Moose v. Board of Commissioners

1916. 419 TEEM, 0.] Moose v. Commissioners. F.

J. MOOSE als. OF BOARD OF COMMISSIONERS ALEXANDER et

COUNTY et als.

(Filed November, 1916.) 9 Counties—Special 1. Taxation —Constitutional Tax —Poll Tax. Law — Y, 1, equation Constitution, providing Article section an our between property poll capi- tax, requiring county and and that “the and State head,” tation tax shall never exceed is related to "and should article; Held, be construed with that sections same and it is the imposed expenses levy ordinary the limitation for the county governments, which, ap- the State and under is to plied, support poll, so far as to it relates the to the education and the poor; by and that under section 6 taxes be “levied county purposes the commissioners of the several counties for in like taxes, manner with the State shall never double of the the special except purpose, special approval for a the Assembly.” of the General Statutes—Equation—Bond 2. Issues. Same — levy prescribed by The limitation to the tax Article sec- apply levy special tions 1 our Constitution does not of a county purposes, Legislature tax road authorized the under thereof, county section 6 submitted to vote the the electors of the duly approved by them; and where the statute authorizes issue of purpose upon property polls, providing bonds for such the the observed, between the and at the time county imposed the taxes reached the limitation Article V, provisions sections 1 and bonds issued in accordance with the ground authorizing are not statute unconstitutional the void that the statute them is county that the tax in would exceed equation prescribed impossible separate prop- would make it to erty special special' poll. tax from the tax on the Counties—Special Statutes—Legislative 8. Powers —Consti- Taxation — Tax— Law. tutional power Legislature The constitutional conferred on the to authorize special levy counties county purposes State, exer- essential the existence Legislature supreme. cise of this The doctrine of stare decisis discussed. * Counties—Special Polls—Elector—Disqualification. 4. Taxation — Tax— Legislature, V, 6) power (Art. Where exercise sec. county authority an- confers on additional tax in excess (secs. 2), pay poll tax of 1 and failure additional disqualify failing person pay vote; does for this directly pay applies to the failure levied under the V, secs. 1 and 2. limitation of Taxation —Counties—Roads—Necessaries. A of taxes authorized statute for road expense. necessary is for a THE COURT. IN SUPREME Moose v. 6. Taxation —Statutes—Bond Issues —Par—Resales. county at their to issue tax bonds Where statute authorizes a deposit interest, value, per of to time certificates face bear 5 cent per partly bearing only period 2 taken cent are a short of time for price purchase exchange, rate the difference in the interest reduces void, requiring par, to transaction a resale of the bonds below and the accordance the terms of the statute. with Clark, J., Walker, J., dissenting.

Brown, J., concurring; dissenting; C. 14 January, MotioN made before to continue limiting, from Alexander. hearing; order to tbe restraining others, by is an action E. Moose and residents brought This J. County, the board of commissioners of taxpayers against of Alexander said restrain said board. county, perpetually $150,000

1. selling From of road bonds issuing Sidney Spitzer & contract. Co., terms of a certain pursuant

2. from levying special To restrain board perpetually said which, .said when added to polls county, taxable m general necessary county for State and would purposes, 66 property, cents the hundred dollars valuation of 2/3 each taxable poll.

