In Re Taxation Of Salaries Of Judges.

• Decision Date: 18 December 1902
• Citation: 131 N.C. 692,42 S.E. 970
• Parties: In re TAXATION OF SALARIES OF JUDGES.
• Court: North Carolina Supreme Court

42 S.E. 970

131 N.C. 692

In re TAXATION OF SALARIES OF JUDGES.

Supreme Court of North Carolina.

Dec. 18, 1902.

TAXATION—SALARIES OF JUDGES.

1. Under Const, art. 4, § 23, which provides that "the salaries of the judges shall not be diminished during their continuance in office, " the salaries of the chief justice and associate justices of the supreme court are exempt from taxation, either direct or otherwise.

To Thos. S. Kenan, Clerk of the Supreme Court:

Dear Sir: I herewith hand you the correspondence between Attorney General Gilmer and myself with regard to the 'right of the legislature to tax the salaries of the judges. And in doing so I wish to say that it is a full, able, and indeed an exhaustive, discussion of the subject involved, and, in my opinion, a correct decision of the question. It has been read to the court, sitting in conference, and approved without a dissenting voice. It was then ordered by the court that the attorney general's opinion, together with my letter to him and this letter to you, be filed and preserved among the records of your office, and be published in the 131st volume of the Supreme Court Reports. It was then resolved that the court would consider this opinion of the attorney general as settling the matter therein discussed, to the same extent as if it were the opinion of this court.

Very respectfully,

D. M. FURCHES,

Chief Justice.

December 18, 1902.

North Carolina—Supreme Court.

Raleigh, Nov. 19, 1902.

Hon. Robert D. Gilmer, attorney general of North Carolina:

Dear Sir: The members of this court have heretofore been of opinion that their salaries were not subject to taxation, and for that reason (except one judge for the last two years) have not listed them for that purpose. But the corporation commission has decidedthat they are, and has directed the county commissioners to proceed to collect the same. And as all the members of this court, as are also all the judges of the superior courts, are interested in the question, which would make it embarrassing, if not incompetent, for them to sit upon its hearing, therefore, as you are the legally constituted adviser of the government, the court has decided to ask your opinion upon this important question. And for that purpose the court has requested me to write you this letter, and, whatever your opinion may be, it will be filed for the guidance of this court in the matter.

Hoping you will favor the court with such opinion at as early a day as it may suit your convenience, the court respectfully awaits the same.

Very respectfully, etc.,

D. M. FURCHES,

Chief Justice Supreme Court N. C.

Dec. 16, 1902.

To the Honorable David M. Furches, Chief Justice of the Supreme Court of North Carolina, Raleigh, N. C:

Dear Sir: I beg to acknowledge the receipt of your favor of recent date, in which my opinion is asked upon a question involving the liability of the official salaries of the chief justice and the associate justices of the supreme court of this state to taxation. In discharge of the duty imposed upon me by section 3303, subsec. 4, of the Code, I have the honor to submit the following:

The doctrine that the power to tax is an essential element of government, and that the legislature, in its exercise, is limited only by constitutional provisions, is elementary and fundamental. The power to tax the salary of a state officer is admitted, unless there is some provision in the organic law forbidding it. Such a prohibition upon legislative authority, if any exists, must appear in the constitution of the state. Section 23, art. 4, of that instrument, is in the following words: "The general assembly snail prescribe and regulate the fees, salaries and emoluments of all officers provided for in this article, but the salaries of the judges shall not be diminished during their continuance in office." Section 21 of the constitution of 1776 provided "that the governor, justices of the supreme courts of law and equity * * * shall have adequate salaries during their continuance in office." Rev. Code, p. 16. In the amended constitution of 1835 the constitutional provision with reference to the salaries of judicial officers was changed, and the following article enacted: "The salaries of the judges of the supreme court, or of the superior courts, shall not be diminished during their continuance in office." 1 Rev. St. p. 23, § 2. And the same inhibition against diminution appears in the article quoted above from the constitution adopted in 1868. Under the constitution of 1776, it will be observed that the judges were to receive "adequate salaries." "What was an adequate salary, " remarked Atty. Gen. Bachelor, in 1856, in passing upon a question similar to the one submitted, "was, ex necessitate to be determined by the legislature, which had the power of fixing it As' this was a discretionary power, that body could declare an 'adequate salary' to be any sum it thought proper. This power was liable to abuse, and, though it would have been a violation of the spirit of the constitution to have fixed these salaries at a sum clearly inadequate, yet the legislature, being unchecked by any other department of the government in the exercise of this discretion, could violate at will the spirit of this part of the constitution. By it the power of reducing the salaries of the judges during their continuance in office is taken away. They may be increased, but cannot be diminished. But to secure them effectually against diminution, this provision should extend to indirect as well as to direct legislation. The power to lessen these salaries by direct legislation is now nowhere claimed, yet the passage of this act is an assertion by the legislature of the power to diminish them indirectly; and, if the legislature has such power, it can be used to any extent to which, in its wisdom, it may see proper to carry it." While Atty. Gen. Bachelor, in his opinion, made no reference to the case of McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579, his argument is sustained by the reasoning of Chief Justice Marshall, who delivered the opinion of the court in that case, "that the power to tax involves the power to destroy." This doctrine is exemplified in many cases decided by the supreme courts of other jurisdictions, declaring that the internal revenue acts of the federal government requiring stamps on processes of state courts are unconstitutional interferences with their proceedings. Smith v. Short, 40 Ala. 385; Craig v. Dimock, 47 111. 308; Warren v. Paul, 22 Ind. 276; Fifield v. Close, 15 Mich. 505; Walton v. Bryenth, 24 How. Prac. 357; Jones v. Keep's Estate, 19 Wis. 369; Bumpass v. Taggart, 26 Ark. 398, 7 Am. Rep. 623; For-cheimer v. Holly, 14 Fla. 239; Latham v. Smith, 45 111. 29; Wallace v. Cravens, 34 Ind. 534; Pargoud v. Richardson, 30 La. Ann. 3286; Sporrer v. Eifler, 48 Tenn. 633; Carpenter v. Snelling, 97 Mass. 452; Davis v. Richardson, 45 Miss. 499, 7 Am. Rep. 732. The principle announced in McCulloch v. Maryland, supra, has been affirmed by the supreme court of this state. In King v. Hunter, 65 N. C. 612-613, 6 Am. Rep. 754, Reade, J., says: "It has been considered how far an office or officer may be taxed. And it is considered as settled that the state has no power to tax an officer of the United States, or vice versa, because 'the power to tax includes the power to destroy, ' as was said by Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579. And if a state were allowed to tax a United States officer one dollar, it might tax him to the full amount of his salary, and thus 'arrest allthe measures of the government' And so the United States cannot tax a state officer for the same reason." Upon a similar principle the federal courts have held that the United States government cannot tax the income of state officials. The case of U. S. v. Ritchie, Fed. Cas. No. 16, 168, involved the right of the federal government to tax the income of the state's attorney for the county of P'rederick, in the state of Maryland. The court held that "the United States has no more right to tax these agencies than the state government has to tax the means and agencies to carry on the federal government." In Day v. Bufflnton, Fed. Cas. No. 3, 675, Clifford, Circuit Justice, held that "the salary of a judge of the court of record, payable out of the treasury of a state, is not legally taxable as income under the internal revenue laws of the United States." This ruling was affirmed by the supreme court of the United States. Buffington v. Day, 78 U. S. 113, 20 L. Ed. 122. In ...