State ex rel. Miller v. Buchanan , 1884 W. Va. LEXIS 66 ( 1884 )

Johnson, President:

The. first question presented is: Can the assessor shield himself under the first defence in his return, viz, that he refused to list the property commanded to be listed -by the alternative writ, because such property is hw section 43 of chapter 12 of the Acts of 1881 exempted ironmfaxatiom and said section is constitutional and valid ? Can each of the eighty-three'assessors m this State in defiance of the instructions of the Auditor refuse to assess property by him decided to be taxable under the law, and each for himself decide what property he will assess, and what he will declare exempt from taxation, and then successfully resist a peremptory writ of mandamus, on the ground that his instructions were illegal, and the property, which he was ordered to put on the personal property-book, was exempt, hy law? If he may do this, it is quite possible that each assessor might take a different view of the law, and thus very much of the taxable property of the State go untaxed, and the revenues of the State be diminished much below the estimates of the Auditor, and the machinery of the State-government be clogged or entirely stoprped, it may be. If this be the correct idea of the powers and duties of assessors, why did the Legislature in section 5 of chapter 12 of the Acts of 1881, provide: “The Auditor shall prepare and forward to the assessors printed forms for the personal property-books and also for the lists of taxable subjects to be furnished by assessors to pergons chargeable with taxes. lie shall also by letter or printed circular give such instructions to the assessors respecting their duties, as may seem to him judicious; and if .any assessor shall fail to obey such instructions, so far as they are not contrary to law, he shall forfeit not less than ten nor more than thirty dollars?” Why did the Legislature provide that the Auditor should send to the assessors printed forms for the lists of taxable subjects and give them instructions as to their duties? Because it was qlear to the legislative' mind, 'that iii no other way eouldfthe equality and uniformity of taxation required by the Constitution be secured. Taxation could not be equal and uniform, if eighty-three assessors could construe the law, and each for himself decide what property was taxable'and what exempt.

Can a ministerial officer refuse to obey the instructions of his superior and then excuse himself for such disobedience on the ground that his instructions were illegal? In Waldron v. Lee, 5 Pick. 323, it was held, that “if the person appointed to warn a school-district returns that he warned the inhabitants but without stating the time or manner of warning, aud the inhabitants meet and vote to raise a sum of money, and this vote is duly certified to the assessors, they are obliged to assess the tax, and neither they nor the.town-treasurer can enquire into the regularity of the proceedings antecedent to the meeting.” That was a mandamus case. The alternative writ was directed to the treasurer commanding him to issue his warrant of distress against the collectors, or show cause to the contrary. The treasurer insisted in his return, that the tax was illegal. Parker, C. L, delivered the opinion of the coui’t. ITe said: “ It is clear by the authorities that it” (mandamus) “is the proper and pei’haps it is the only manner in which the sovereign power can compel the performance of official duty by inferior magistrates and officers of the law. "Without.such power somewdiere, the affairs of the public might be brought to a stand; and as in England, so in this commonwealth, the highest common-law judicial authority is made the depository of this power.

“No more proper case can arise for an application like the present, than where those entrusted with the revenue of the country refuse to perform their duty; for without a vigorous compulsory power upon, them, great public mischief might ensue. The State treasury would be embarrassed, if those who are to collect its revenue may not by summary process be compelled to do their duty. So with counties, towns and divisions of. towns, authorized by law to tax the members ol these several communities. To ensure and enforce the collection of • town taxes when they are assessed and committed to a constable with proper authority, if he failed to do his duty he is compelled by the sheriff, &c., acting under a warrant of the treasurer of the town, authorizing distress of the collector’s goods and chattels and the imprisonment of his person. * * * The treasurer is a mere ministerial officer; he has no right to pause in the execution of his duty on the suggestion of errors or mistakes in the proceedings. ■ If the facts-upon which he is to act are properly certified to him, he has. no discretion, but is obliged to issue his warrant. "Whether the tax be legal or illegal, whether duly assessed or not, are not subjects for him to enquire about. If there bo a tax, an assessment, a warrant to the collector, all certified to him by the assessor duly qualified to act, his duty is clear, and he is peremptorily commanded by the law to discharge it.” The peremptory mandamus issued.

