88 S.E. 640 | N.C. | 1916
Lead Opinion
after stating the case: The Court is of opinion that his Honor correctly ruled that a county fence of the kind involved in the
We concur, also, in his Honor’s view, that the two statutes, chapters 116 and 505, Public-Local Laws 1915, passed at the same session and being in pari materia, should be construed together as one and the same law. This is not only true as a general principle of statutory construction applicable to statutes referring to the same subject, and usually whether passed at the same session or not, Cecil v. High Point, 165 N. C., 431; Greene v. Owen, 125 N. C., 219, and Wilson v. Jordan, 124 N. C., 683; but the later statute, chapter 505, in express terms, refers to and makes itself a part of the former.
Considering, then, the principal features of this legislation as a whole, and dependent on approval of a popular vote, a method established and allowed in matters relating to municipal corporations, Cooley on Court Limitations, p. 138, we have the statute providing:
1. That no stock or free-range law shall prevail in Pender County except as to those portions of the county where the stock law prevailed prior to 1 January, 1912.
2. That the act should not become operative till a county-line fence should be constructed in those parts of the county line adjacent to stock-law territory in other counties.
3. That the commissioners, on a majority vote for “no-stock law,” could levy a special tax to maintain the fence with certain restrictive limitations.
And we see no reason why, as designed by this last section, if-it had been otherwise valid, a majority vote for “no-stock law” should not be
While the voters, therefore, may be held to have approved the measure, the statute, to which he has assented, in the feature providing for a tax levy cannot be enforced by reason of the proviso therein that the tax shall not be levied on the property of natural persons in Rocky Point Township,' thus clearly violating our constitutional provision, Article WEI, sec. 9: “That all taxes levied by any county, city, town, or township shall be uniform and ad valorem upon all property in the same, except property exempt by the Constitution.”
Speaking to this question in Kyle v. Mayor, etc., of Fayetteville, 75 N. C., at page 447, Bynum, J., said: “It is the provision and purpose of the Constitution that thereafter there should be no discrimination in taxation in favor of any class, person, or interest, but that everything, real or personal, possessing value as property and the subject of ownership, shall be taxed equally and by uniform rule,” a statement fully approved in Puitt v. Comrs., 94 N. C., 709, and many other cases. “A law, therefore, cannot exempt the property of individuals of a county, township, etc., while imposing a tax on property of same kind belonging to corporations.” And the statute authorizing such a tax cannot be enforced. It is insisted for defendant that only the proviso being unconstitutional, this can be eliminated and the statute authorizing a special tax upheld. It is the recognized principle that “Where a part of the statute is unconstitutional, but the remainder is valid, the parts will be separated, if possible, and that which is constitutional will be sustained.”
In Black on Constitutional Law the rule is said to be: “That if the invalid portions can be separated from the rest, and if, after their ex-
The position, however, is not allowed to prevail when the parts of the statute are so connected and dependent the one upon the other that to eliminate one will work substantial change to the portion which remains. Thus, in Black’s work, the author further says, page 63: “And if the unconstitutional clause cannot be rejected without causing the statute to enact what the Legislature did not intend, the whole statute must fall.
Speaking to the same subject in the first of the Employers’ Liability Cases, 207 U. S., pp. 463-501, the present Chief Justice White said: “Equally clear is it, generally speaking, that when a statute contains provisions which are constitutional and others which are not, effect must be given to the legal provisions by separating them from the illegal. But this applies only to a case where the provisions are separable and not dependent one upon the other, and does not support the contention that what is indivisible may be divided. Moreover, even in a case where legal provisions may be severed in order to save, the rule applies only when it is plain that the Legislature would have enacted the legislation with the unconstitutional provisions eliminated.” Citing Illinois Central R. R. v. McKenonill, 203 U. S., 514.
The doctrine so stated has been applied in this State in numerous cases, Greene v. Owen, 125 N. C., 212; Riggsbee v. Durham, 94 N. C., 800, and is not infrequently extended to provisos which are unconstitutional; but, recurring to the principle and the limitations upon it, the position can never include a case such as this, where “to strike out the offending proviso would result in enlarging the effect and operation of the body of the law.” This position is very well stated in 1 Lewis Sutherland Statutory Construction (2 Ed.), sec. 306, as follows:
“If by striking out a void exception, proviso, or other restrictive clause, the remainder, by reason of its generality, will have a broader scope as to subject or 'territory, its operation is not in accord with the legislative intent, and the whole would be affected and made void by the invalidity of such part.” To strike out the proviso here would be to subject the property of the individual owners of property in Rocky Point Township to the tax, and thus would be to read into the body of the law what the Legislature had not put there and what they did not intend.
