Purnell v. Page

• Decision Date: 15 October 1903
• Citation: 45 S.E. 534,133 N.C. 125
• Parties: PURNELL v. PAGE, Sheriff.
• Court: North Carolina Supreme Court

45 S.E. 534

133 N.C. 125

PURNELL v. PAGE, Sheriff.

Supreme Court of North Carolina

October 15, 1903

Appeal from Superior Court, Wake County; Bryan, Judge.

Suit by Thomas R. Purnell against M. W. Page, as sheriff of Wake county. From a decree for complainant, defendant appeals. Affirmed.

A taxpayer may maintain an injunction against the sale of his property under an illegal tax, or may pay the tax under protest, and sue to recover it back.

Locke Craig, for appellant.

E. J Best, W. H. Day, and F. H. Busbee & Son, for appellee.

CLARK C.J.

The plaintiff is United States judge for the Eastern District of North Carolina. The county commissioners of Wake county "under the advice and peremptory instruction of the corporation commission, acting as a board of state tax commissioners," have assessed and levied an income tax upon the income received by the plaintiff from the United States as such judge (after deducting the $1,000 exemption allowed by law), and the defendant, as sheriff and tax collector of Wake county, has levied upon the personal property of the plaintiff, and threatens to sell the same to satisfy the income tax as aforesaid. All other taxes assessed against the plaintiff have been paid except this income tax on his income from the federal government as judge, which tax he claims is illegal, and asks for an injunction to restrain the defendant from selling his property to collect the same.

It has been so long and so well settled by the highest federal court that no state can tax the compensation allowed by the federal government to its officers that it had not been thought that the point could again be raised. Dobbins v. Erie County, 16 Pet. 435, 10 L.Ed. 1022; King v Hunter, 65 N.C. 412, 6 Am. Rep. 754. In Collector v Day, 11 Wall. 1113, 20 L.Ed. 122, it is said: "In Dobbins v. Commissioners of Erie County it was decided that it was not competent for the Legislature of a state to levy a tax upon the salary or emoluments of an officer of the United States. The decision was placed mainly upon the ground that the officer was a means or instrumentality employed for carrying into effect some of the legitimate powers of the government, which could not be interfered with by taxation or otherwise by the states, and that the salary or compensation for the service of the officer was inseparably connected with the office; that if the officer, as such, was exempt, the salary assigned for his support or maintenance while holding the office was also, for like reasons, equally exempt." In that case the court held that for the same reason the United States government is prohibited from taxing the salary of the officers of a state government. As the power of a state to tax is limited only by a restriction, if any, in the state Constitution, and there is none in ours, as to the income tax, which can be levied at any rate the Legislature sees fit, if only it is uniform for each class, and of this classification the Legislature is the judge, it follows that if the General Assembly can tax the incomes of federal officers, they could tax them to be unprofitable, in short, tax them out of existence, as the United States did state banks of issue. Veazie Bank v. Fenno, 8 Wall. 533, 19 L.Ed. 482. In McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579, Marshall, C.J., well said, "The power to tax is the power to destroy." For exactly the same reason, to preserve the independence of the judges and the executive officers named in the Constitution, the General Assembly is forbidden to diminish their salaries, which includes a prohibition of the power to reduce them by taxation, which was settled in this state by the opinion of Attorney General Batchelor, adopted by the Supreme Court (Nash, Pearson, and Battle), 48 N.C. Append. 555, and has since been reiterated by Attorney General Gilmer, and approved by the court, 131 N.C. 692, 42 S.E. 970. To same purport, New Orleans v. Lea, 14 La. Ann. 197, and many other authorities. The only difference is that the state cannot tax the salary of any federal officer, nor can the federal government tax the salary of any state officer, since neither has the right to reduce the support allotted by the other government for its officers; while the state is only prohibited from reducing, by taxation or otherwise, the salaries of the judges and of the few executive officers named in the Constitution, and Congress is likewise prohibited by the federal Constitution only from reducing, by taxation or otherwise, the salaries of the judges and the executive officers named in that instrument. The salaries (and, indeed, the continued existence) of all offices of the United States and of the state not thus designated in their respective Constitutions being subject to the will of the legislative power of each, respectively, are not thus protected by constitutional...