In The People v. Collins, 7 Johns. 549, a mandamus was prayed to require the defendant, a town-clerk, to record a survey of a highway; and in his return he insisted that the survey was illegal. Kent, C. J., said: “It certainly did not lie with the defendant as a mere ministerial officer to .adjudge the act of the commissioners null. It .was his duty to record the paper; valeat quantum, valere potest. It was enough for him, that these persons had been duly elected commissioners within the year, and were in the actual exercise of the office.”

In Smyth v. Titcomb, 31 Me. 273, it was held, that a ministerial officer entrusted with the collection and disbursement of revenue in any of the departments of the government has no’ right to withhold a performance of his ministerial duties, prescribed by law, merely because he apprehends that others may be affected thereby, or that possibly the law may be unconstitutional. The petition was for a mandamus against the treasurer of the town of Brunswick. The treasurer had refused to issue his warrant of distress against the collector. In his return the treasurer insisted that the tax was unconstitutional, and otherwise illegal. Howard, J., for the court said: “Another objection taken is that the special law of 1848, chapter 140, is unconstitutional and all the proceedings under it are void. It does not however lie with the respondent as a ministerial officer to make this objection. He is not authorized or required to adjudicate the law. On a summary hearing on a petition for a mandamus this court will not determine the question of the constitutionality of the law, involving the rights of third persons, but will leave that question to be decided when properly presented by parties to an action. For this hearing we assume that the act is constitutional.” The judge further said, 286: “A-public officer entrusted with the collection and disbursement of revenue in any of the departments of the government, has no right to refuse to perform his ministerial duties prescribed by law, because he may apprehend that others may be injuriously affected by it, or that the law may possibly be unconstitutional. He is not responsible for the law, or for the possible wrongs which may result from its execution. He cannot refuse to act because others question his right. The individuals to be affected may not doubt the constitutionality of the law, or may waive their supposed rights or wrongs, or may choose to contest'' the validity of the enactment personally. Public policy as well as public necessity and justice, require prompt and efficient action from such officers. The State, counties, towns and school-districts must be supplied, in order to accomplish the purposes of their organization, and the proper officers in their respective departments must seasonably furnish the authorized amounts. The consequences would be ruinous, if they could withhold their services and the necessary means either from timidity, or captiousness, until all questions of law, which might ai’ise in the per-formanee of their official duties, should first be judicially settled.”

In the People ex rel. v. Salomon, 54 Ill. 39, it appeared that a clerk of a county court had refused to extend upon the collector’s hooks the taxes according to the increased valuation, determined by the State board of equalization, and proceedings were instituted to compel the clerk by mandamus to make such extension, which resulted in the award of a peremptory writ. It was held in a proceeding by attachment against the clerk for contempt in failing to obey the writ, that it was no justification of such disobedience, that a compliance with the command of the writ had become impossible by reason "of the collector’s books, upon which the extension was directed to be made, having been delivered to the township collector, and the clerk could not re-posses himself of them, that fact existing at the time the alternative writ issued, and being in no way brought to the attention of the court; that a ministerial officer cannot be allowed to decide upon the validity of a law, and thus exempt himself from responsibility for disobedience to the command of a peremptory writ of mandamus, his disobedience to the law being the cause of his inability to obey the command of the court; that it is the duty of a ministerial officer to obey an act of the Legislature directing his action, not to question or decide upon its validity. Breese, C. J., delivering the opinion of the court, and addressing the defendant said:

“To allow a ministerial officer to decide upon the validity of a law would be subversive of the great objects and purposes of government, for if one such officer may assume infallibility, all like officers may do the same and an end be put to civil government, one of whose cardinal principles is subjection to the law. Being a ministerial officer the path of duty was plain before you. You strayed from it, and became a volunteer in the effort to arrest the law, and it was successful. Had the property owners who were subjected to this additional tax, considered the law unconstitutional, they could in the proper courts have tested the question, and it was their undoubted right to do so. Your only duty was obedience.”

