Governor v. Ayer

• Citation: 27 S.E. 133,120 N.C. 180
• Court: United States State Supreme Court of North Carolina
• Decision Date: 23 April 1897
• Parties: RUSSELL. Governor v. AYER, State Auditor.

27 S.E. 133

120 N.C. 180

RUSSELL. Governor

v.AYER, State Auditor.

Supreme Court of North Carolina.

April 23, 1897.

Mandamus—Executive Officers—Constitutional Law—Statutes—Mistake.

1. The governor can maintain mandamus against the state auditor to compel the performance of ministerial duties prescribed by statute, both under the general law and by virtue of Code, § 3320, subsecs. 1, 2, requiring the governor to supervise all executive officers, and see that their duties are performed, "or in default thereof apply such remedies as the law allows."

2. Act 1897 (Revenue Act) §§ 2, 3, fixing the capitation tax at $1.29 per poll, and the property tax at 46 cents per $100, being in conflict with Const, art. 5, § 1, providing that the general assembly shall levy a capitation tax equal per poll to the tax on $300 of property, both sections of the statute are void, and the executive department cannot levy a capitation tax at the constitutional ratio to the property tax fixed, the constitution not being self-executing.

3. The amount of the capitation tax being clearly fixed by the act, evidence that its variance from the constitutional requirement was due to error, or presumption of error from the fact of variance, is inadmissible to uphold the act.

Clark and Douglas, JJ., dissenting.

Appeal from superior court, Wake county; Adams, Judge.

Action by D. J. Russell, governor, against H. W. Ayer, state auditor, for a peremptory mandamus. There was judgment that the writ issue, on the overruling of a demurrer to the complaint, and defendant appeals. Reversed.

The Attorney General and A. C. Avery, for appellant.

J. C. L. Harris, J. W. Hinsdale, and Cook & Green, for appellee.

MONTGOMERY, J. 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 $1.29, and a tax of 46 cents on every $100 value of real and personal property. Section 1 of article 5 of the constitution provides that "the general assembly shall levy a capitation tax on every male inhabitant in the state over 21 and under 50 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 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 $1.29, 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 (the property tax having been levied by the general assembly to the amount of 46 cents on the $100 worth, and that body having undertaken to levy a capitation tax. though an erroneous one) that the constitution itself adjusts and fixes the capitation tax at $1.38, 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 $1.38 (the amount of the tax laid by the act on $300 worth of property), instead of at $1.29, 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 is conferred upon him by subsections 1 and 2 of section 3320 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 Railroad v. Jenkins, 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 is merely ministerial, * * * a mandamus will be ordered." And in County Board of Education v State Board of Education, 106 N. C. 83, 10 S. E. 1002, 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 per formed 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 sections 2 and 3 of chapter——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 havebeen sustained. Section 2 of the act referred to fixes the capitation tax at $1.29, without conditions, and without reference to any other of its sections or provisions. There is therefore no room for inquiring into the intention of the lawmakers. 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. Coke, 116 N. C. 223, 22 S. E. 16. 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 $1.29, the amount specified in the act, if that portion of the act is in accordance with article 5, § 1, of the constitution. We will now discuss that part of the question.

The capitation tax, under the constitution, can never exceed $2, and the tax on each head subject to taxation shall be equal to the tax on property valued at $300. 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 that other is clearly known and certain; and that, therefore, the tax on property is first to be levied and fixed, before the capitation tax can be adjusted to fit it (the property tax), under the constitution; that the general assembly followed this course, placed the property tax at 46 cents on the $100 worth, and by mathematical calculation apportioned the tax on property to the several purposes of state necessities in detail, i. e. 22 2/3 cents for state purposes, 3 1/3 cents for pensions, 20 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 $1.29, 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 $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 to 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 fall 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 lawmakers to levy the 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 equation. The constitution is a chart...