*1 SUPREME, IN THE COURT. v. HARPER COMMISSIONERS OF NEW HANOVER COUNTY.
(Filed 6, 1903.) October 1903, 1. ch. 1903, TAXATION—Fences—Stock Lato—Acts 56—Acts Const., VII, 1899, eh. Art. sec. ch. 9—Acts 290. 554— 1903, 554, 56, 1903, ch. an act being supplemental Acts to Acts ch. repealing county, the stock law in a township New Hanover and providing that the commissioners of the shall fence necessary defray expenses where from the fund general county treasury, in the real thereafter taxable estate in the a tax replace sufficient to the amount drawn fund, tax, general out of the regarded authorizing if vio- Constitution, VII, 9, lates the directing Art. sec. taxes “all * * * by any county levied shall be uniform and valo- ad upon all property” county. rem 1908, 2. TAXATION—Fences—Stock Law—Assessments—Acts ch. 55If. 1903, 554, ch. regarded Acts as an authorizing imposition act assessments, special invalid, because assess- authorizes ments on the estate of the the real including entire estate withdrawn stock benefits of the law, and which would receive no benefits from the fences erected
by the commissioners. Í903, 3. TAXATION—Fences—Stock Law—Assessments—Acts ch. 554- 554, ch. Acts cannot be held valid far as it authorizes so necessary commissioners erect fences out and to draw when same, general county money fund of the to pay for the and invalid far as it imposition so authorizes of a tax or used, replace money for the so court cannot legislature
presume expense have directed the would building the fences to be taken with- out of fund also making provision money replacing withdrawn. — Assessments—County 4. TAXATION Fences—Stock Commis- Law— Code, sioners—The sec. 2824. Code, sec. providing may levy law fences the commissioners assess- county, township ment on all real estate taxable “within TEEM, O.] V. HARPER COMMISSIONERS.. *2 law,” the may adopt district does not authorize the stock township
imposition of an on the estate of real legisla- by express withdrawn from the benefit of the stock law the money to raising replace tive for the of enactment the money expenses fund to general withdrawn from the of fences erected the commissioners. Board J ohn and others W.
ActioN against by Judge of Commissioners of Hanover heard New County, Peebles, C., during R. B. at Chambers, Wilmington, of Court of Hanover May Term, Superior New 1903, defendants From a fon County. plaintiffs judgment appealed.
B. K. for the Bryan, plaintiffs. & for the defendant.
Rountree Carr and J. D. Bellamy, of Pub- of 290 J. ConNor, chapter By provisions of “except lic of New Hanover County, Laws whole 1899, river Fear which lies between portion Cape under the “stock Fear was river,” placed Northeast Cape necéssary to build law” directed all and the Commissioners 1903, 56 Laws of entitled etc. chapter fences, By in Federal Point law “An act to repeal was 1903, January 29, Hanover ratified County,” New act of June 1903, from and after enacted described Hanover of New to that portion shall not apply directs the Commissioners 2 of this act Section in said act.” “and necessary, fence have erected a where county of said said constructing defraying expenses treasurer the county draw upon the said board may gates out therefor sum sufficient Hanover of New said levy thereafter and may of said county, fund of the general in said territory State estate taxable by the amount tax sufficient replace out and collect so fenced IN THE SUPREME COURT. Harper so drawn In etc. passage fund/’ act the Art. II of the Constitu- provisions section tion were but the complied with, proposition make the law change was the assessment not submitted the voters or of affected New Hanover. On 29th an act was January, 1903, passed by “An entitled act Legislature act enti- supplemental tled an act to the stock law in Federal repeal Point township, New Hanover this act county.” By the words so “territory fenced out” are stricken out and the inserted “county” word in lieu thus thereof, act to making original impose upon *3 the County Commissioners the of a tax on all duty levying real in said property This county. last named act was not passed accordance with the of section Ar- requirements II of the ticle Constitution. The and plaintiffs are citizens of tax-payers the New and owners of land Hanover, in Federal Point township. and admitted They allege, the by answer that accordance with the of said provisions act the defendants, “are about to build Commissioners, the said fence, and have actually surveyed accord- lines, to the said and for ing advertised act, have bids said as authorized said and fence, by act, unless re- will, strained this honorable build by the said fence in Court, act, with terms of said accordance and levy cost the same the real against property situate territory wherein the law is said fence re-established and said act, will to collect the proceed same,” Plaintiffs also-, etc. allege, from, “that will receive no benefit whatever they the said act, but said act restores and other only plaintiffs real said their common law estate territory right To pasturage.” Commission- allegation defendants, ers, that say have information sufficient they knowledge to form a and are advised belief, immaterial they this action. TEEM, G] V.