The court imposed a fine of one thousand dollars for the failure to obey the peremptory writ, it being then impossible for respondent to do so because of his previous disobedience of the law. But it may be said, that here was an act of the Legislature, which he had no right to question, and which he was bound to obey, while in the case before us is an act of the Legislature, which it was the duty of the respondent here to obey. We are free to admit, that if there had been no decision of what the law is by an authority having the right to decide the question, it would clearly have been the duty of the assessors to obejr the requirements of section 43. But this Court had decided in Railway Company v. Miller, Auditor, that no property was exempt from taxation under the Constitution of 1863, except such as might by the Legislature be exempted under the provisions of the exception in section 1 of article 8. The Governor decided, the provisions of section 1 of article 10, of the Constitution of 1872, were the same as to exemptions of personal property of the kind specified in the alternative writ, as section 1 of article 8, of the Constitution of 1863, and also decided that the principle announced by this Court was applicable to section 1 of article 10. of the present Constitution, and that section 43 exempted the said class of property and therefore was not law, and as the law was complete without that section, said section should be disregarded; and he set the proper machinery in motion to have the law executed as he understood it to be, and as he understood this Court had decided it to be.

Bid the Governor have jurisdiction to decide this question and resort to~fh(rHCti-©fl. to which he did resort, to have the exempted property taxed? We maintain, that if he had the jurisdiction to. determine this question, then it was the duty of the assessors to take his decision in the matter as the law, and to obey without question the instructions of the Auditor based on that decision. No one will qufistion the principle, that all inferior~dfficers of courts in all cases, where the court has jurisdiction, are bound to obey the^order or mandate of the court, and if the inferior officer so ordered refuse to obey, he will be punished. If the Legislature withiñWs^nriscliction orders a thing to be done by the sergeant-at-arms of either house, the thing must be performed without question, or the inferior officer will be punished for disobedience. Our Constitution, section 1 article 5, in dividing the powers of government provides: “The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the othei’s; nor shall any person exercise the power of more than one of them at the same time, except that justices of the peace shall be eligible to the Legislature.” The departments of the government must be kept separate and distinct, and each in its legitimate sphere must be protected. Otherwise the government fails. Haymond, Judge, in delivering the opinion of the Court in Slack v. Jacob, 8 W. Va. 661, said: “It is essentially necessary and proper that each department of the govern!ent shall be careful in its action to keep within its legal and constitutional sphei’e, and not attempt to exercise powers and duties, which under the constitutional appointment of powers belongs to the other, or improperly interfere with the exercise of the rights as well as duties of. the others. Unless this is done the departments must come in hostile contact and collision, and the public interest made to suffer greatly, and the public peace be imperiled, if not broken by the shedding of blood.” The legislative department has certain powers, the exercise of -which can in no respect be reviewed by either of the other departments. And the same is true of the executive and judicial departments. In other matters the Supremo Court of Appeals is made the final arbiter. In matters of this kind either of the other two departments, having jurisdiction over the subject, may decide what the law is, and that must be regarded as the' law, until it is finally decided to be unconstitutional by the Court of last resort, to whom the Constitution equally, binding upon .each of the three departments has committed the final decision. Tf that Court- should be corrupt or arbitrary in the exercise of its powers thus committed to it, the same Constitution has provided an effectual remedy by resort to the high court of impeachment. ,

When the Legislature passes an act, it must of necessity decide upon its constitutionality. When the chief executive is called upon to execute a law, he must necessarily decide whether or not it is constitutional, that is, whether or not it is law; for as Judge Cooley says, in his Constitutional Limitations, page 3:

“The term unconstitutional law as employed in American jurisprudence is a misnomer and implies a contradiction; that enactment, which is opposed to the Constitution, being in fact no law at all.”

“Every department of the government and every official of every department may at any time, when a duty is to be performed, be required to pass upon a question of constitutional construction. Sometimes the case will be such that the decision when made must from the nature of things be conclusive and subject to no appeal or review, however erroneous it may be in the opinion of other departments or other officers; but in other cases the same question may be required to bo passed upon again before the duty is completely performed.” Cooley Con. Lim. 40.

