Aftеr stating the above. It was wholly unnecessary, and attended with useless expense, to prosecute both appeals, since every exception to which the first refusal of the writ is liable lies with equal forcе against the last, and the same relief is attained by allowing it upon either application. We should be disposed therefore to tax the appellants with the costs of a needless record, if the merits wеre found to be with them upon the subject matter in dispute, and if we should direct the issuing of the injunction.
The arrest of proceedings to enforce the act is asked upon the several grounds that the form of legislatiоn adopted, •making the operation of it dependent upon the volition of voters, is unwarranted as an attempted abnegation of legislative functions; there has not been a compliance with thе *13 precedent condition of a written approval of a majority of the qualified voters ; and the provisions of the enactment are repugnant to the constitution.
These we propose to examine,
1. The form of legislation :
It has not been seriously questioned thаt the legislature may make an enactment to take effect only upon the happening of a contingent event; but it has been earnestly maintained that when the event is the expression of the popular will, ascertained by an election, it is in effect a transfer ot legislative power to the voters. In reference to this distinction, Redfield, C. J., in an elaborate opinion delivered in
State
v.
Parker,
26 Ver., 357, says, that “the distinction аttempted between the contingency of a popular vote and other future contingencies is without all just founda.tion in sound policy and sound reasoning,” What differences may be found in the adjudications elsewhere, it is settled by the decision in
Manly
v.
City of
Raleigh, 4 Janes Eq,, 370, that such power may be exercised by the legislature, and it is declared that “ when it is provided that a law shall not take effect unless a majority of the people vote for it, or it is accepted by a corporation, the provision is in effect a declaration that in the opinion of the legislature the law is not expedient, unles? it be so voted for or aсcepted.” This principle underlies all “local option” legislation and is fully recognized and established in this state.
Caldwell
v.
Justices,
2. The operation of the act:
The plaintiffs insist that the requisite number of voters have not given their sanction to the law, and that many оf them whose names are signed to the petitions are not of the class of qualified voters of the county.
It does not appear, however, that the number of subscribing petitioners exceeds half the number оf those who voted at the preceding, election of electors- of president,, and the
*14
commissioners have adjudged the fact that the preliminary condition to the operation of the act has been fulfilled, and acting upon the decision they have entered upon the duties it has enjoined, and given public notice thereof. The proposal is to show the necessary number have not approved, by impeaching the electoral qualifications of a large number of those who have signed the petitions, upon which the action of the commissioners is based, and thus practically reverse their judgment. Is it admissible todo this? In
Simpson
v.
Commissioners of Mecklenburg,
The serious inconveniences and embarrassments that will follow the recognition of the right of the citizen to controvеrt the truth of the declared fact, are pointed out in the recent case of
Norment
v.
Commissioners,
3. The method of taxation :
The constitution directs that taxes be imposed by a uniform rule upon moneys, credits and investments, and upon real and persоnal property according to its true value, (Art. V, § 3,) and that such as are “ levied by any county, city, town or township shall also be uniform and ad valorem upon all property therein.” Art. VII, § 9.
These restraints are referable to taxation of objects in which all havе a common interest, and when disregarded render the levy invalid.
Young
v.
Henderson,
After enumerating various objects for which local assessments are made, such as opening streets, constructing levees, laying pipes for drainage, Judge Cooley remarks, that tо warrant the levy of local assessments, there must not only exist in the case the ordinary elements of taxation, but the object must also be one productive of special local benefits, so as to mаke applicable the principles upon which special assessments have hitherto been upheld.” Cooley Tax., 428.
Referring to provisions in the constitution of several states which require uniform and equal taxation on property, the same author says : “ The view generally expressed is that though assessments are laid under the taxing power *16 and are in a certain sense taxes, yet they are a peculiаr class of taxes and not within the meaning of that term, as it is usually employed in our constitutions and statutes.” Ib., 446.
“ A constitutional provision that taxation shall be equal and uniform throughout the state,” observes Mr. Justice Dillon, “ does not apply to local assessments upon private property to pay for local improvements.” 2 Dill. Mun. Corp., § 617. To like effect, Burroughs Tax., § 39.
In Moore v.
Stocker,
In
People
v.
Mayor, &c., of Brooklyn,
We can scarcely conceive a case more clearly within the compass of the rule than that now under сonsideration. The general law requires a sufficient fence to be built and kept up around all cultivated land to protect it from the depredations of stock, at a very great and unceasing expense, becom *17 ing the more onerous as the material used in its construction becomes scarcer and more costly. The enactment proposes to dispense with separate enclosures fоr each man’s land, and substitute a common fence around the county boundary to protect all agricultural lands from the inroads of stock from abroad, and the fencing in of stock owned within its limits. It creates a сommunity of interest in upholding one barrier in place of separate and distinct barriers for each plantation, and thus in the common burden lessens the weight that each cultivator of the soil must otherwise individually bear. As the greater burden is thus removed from the land owner, he, as such, ought to bear the expense by which this result is brought about. The special interest benefited by the law is charged with the payment of the sum necessary in securing the benefit. This and no more is what the statute proposes to do, and in this respect is obnoxious to no just objection from the taxed land-proprietor, as it is free from any constitutional impediments..
4. The excess over the limits of taxation:
From whаt has been said, this as well as the other provisions of the constitution which prescribe the mode of taxation, are not intended to be, and are not restraints upon the species of local assessmеnts to which the present belongs. But if it were, the objection is removed by the special approval of the general assembly given in the act itself. Const., Art. V, § 6, interpreted in
Broadnax
v.
Groom,
In our opinion all the grounds upon which the court is asked to interpose and frustrate the execution of the enactment are untenable, and the injunction was properly refused.
We, therefore, declare there is no error,, and sustain the' ruling of His Honor. Let this be certified.
No error. Affirmed.