HARPER COMMISSIONERS. was to come T. bis application, permitted J. Burnett, himself files in and make defendant and thereupon party an material but answer to the complaint, admitting facts, acts are and that the construc- void, alleging denying tion of said fence defend- is necessary expense ant without enactment, can erect with or legislative a tax within limits sufficient to constitutional levy He also cost the same. denies the allegation will no benefit from receive construction plaintiffs of said He that the Commissioners de- fence. admits have the cost the fence cided to and expense constructing assess in the the real enclosed against property fence and entire against property collect tax on real and that will proceed property they situated in and that have they surveyed said territory, lines advertised for etc. The bids, plaintiffs pray erect the may enjoined proceeding the defendants threaten to do. they and to the assessment Upon order was issued, complaint restraining order Peebles said was continued Judge before hearing to the appealed. the defendants hearing,
If cannot sustained enactment January 29, an it is clear that it cannot be sustained as assessment, *4 in it because is not authority uniform, tax, in the tax to be levied upon authorizes the estate only sec. directs Art. Constitution, whereas the VII, 9, territory, town that “all taxes levied any county, city, by valorem in the shall and upon property uniform ad and Constitution,” this exempted by except property same, N. C., 1, in v. Elizabeth 15 City, Cobb held, this Court as on as well on personal must be levied taxes, “all therefore, question this build (the whether Hence the real property.” meaning within the expense” be a “necessary fences) ing not But presented. Art. V the Constitution, section THE, IN SUPREME COURT. the defendants tax tbe authorized to be is a say levied and comes within the principle frequently announced this Court assessments for local by regard which improvements. The assessments principle upon these are sustained is thus Dillon: stated Mr. Justice “A con by stitutional that taxation shall be uniform provision equal not to local throughout the State does assessments apply upon private local 2 Dillon property improvements.” Mun. Commissioners, v. sec. cited Cain Corp'.3 Commissioners, Smith, 8. In Busbee v. 93 N. C., C., 143, J.,C. “But these local assessments are not under all the says: put restraints stand upon taxing power. They upon different and rest con footing upon equitable just sideration lands rendered more valuable improve im ments to contribute to the ought expense mailing and that fall these not to provement, expenses ought entire tax as well who not are bene payers, those body as fited those who benefited. is to the land, The advantage land.” It would only persons whatever therefore, that the two acts seem, validity, any, virtue announced have, principle referred the case cited. consideration of
We brought are thus question local can be sustained as assessments. The whether they of this which assessments character have been theory upon Court is that a benefit our clearly exceptive sustained by to the must wdiich it is property upon enure perceived plainly A of the several decisions of this Court review sus- imposed. assessments taining erecting within which live around common stock shall to run at will show that as permitted large bur- greater land owner, den removed thus should he, such, which this result bear expense by is brought about. legislation subject, whole few past *5 Ill TEEM, G] Hakpee been to a of tbe is State, extended
years large portion very land relieved tbe thereby based are .theory around their cultivated of of necessity maintaining of a common around and the establishment fence fields, lands, other a benefit to such the entire is is of in burden. doctrine that it relieves the owners this The Commissioners, Smith, J., in C. Cain v. supra: thus stated by and to be law a sufficient built “The requires land to it from around all cultivated protect dep kept up expense, redations great unceasing at and stock, very the material in its con used the more onerous becoming The scarcer and enactment costly. struction becomes more enclosures for each man’s with separate proposes dispense fence around the and substitute a common land, inroads lands from the all agricultural boundary protect owned within stock from and abroad, fencing-in stock in of interest upholding limits. creates a community its It and distinct barriers one barrier each separate place burden lessens the common weight thus plantation, soil must otherwise individually that each cultivator from land is thus removed burden bear. As the greater which this bear expense by ought such, owner, he, interest benefited by The result about. brought is of the sum necessary law is with payment charged no statute more, the benefit. what This, securing just is obnoxious this respect proposes do, from land as it free from the taxed proprietor, objection with was in It accordance impediments.” constitutional any of 1899 passed, by Act was that the principle of New to the law were secured stock benefits an entirely based Hanover. legislation benefits theory. Certainly different and contradictory of Fed land owners withdrawn law are maintain thus required they Point eral *6 THE IN SUPREME COURT. Harper «. Commissioners.