But if the question is one of that class of cases, that it may properly7 be passed upon again, before the act required to be done is completely performed, then in a proper case made it may be passed upon by the inferior court, and then by7 the Constitution it is required that it must be finally decided by the supreme court of appeals, if resort is had to that tribunal. In some cases it may be decided by the court of last resort, without the question being presented to the inferior court. But “when a decree is made in a case by7 the highest court empowered to pass upon it, it is conclusive upon the parties to the controversy and their privies, who are not allowed afterwards, to revive it in a new proceeding for the purpose of raising the same or any other questions.” Cooley Con. Lim. 47.

Uow what are the duties of the executive under the Constitution? The Constitution in section 5 of article 7 declares: “ The chief executive power shall be vested in the Governor, who shall take care that the law be faithfully executed.” This Court in Shields v. Bennett, 8 W. Va. 80, said: “ The provision, whiph requires that the Governor shall take care that the laws be faithfully executed, docs not generally, if ever, make it the duty of the Governor himself to execute the laws. But as the language imports, it makes it his duty carefully to observe the manner in which the different officers of the government exercise their proper functions, and execute the laws committed to their charge, or their failure to perform such duties; and when they fail to act, or act improperly, if he has the power to remove them from office, to do so; or if he has not, to bring the subject to the cognizance of that department of the government which has the power to remove or punish them.” Under this positive requirement of the Constitution the Governor mustj in accordance with the oath of office which he has taken, be vigilant and with all the power at his command require the execution of the laws, which the Legislature has passed, because in its wisdom it passes such laws as the good of the State requires and none other; and if the chief executive does not see to their faithful execution, he does not discharge his dut}7, and the object of the legislative department, to the extent the laws have not been executed, has failed.

By laws of course is meant such acts of the Legislature as are authorized by the Constitution, for if they are unconstitutional they are not laws. In speaking of this requirement of the Constitution, this Court in the case of Slack v. Jacob, 8 W. Va. 657, said of the Governor: “In order to determine his constitutional duty in this respect, he must of necessity exercise his discretion and best judgment. How else could he perform this constitutional duty except by passing upon the question, as to whether the act of the Legislature was constitutional and valid or unconstitutional and void? When he determined in his mind and conscience that the law was constitutional, it then devolved upon him to execute it.”

In the case before us the Governor did not undertake him.self upon his own responsibility, as he might have done, to decide that section 43 was unconstitutional, but this Court having by its decision in Railway Company v. Miller, Auditor, 19 W. Va., construed section 1 of article 8, of the Constitution of 1863, the Governor decided, that the construction put upon that section, which was almost identical with section 1 of article 10, of the present Constitution, was in effect a construction of said section 1 of article 10, of the present Constitution, and that under that construction, section 43, so far as it exempted the articles mentioned .in the alternative writ, was unconstitutional. This he had jurisdiction to decide, and being the chief of the executive department of the government, the law as thus decided must he taken as such by the subordinate officers of his department and by all other officers, whose duty it is to execute the law. Its constitutionality can only be tested, when in its execution it operates upon the citizen, whose right it is to appeal to the court and by the proper proceeding have it decided, whether or not the property claimed by him to be exempt under section 43 is liable to be assessed. If that court should decide against him, he could then appeal to the Supreme Court of Appeals, which Court would either sustain section 43, or pronounce it unconstitutional, so far as it attempted to exempt said property.

Of course the Governor had no right to legislate. He clearly had no jurisdiction or power to pass a tax-law. If he did attempt to enact such a law, no subordinate officer would be required to execute it nor would he at all bo bound by it. It'is clear that no taxes can be assessed or levied except in pursuance of statutory law. But the Legislature-had declared in the most explicit terms, sec. 48, chap. 12, Acts 1881, that “All personal property belonging to persons residing in this State, whether such property be in or out of the State, and all personal property in the State though owned by persons residing out of the State, shall be entered in the -personal property-book.> and be subject to equal and uniform taxation unless specially exempted by law,” &c. The Governor decided; as he had jurisdiction to decide, that the portion of section 43, which attempted to exempt certain property, was not law. And the assessment law being complete in itself with or without such portion of section 43, the jurisdiction of the Governor to so construe the law is unquestionable. While it is the right of the courts to declare that such construction of the Governor was wrong, it certainly is not the right of a subordinate executive or ministerial officer to arrest the execution of the law as construed by the Governor, who had jurisdiction to decide upon its validity; and he cannot justify himself in his insubordination, on the ground that the chief executive had decided wrong. Ilis duty was obedience to the law as thus construed, and not resistance to lawful, authority.