It is suggested that all taxation on property in Rocky Point Township might be eliminated as unconstitutional, on the ground that the effect of the legislation we are considering is to divide Pender County
Tbe statute as an entirety contains, as stated, the three propositions:
1. That on approval of tbe popular vote, free-range law shall prevail in all that portion of Pender where tbe stock law did not exist prior to January, 1912.
2. That tbe act should not go into effect till tbe county-line fence was built.
3. That a special tax should be laid to raise money for tbe fence, etc.
And under tbe principle, heretofore stated, that tbe valid portions of tbe law shall be sustained wbicb are distinct and severable, we think tbe vote as to tbe establishment of tbe free-range policy should be upheld, to be put in effect whenever by appropriate and valid legislation tbe means are provided for building tbe fence, Moran v. Comrs., 168 N. C., 289; requiring another vote of tbe people, however, if tbe means are to be raised by a special tax.
It may be that the building of tbe fence, having been sanctioned by tbe Legislature, has so far become a valid county charge that if at any time there are surplus funds in tbe county treasury arising from general taxation, and not required for current expenses of tbe county, tbe commissioners would have tbe power to build tbe fence from such funds, Comrs. v. McDonald, 148 N. C., 125; Jackson v. Comrs., ante, 379; but no such question is presented here, tbe facts showing that the only moneys now in tbe treasury are those arising from taxation for special purposes and wbicb may not be lawfully used for any other,
Having held that the fence in question is not a necessary .county expense, and that the special tax provided to build it may not -be levied because its provisions are in violation of Article VII, sec. 7, of the Constitution, prohibiting municipalities from contracting debts, etc., or levying taxes except for necessary expenses unless approved by popular vote, the judgment below restraining the borrowing of money for the contemplated purpose is so far modified as to strike therefrom the words “until the taxes authorized by chapter 505, Public-Local Laws 1915, can be levied and collected,” and, so modified, same is affirmed, the result being that
On appeal of plaintiff, judgment modified and affirmed.
On appeal of defendant, judgment affirmed.
Dissenting Opinion
dissenting: I understand the following principles to be recognized and approved in the opinion of the Court, to which I agree:
1. That the building of a fence for the purpose of carrying into effect the statutes referred to in the opinion is not a necessary expense.
2. That under the legislative acts it is necessary that a fence be built before the free range is operative in Pender County.
3. That a vote for free range necessarily included a vote for the tax prescribed in the statute.
4. That the proviso in the statute relating to Rocky Point stock-law district is unconstitutional and void.
5. That the effect of voting for the free range was to divide the county into two districts, in one of which were the stock-law territories in existence prior to 1912, and that the other was the free-range district.
6. That the property in the districts left under the stock law after the vote cannot be taxed for the purpose of building the fence around the free-range district, because this would destroy the principle of uniformity;
7. That a part of a statute may be constitutional and a part unconstitutional, and that the constitutional part may be enforced.
I dissent from that part of the opinion holding 'that the tax provided for by the statute cannot be levied on the property in the free-range district for the purpose of building the fence around the free-range district without another vote of the people.
The question has already been submitted to the people and they have already voted for free range and for the tax; and striking from the tax
If the principle is recognized that the property in the stock-law district cannot be taxed for the purpose of building the fence, and the question was again submitted to the people, they would be called upon to vote on the same proposition which they have already determined.
In other words, the people in the free-range part of the county have voted for free range and that a fence shall be built and for a specific tax, and if it is held that the tax cannot be collected in the territory left under the stock law and can be collected in the district for which free range has been voted, the voters in the free-range district get what they voted for, and they are not subjected to the payment of any more taxes than they would have to pay if those in the stock-law territory also paid the tax.
Lead Opinion
ALLEN, J., dissenting.
After stating the case: The Court is of opinion that his Honor correctly ruled that a county fence of the kind involved in the appeal is not a "necessary expense" within the meaning of (456) Article VII, sec. 7, of the Constitution, prohibiting counties, towns, etc., from contracting debts, etc., and levying taxes "except for its necessary expenses." While this term may not be given a fixed or arbitrary meaning, Fawcett v. Mount Airy,
We concur, also, in his Honor's view, that the two statutes, chapters 116 and 505, Public-Local Laws 1915, passed at the same session and being inpari materia, should be construed together as one and the same law. This is not only true as a general principle of statutory construction applicable to statutes referring to the same subject, and usually whether passed at the same session or not, Cecil v. High Point,
Considering, then, the principal features of this legislation as a whole, and dependent on approval of a popular vote, a method established *520 and allowed in matters relating to municipal corporations, Cooley on Court Limitations, p. 138, we have the statute providing:
1. That no stock or free-range law shall prevail in Pender County except as to those portions of the county where the stock law prevailed prior to 1 January, 1912.
