Russell v. . Ayer , 120 N.C. 180 ( 1897 )

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.