3. from That said restrained perpetually appropriating board county raised by general necessary funds taxation bonds, if payment of the of said issued. principal or interest 4. That said performing board be restrained perpetually Co., board contract with & which the undertook Sidney Spitzer taxation, to general derived from pledge county, the revenues of said of bonds. and interest said principal payment 5. with 'contracting That said board be restrained from perpetually of county of commissioners said & Co. to bind future Spitzer boards and the said polls taxes levy special continue to, above referred in excess that authorized the bond act county, V the Constitution. construed connection act Alexander good 1915 roads General Assembly passed of which the commis- (ch. Local terms Laws), by Pub. County limitations contained the restrictions and under county, sioners of tp $150,000 act, of road bonds and sell were authorized issue said as follows: restrictions are county. These of the bonds authorized 1 of “That none provides; Section the act sale, of, exchange, hypothecation, disposed act shall either by face value.” than their otherwise, price a less board among things: “The other 17 of the act provides, Section sale, times, at such time or shall offer commissioners FAIR TERM, C.J Commissioheks. such number said as may bonds be determined tbe roads good . . . and tbe proceeds commission sale bonds shall said delivered tbe treasurer of county.” tbe Section of tbe act creates good tbe county, roads commission tbe be composed declares of tbe board of commissioners and tbe which, board of education of tbe when county, organized, shall tbe take office, oath of etc. Other tbe sections of act tbe places supervision and control of.the construction and roads repair tbe bands entirely of this commission.

Section 1 of act tbe also that: commis- “Tbe said board of provides sioners may (of divide-tbe said issue into three series.” bonds)

Section “In tbe act order to provides: interest of said pay bonds, a create fund for sinking maturity said bonds at taking up . . . of tbe board commissioners of Alexander . . . County shall annually taxes, of compute levy, -the at the time other levying county a sufficient tax on all all real polls, estate and personal property . . always . observing tbe constitutional between tbe taxes Provided, on tbe property and taxes on tbei tbe there shall not poll: in time levied county tbe of Alexander for tbe of road a improvement greater . than 33 cents on tbe hun- ... 1/3 dred $1 dollars valuation of and on each poll.” property The act provides also that said bonds not be issued until author- ized vote tbe by majority qualified voters of tbe at an county elec- tion to be called held and for that purpose. aforesaid,

At an election called and held for tbe purpose majority qualified voters of tbe voted in favor tbe county bond issue. Thereafter, commissioners, tbe board of advertised April, $50,000 for per tbe sale of said bonds three series of series. for having bonds,

No bids been offered such satisfactory the said thereafter, November, advertisement, board without on 1 entered Co., into contract with & tbe Sidney Spitzer they terms which series, undertook in seven and accept payment to sell said bonds $5,000 in thereof cash and seventeen certificates of Ameri- deposit tbe due Wilmington, can National Bank from three to nineteen and cent interest. thereafter, bearing per months provided upon This contract “is based tbe legality of tbe of said bonds and tbe a tax issuing right under tbe act upon . . are issued . and that tbe terms they of this sale be ' provisions accordance with the said act.” issued, tbe order theretofore restraining His Honor dissolved and- plaintiffs appealed. Payne plaintiffs. & Cansler A. Cl. and Gansler for Turner, Klutz, D. Tilleti &. L. Guthrie F. W. defendant. for IN THE SUPREME COURT. $300 and on of the value of

Allen, property The on the poll J. county for ordinary now Alexander county statute has authorized Assembly and the General purposes, $150,000 con- for issue bonds in the sum county to for roads, with statute structing maintaining provision $2, in paying to be used excess of property bonds. and interest of the principal constitutional? Is this statute sustaining aspect in the most favorable presented

The question statute, be issued as the bonds constitutionality roads, necessary expense (Hargrave which is a constructing Assembly, has the General C., 626) ; approval statute conditions under these vote; and it has been ratified by popular exceeding no tax levy by cannot be upheld, statute valid any purpose. can be vital, set- involving all as it does important saying people an act of Assembly, aside of the General ting a tax impose have not the under Constitution necessary even expense. themselves State, the credit of the also have effect important counties, because accord- development future may prevent were there year of the Tax Commission for the ing report ninety- counties in which the tax exceeded then fifty-eight amount, total and the seven in which the tax exceeded counties, including special indebtedness not indebtedness of these $10,196,363.26. counties, districts in levies, supported cannot be issued and unless valid Bonds sold unconstitutional, now us are the and the statute before is not in these being pay taxes invalid which are now collected counties indebtedness, but of the and of the principal people interest if their on themselves additional taxes impose counties/have courthouses, away by jails, are floods their swept roads and or bridges and fire. destroyed homes are If, however, con- arise from proper legitimate these conditions must As was well ion of the we abide result. strue) Collie concurring opinion said Associate Justice Walker 145 have C., “When ordained what people clearly done, we, shall be to exe- judges, to do nothing obey wise cute their will. Whether are particular provisions or is us to determine.” unwise first section

The of the Constitution involved directly section V, shall which follows: General Assembly of Article reads as “The 1916. 423 TEEM, N.C.]