2. That the act should not become operative till a county-line fence should be constructed in those parts of the county line adjacent to stock-law territory in other counties.
3. That the commissioners, on a majority vote for "no-stock law," could levy a special tax to maintain the fence with certain restrictive limitations.
And we see no reason why, as designed by this last section, if it had been otherwise valid, a majority vote for "no-stock law" should (457) not be construed and considered as an adequate and sufficient expression of approval by the voters, authorizing the commissioners to lay a tax for the specific purpose. We have held that the combining of two related propositions and taking the sense of the voters thereon by a single ballot is, as a general rule, a question for legislative determination, Winston v. Bank,
While the voters, therefore, may be held to have approved the measure, the statute, to which he has assented, in the feature providing for a tax levy cannot be enforced by reason of the proviso therein that the tax shall not be levied on the property of natural persons in Rocky Point Township, thus clearly violating our constitutional provision, Article VII, sec. 9: "That all taxes levied by any county, city, town, or township shall be uniform and ad valorem upon all property in the same, except property exempt by the Constitution."
Speaking to this question in Kyle v. Mayor, etc., of Fayetteville, 75 N.C. at page 447, Bynum, J., said: "It is the provision and purpose of the Constitution that thereafter there should be no discrimination in taxation in favor of any class, person, or interest, but that everything, real or personal, possessing value as property and the subject of ownership, *521
shall be taxed equally and by uniform rule," a statement fully approved inPuitt v. Comrs.,
In Black on Constitutional Law the rule is said to be: "That if the invalid portions can be separated from the rest, and if, after their excision, there remains a complete, intelligible, and valid statute (458) capable of being executed, and conforming to the general purpose and intent of the Legislature as shown in the act, the same will not be adjudged unconstitutional in toto, but sustained to that extent."
The position, however, is not allowed to prevail when the parts of the statute are so connected and dependent the one upon the other that to eliminate one will work substantial change to the portion which remains. Thus, in Black's work, the author further says, page 63: "And if the unconstitutional clause cannot be rejected without causing the statute to enact what the Legislature did not intend, the whole statute must fall."
Speaking to the same subject in the first of the Employers' LiabilityCases,
The doctrine so stated has been applied in this State in numerous cases,Greene v. Owen,
"If by striking out a void exception, proviso, or other restrictive clause, the remainder, by reason of its generality, will have a broader scope as to subject or territory, its operation is not in accord with the legislative intent, and the whole would be affected and made void by the invalidity of such part." To strike out the proviso here would be to subject the property of the individual owners of property in Rocky Point Township to the tax, and thus would be to read into the body of the law what the Legislature had not put there and what they did not intend.
It is suggested that all taxation on property in Rocky Point Township might be eliminated as unconstitutional, on the ground that the effect of the legislation we are considering is to divide Pender (459) County into two districts, the stock law and free-range territory, and to tax Rocky Point, which had to build and maintain its own fence, in order to construct a fence for the protection of the no-range territory, would be a violation of right, in that it taxed one district for the exclusive benefit of another. This, too, is a recognized principle, that, under ordinary conditions, the property of one district may not be taxed when it clearly appears that such tax is for the exclusive benefit of another. Burrett v. Mayor,
The statute as an entirety contains, as stated, the three propositions:
1. That on approval of the popular vote, free-range law shall prevail in all that portion of Pender where the stock law did not exist prior to January, 1912.
2. That the act should not go into effect till the county-line fence was built.
3. That a special tax should be laid to raise money for the fence, etc.
And under the principle, heretofore stated, that the valid portions of the law shall be sustained which are distinct and severable, we think the *523
vote as to the establishment of the free-range policy should be upheld, to be put in effect whenever by appropriate and valid legislation the means are provided for building the fence, Moran v. Comrs.,
It may be that the building of the fence, having been sanctioned by the Legislature, has so far become a valid county charge that if at any time there are surplus funds in the county treasury arising from general taxation, and not required for current expenses of the county, the commissioners would have the power to build the fence from such funds, Comrs. v. McDonald,
Having held that the fence in question is not a necessary county expense, and that the special tax provided to build it may not be levied because its provisions are in violation of Article VII, sec. 7, of the Constitution, prohibiting municipalities from contracting debts, etc., or levying taxes except for necessary expenses unless approved by popular vote, the judgment below restraining the borrowing of money for the contemplated purpose is so far modified as to strike therefrom the words "until the taxes authorized by chapter 505, Public-Local Laws 1915, can be levied and collected," and, so modified, same is affirmed, the result being that
On appeal of plaintiff, judgment modified and affirmed.
On appeal of defendant, judgment affirmed.