individual fences their is around it separate parcels land, to or difficult how are their relieved they see benefited lands fence from the burden them any by erecting separating other of the concur with his Honor’s We portions county. set in be been true, view the “If as it judgment: our that in held changing frequently Supreme Court, to fields the of individual fences around old cultivated system fence common the cultivated the new to system protect lands within said fields common the enclosed fence, a common than benefit equal greater fence receive it then must neces- fence, said common up burden keeping follow in new system restoring that sarily abolishing Point so as Federal township concerned, far old, in will to the lands Federal Point benefits result If tax as assessment. the act is township support as the defendants are to enforce enforced, attempting it, lands in Point will taxed to fence Federal build a be other their stock from on lands of New keep running and also to its individual keep Hanover up County, This township.” would seem around cultivated fields said of this cause. to be the disposition conclusive In what we however, said, to' addition, supple- have mental while it be as authorizing imposi- invalid may act, certainly of the whole tion a tax people Commissioners from the power valid as withdrawing them so out, a tax within the fenced leaving levy tax or assessment whatever without any authority however, It is that the fence. suggested, of the other portion legislation, result act of be valid and 1903, may impose January 29, and paying the Commissioners duty erecting is well out of for it fund. settled While general and invalid it is an act valid may part, equally part manifest act settled when it contemplates well TERM, 0.] V. COMMISSIONERS. HARPER scheme or parts one provides purpose, and he so other that it cannot interdependent upon the one would enacted that the General have
supposed Assembly valid portion law the invalid portions eliminated, with is thus will he sustained. stated by The principle Chief Shaw, are so parts in 2 84: “If the different Justice Gray, con with and each dependent other, connected mutually *7 as to or for each other, ditions, compensations considerations a intended them as warrant belief that the a whole, Legislature if be carried into effect the all could not Legislature residue some would not pass independently, parts which are thus unconstitutional, provisions dependent, or must fall with Pollock v. conditional connected them.” Co., and Trust 158 U. cannot S., Farmers Loan We have would directed expense that the suppose Legislature taken of the fund this be building made no it a special provision replacing by the county were lands, benefited any, assessment imposed upon this should is If construction be it given act, thereby. under it could the decisions of sustained, whether
doubtful a The defendants necessary expense. suggest, as Court, sustained tax must be under provisions that the however, Code. concur with Honor 2824 of his of section We section exactly of this opposite that the holding purpose be invoked. It therein pro it is sought stock-law “for vided and collect a may levy the county of Commissioners Board State taxable by all real property assessment upon may district which within county, and county be greater such shall law>¿ assessment but adopt of said prop of the value centum per one-fourth one than assessment is which the within proposed The territory erty.” rejected but expressly not adopted not only levied be sustained. could not hence such an stock law; 133-8 THE IN SUPREME COUNT. v. Commissioners. Honor' of the that bis correctly are therefore opinion
We hearing. continued the injunction affirmed. Judgment C. concurs ground:
ClaRK, J., the act of January, conferred by 1. That authority Point Federal a tax land by supple- repealed to build the fence was Township act. mentary tax be levied upon payers
2. That it cannot and repeal- by supplementary whole as required an there assessment, it cannot be sustained as because ing act, and as act “to impose of burden, no land relieved being laid on well personalty not is defective being tax” in the mode required not passed because also was realty, Constitution, and, II of the besides, Art. section ex- because, “necessary county being invalid, further Art. VII, not voted the people. Const., tax was pense,” *8 sec. 7. for that under sec. Code,
3. It cannot be levied territory adopt- realty any an assessment upon authorizes and, besides, is an anti-stock law, law. a stock This ing territory. adopted by any been