the defective law a capitation tax equal to the property tax levied on $300 value of property. Such a section in a revenue law would be void because of the failure of the law makers to levy the (189) taxes under the constitutional requirements. Neither can the Constitution be invoked in a case like the one before us to fix the poll tax in a different amount from that prescribed in the act, on the alleged ground that, as the General Assembly had fixed the tax on property, therefore the constitutional provision by its own force applies its corrective influence, overrules the amount fixed by the General Assembly and adjusts the question. The Constitution is a chart which must be consulted and followed, but in the matter of taxation it is absolutely indispensable that the General Assembly, by proper enactment, give life and effect to the provisions of the Constitution by making the levy and providing the machinery for collection. If the legislature fails to discharge its duty there is no help. If in its action it disturbs the equation of taxation, the section or parts of sections containing the violation are void, and the courts can lend no aid by judicial decision, but must declare the offending provision of law void.
In view of the great public interests concerned, we think it proper to say (though not necessary to a decision of this case) that while the parts of secs. 2 and 3 of the Act above referred to, which concern the amounts of the capitation tax, are void, because they disturb the equation between property and poll taxes, yet the remainder of the Act is valid; and that, although the revenue act of 1897 contains a clause which repeals all acts and parts of acts contrary to its provisions, yet, the parts of secs. 2 and 3 of the Act of 1897 being unconstitutional and void, it follows that those parts of secs. 2 and 3 of chap. 116 of the Acts of 1895, which levy the amount of capitation and property tax are unrepealed and are in full force and effect. The revenues which the treasurer will receive from the tax on property levied in 1895 of course will be less than they would have been under the levy of 1897, and the Treasurer will of course disburse the same for the various purposes set out in sec. 3 of the Act of 1897, (190) pro rata, and according to law, the regular expenses for the conducting of the State government first to be considered.
There was error in the ruling of the judge below. The demurrer ought to have been sustained.
Error.