Is it possible that each of the eighty-three assessors in this State can be permitted against 'instructions to decide for himself what property shall be taxed and what exempted from taxation ? ' If this be so, what would or could be the remedy, by 'which the proper subjects of taxation could be listed? It would, if they are the sole judges, depend upon the judgment or caprice, it might be, of each assessor what he would assess and what he would refuse to assess; and if one were indicted, that would have no efiect upon the others; or it might be that no one would take the trouble to see whether he was doing his duty, and the property would go untaxed, the revenues be diminished, and the guilty assessor be unpunished. There would and could be no uniformity or equality in taxation under such a system. Or if a mandamus should issue against one, the Court deciding in that case, that the law was unconstitutional, each of the others might say: “That does not bind me, as I was not a party to that suit.” But if it be held, that each is bound to assess the property, which it is determined in the Auditor’s office under the -eye of the chief executive of the State is subject to taxation, and can raise no question as to the exemption of any of such property, .then we will have the revenues of the State collected and equality and uniformity in taxation secured. But if each of the assessors is permitted to decide for himself, what property shall be taxed and what exempted, and defy the instructions of the Auditor made under the decision of the chief executive of the State, then you fail to have taxes equal and uniform, but on the contrary have certain property taxed in one county and exempt in another, as is the case in this State to-day, as appears hy thei’eturn of the respondent; and such a state of affairs is produced by failing and refusing to obey the instructions of the Auditor. Such a course if upheld and justified by the people of the State, tends directly, not only to insubordination, and the destruction of good government, but to anarchy and confusion.

Among the most important laws ■which it is the duty of the Governor to execute, are the revenue law's. If the revenues are not collected, none of the departments of the government can live. The revenue is the life of the government; and it is necessary that (here should be no delay in its collection. The machinery for its collection must be kept in motion and must not be stopped by assessors or other inferior officers for the purpose of testing the legality or illegality of a tax-law. It is no concern of the assessor as such whether the tax is illegal or not. It is his duty to obey the instructions of his superiors as to what property is subject to taxation; and if he refuses to assess such property, and a mandamus is prayed to compel him to assess such subjects, as ho has been by the Auditor under the decision pi the Governor instructed to enter for taxation, he cannot shield himself by denying the legality of the instruction. We will not therefore in this case decide the constitutional question raised in the return. We have seen that the respondent as assessor of Brooke has no interest in it, and the parties directly interested, to-wit, the taxpayers of Brooke county are not before the Court. We deem it improper therefore in this case to decide, whether the Governor was right or wrong in his decision; or whether the portion of section 43, referred to in the first part of the return, is unconstitutional or valid. It will be time enough to decide upon the constitutionality of that section, when the proper parties are before the Court for that purpose.

As mandamus is a discretionary writ, if it manifestly appeared to us, that the articles enumerated in the alternative writ were under the law exempt from taxation, we should decline to issue the writ; not because the respondent has any right to make such a defence or to rely upon such reason as an excuse for his insubordination, but because we would not be willing to involve the citizens in an expensive litigation, growing out of the imposition of a clearly illegal tax. But we cannot say that it manifestly appears to us, that said articles are exempt from taxation, and that question will not be here decided until a proper case involving the question is brought before this Court. Waldron v. Lee, 5 Pick. 329; Smyth v. Titcomb, 31 Me. 285; State ex rel. v. Gaines, 8 Lea (Tenn.) 594.

