State Ex Rel. Miller v. Buchanan

• Decision Date: 28 June 1884
• Citation: 24 W.Va. 362
• Parties: State ex rel. Miller, Auditor, v. Buchanan, Assessor.
• Court: West Virginia Supreme Court

24 W.Va. 362

State ex rel. Miller, Auditor,

v.Buchanan, Assessor.

Supreme Court of Appeals of West Virginia.

Submitted June 20, 1884

Decided June 28, 1884.

1.The legislative executive and judicial departments of the goyern|merit must be kept separate and distinct, and each in its legitimate sphere must be protected, (p. 379.)

2. Each department of the government may decide what the law is upon any subject within its jurisdiction, and that must be regarded as the law until it is finally decided to be unconstitutional by the Court of last resort, to which the Constitution, equally binding upon all of the departments, has committed the final decision. And if 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, (p. 379.)

3. The Constitution vests the chief executive power in the Governor and requires that he shall take care that the laws be faithfully executed. Under this positive requirement of the Constitution the Governor must, under the oath he has taken, be vigilant and with all the power at his command require the execution of the valid laws, which the Legislature has passed; because in its wisdom the Legislature 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 neglects to discharge his duty, and the object of the legislative department, to the extent the laws have not been executed, has failed, (p. 381.)

4. Before the Govener executes a law, he must of necessity decide, whether the act of the Legislature, which he is thus called upon to execute, is constitutional and valid or unconstitutional and void. (p. 381.)

5. The Governor having jurisdiction of the subject decided, that the effect of the decision of the Supreme Court of Appeals in Railway Co. v. Miller, Auditor, 19 W. Va 436, was to declare uncon- stitutional and void so much of section 43 of chapter 12 of the Acts of 1881, as exempted from taxation certain property therein specified, and that said chapter 12 was a complete tax-law. without said portion of said section, and requested the Auditor, who has the oversight of the assessors in the various counties and districts in the State, to instruct the said assessors in their assessments to disregard said portion of said section and assess the property therein attempted to be exempted, and the Auditor gave said instructions. The law so construed by the chief executive and given by the Auditor in his instructions to the assessors was binding on them. (p. 382.)

6. The constitutionalty of said section 43 can be tested by the tax-

payer, when the law, as so declared by the Governor, is made to operate on him. It is then his right, as a citizen, to resort to the court by the proper proceedings and have it decided, whether the property claimed by him to be exempt under said section 43 of chapter 12 Acts of 1881 is liable to be assessed; and if the court should decide against him, he could then appeal to the Supreme Court of Appeals, which would either sustain said section 43 or declare it unconstitutional, so far as it attempted to exempt said property, (p. 382.)

7. It is not the right of a subordinate executive or ministerial officer

to arrest the excution of the law as construed by the chief executive, and he cannot justify his insubordination on the ground that the Governor had decided wrong; his duty is obedience to the law as thus construed, (p. 382.)

8. It is no concern of the assessor, as such, whether the tax is illegal

or valid. It is his duty to obey the instructions of his superior 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 he has been by the Auditor under the decision of the Governor instructed to enter on his personal property-book, he cannot shield himself by denying the legality of the instructions. The question whether said section 43 is or is not constitutional is not decided in this case as it is deemed that such decision is neither necessary nor proper in this proceedi ag. (p. 384.)

9. As mandamus is a discretionary writ, if it manifestly appeared

to the Court, that the articles enumerated in the alternative writ were under the law exempt from taxation, the Court would decline to issue the writ, not because the respondent has any right to make such defence or rely on such reason as an excuse for his insubordination, but because the Court would not be willing to involve the citizens in expensive litigation growing out of the imposition of a clearly illegal tax. (p. 384.)

10. Mandamus is the proper remedy to compel an assessor to assess

property, which is liable to taxation. While the exercise of judicial discretion will not be controlled by mandamus, yet mandamus is proper to compel the assessor to exercise his 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 propty-book. (p. 385.J

11. The statute, which requires that a copy of the personal property-

book shall be by the assessor delivered to the county-clerk on or before the first day of July, is directory, (p. 386.)

12. The right of the State to have her revenue assessed and collected

cannot be lost by the laches of her agents, (p. 386.)

Johnson, President, furnishes the following statement of the case:

On June 5, 1884, Joseph S. Miller, Auditor of this State, presented his petition in which he alleged, that he is and was before and since January 1, 1883, Auditor of this State, and as such, is specially charged with the oversight and management of the assessment of taxes therein and with the oversight and control of the assessors of the various counties and assessment districts of said State; that subsequently to the rendering of the decision of the Supreme Court of Appeals in the case of the Chesapeake and Ohio Railway Company against him, as such Auditor, to-wit, on February 26, 1883, he received from the Governor of the State an official communication addressed to him, as such Auditor, calling attention to the construction given by the said Court in said decision to the Constitution of the State and the laws governing the taxation of property, suggesting that this construction determined the unconstitutionality of the exemption from taxation of property mentioned in section 43 of chapter 12 of the Acts of the Legislature of 1881, and requesting the petitioner, as Auditor as aforesaid, to instruct the assessors in the several counties in the State, to assess and return all property for taxation, except the property exempted by the Constitution, a copy of which communication is filed with the petition as a part thereof; that in pursuance of the Governor's request, and of what petitioner conceived to be his duty under the law, and in compliance with the provi- visions of section 5 of said chapter 12 of the Acts of 1881, he afterwards, to-wit, on March 5, 1883, sent to each of the assessors in the several counties in the State a printed circular containing a copy of said communication of the Governor to him and instructions by him to said assessors to disregard so much of the said section 43 of chapter 12 Acts of 1881, as provided for the exemption from taxation of any other classes of private property except those used for educational, literary, scientific, religious or charitable purposes or for cemeteries; and to assess all private property not belonging to one or another of these excepted classes; a copy of said instructions being filed with the petition, and made part thereof; that one of said circulars containing said instructions was sent to T. II. Buchanan, assessor of Brooke county, on or about the 5th day of March, 1883; that about the 1st day of January, 1884, another of said circulars containing said instructions was again sent, by the petitioner to each of the assessors in the State, including said T. H. | Buchanan; that instructions thus given have never been in any manner modified or revoked; that petitioner is | advised that those portions of section 43 of chapter 12, Acts of 1881, which attempt to exempt from taxation agricultural productions grown directly from the soil, and the products j and increase of live-stock produced within this State during the year preceding the first day of January, and remaining unsold on that day, in the possession of the original owner, or his agent; the produce during the same time of mines, salt-wells and oil-wells, within the State, remaining unsold in the hands of the producer, or his agent, on the first day of January, and all manufactured articles and products of mechanical skill and labor, produced in this State during the same time, and remaining unsold on the first day of January, in the hands of the producer or his agent, are unconstitutional, and that it is the duty of the assessors in the several counties of the State and of the defendant, Buchanan, to assess the said property; that in the said county of Brooke there were on the first day of January, 1881, large quantities of said property in the hands of numerous citizens of said county; that said Buchanan has been the assessor of said Brooke county since the first day of January, 1883, and still is such assessor; that since the first day of January, 1884, the said assessor has been proceeding to ascertain the personal property subject to taxation in said county and to make entries thereof in his personal propertybook, but although he well knew of the existence of great quantities of personal property of great value in his county subject to taxation, as aforesaid, consisting of agricultural products, &c, naming them, and consisting of the...