The second point of the return assumes, that the assessor’s duty is completed, when from the lists and information furnished him by the persons in his district, who are required by law to return such property, he shall ascertain all personal property in his district subject to taxation and the value thereof, and ho was only authorized to list the property and assess its value, or to supply any omissions or correct any error in case such person fail to furnish a proper list, or in case the list furnished be in the judgment of the assessor incomplete or erroneous in any respect. As we have seen, the assessor was bound to ascertain what property the taxpayers owned on January 1, 1884, that was embraced in any of the classes mentioned in the alternative writ; and he had no discretion to omit from his entries any of such articles., The reason given on this point cannot avail him.

The third point in the return attempts to raise the objection, that it is too late for the peremptory writ to issue, because, when the alternative writ was served on him, he had given a statement of the aggregate value of all personal property in the county of Brooke, as appears from his personal property-book, to the county court, and said court at its levy-term in May, 1884, had upon said statement laid the county-levy. This point shows no reason against the issuing of a mandamus, because he had until the first day of July to deliver his books to the clerk of the county court, and had not returned them. Even if he had, it is by no means certain that that fact would excuse him, because, as we have seen, it was his own fault that his duty was not performed. People v. Salomon, 54 Ill. 39.

The fourth point in the return gives as a reason why the mandamus should not issue, that in all the acts required of him and performed in assessing the personal property in the said county of Brooke and the values thereof and entries made thereof he acted judicially, and cannot be controlled by mandamus. Mandamus is the proper remedy to compel an assessor to assess property which is liable to taxation. People v. Salomon, 54 Ill. 39; State v. Whitworth, 8 Lea 594; Hyatt v. Allen, 54 Cal. 353; Baldwin v. Maxwell, 40 Md. 273; State ex rel. Cincinnati, 19 Ohio 178. While it is true the exercise of judicial discretion will not be controlled by mandamus, yet it is equally true that mandamus is proper to compel the exercise of discretion. The assessor has no right to decide against instructions what kind of property is liable to taxation; after ascertaining the taxable property under such instructions and the value and ownership thereof his discretion ceases, and it then becomes his clear duty to enter the same on his personal property-book.

The fifth point in the return is that the statute, section 79, chapter 12, Acts 1881, requires the assessor to deliver a copy of his personal property-book to the clerk of the county court on or before the first day of July, 1884, and that it will be impossible for respondent to comply with the requirements of the alternative writ within that time. The writ was issued on June 6, iust., and was served on the same day. There remained twenty-four days before July 1, in which to attempt at least to obey the same, and we cannot say that that was not time enough for him to have obeyed the writ. Whose fault is it, that the time was so short ? Besides, the requirement of the statute, that the book shall be delivered on or before the 1st day of July, is directory. It would be strange indeed, if by the fault of the assessor he did not have his book ready by July 1, it could not afterwards be received, and no taxes in the county could be collected for the year. The statute is clearly directory. Pond v. Nigus, 3 Mass. 230; Williams v. School District, 21 Pick. 75; Hart v. Plum, 14 Cal. 155; Smith v. Crittenden, 16 Mich. 152; Railway Company v. County, 12 Neb. 396; State v. Mining Company, 15 Nev. 385; Hill v. Wolfe, 28 Ia. 577. If the writ issues in this case, the respondent will be compelled to obey it, and shall not return his books until bo has done so.

The sixth and seventh points wo have disposed of in the consideration of the first. The sixth point furnishes a strong reason why the writ should issue.

The eighth point is that the relator by bis laches has deprived himself of his right to have a mandamus. The relator is Auditor of this State and personally has no interest in this proceeding. He is new evidently striving to do his duty with whatever negligence he may be charged in the. past. The right of the State to have her revenue assessed and collected, cannot be lost by the laches of her agents. Haehlen v. The Comm. 13 Penn. St. 617.

The ninth point of the return has also been disposed of in the consideration of the first.

The tenth and last point of the return was not mentioned in the argument. There is nothing in it, as the relief there referred to is that of the taxpayer. Nothing in the return contained is in law sufficient to prevent the issuing of the writ prayed for, and the peremptory writ of mandamus is therefore ordered to issue.

Petition Allowed. Writ Issued.