Moose v. capitation tax on male 21 every inhabitant of State over 50 years age under which shall be on each to the tax equal on prop- $300 valued in pash. of the erty commissioners several counties may exempt capitation special cases, poverty account of and infirmity, and the State and county tax combined shall capitation $2 never head.”

Eelated to this section, bearing on its are sections construction, of the article, same following language: Section 2. “The proceeds the State and county shall be applied to the of education purposes and the support the poor, but in year no one than more cent thereof be per appropriated to the latter purpose.”

Section taxes “The levied the commissioners of the several coun- for county ties shall be levied in like manner with the State taxes, and shall never exceed the double of the State for a except special purpose, and with the special approval General Assembly.”

Three contentions are made toas the construction of first of Article Y.

1. That the limitation of $2 on the poll value of applies to all taxes for all purposes, this amount cannot be exceeded on the on property, although the tax bemay levied special purpose and with the special approval Gen- eral Assembly.

2. That the limitation on the absolute and can never be ex- ceeded for any purpose, but that the limitation upon property exceeded for purpose with the special approval of the General Assembly.

3. That the limitation on the on the property applies only to taxes levied for. the ordinary expenses the State and county gov- ernments, and that the limitation on the poll on property may exceeded for a special purpose approval the General Assembly. constructions,

If either of these except last, the statute adopted, because, is invalid its entirety, after directing levy on the tax, it links the two together and makes it impossible sepa- them, rate by providing, “always observing the constitutional equation between the taxes on the property and the taxes on the poll.” arriving conclusion,

In subject at a correct with in being dealt (taxation") the Constitution and the nature and purpose of the Consti- tution itself may be considered. power

“The to tax anis attribute of sovereignty so vital and so neces- sary to the existence of a State that it cannot be held to have been for- THE SUPREME COURT. IN

Moose v. Commissioners. obviously where tbe subject except policy to any particular bidden as or is clearly expressed.” to our sense most justice commends itself 363. Pullen v. and their essential taxing people

“The power exercised government, may 'legitimately very existence extent to which to which it is the utmost objects applicable, against it. only security the Government choose to The may carry government abuse of this is found in the structure of itself. power In a tax the acts its constituents. This is imposing Legislature in general oppressive a sufficient erroneous and taxa- security against State, therefore, tion. give right of a to their Government people and their taxing property; exigencies gov- themselves as the limited, ernment limits to exercise they cannot prescribe right, resting confidently legislator, the interest of guard the influence of the constituents over their representatives, Wheat., against Maryland, them McCulloch v. 4th its abuse.” Of course, this to the that the principle subject qualification cannot be exercised when in the but it prohibited Constitution; serves showing power, belongs legislative branch, State, is essential to the existence of the and that its exercise the Legislature as the Constitution limits supreme, except its power. constitution,

We find this scheme of taxation in a and while we would not subscribe doctrine of that “constitutions Napoleon ought to obscure,” nature, be short and constitution is deals permanent future, with and as its framers cannot foresee con- anticipate State, ditions that arise in the may growth and development deals largely general and not details. principles

“A statute, constitution, unlike is intended not to' merely meet exist conditions, ing govern but to the future. It has been said that the term ‘constitution’ an implies instrument of -a permanent nature. Since it is recognized that its framers could not conditions which anticipate might thereafter Nation, arise progress could not establish all law which from time to time might be necessary conform changing to -the conditions of a as- a rule a con community, details, stitution does deal in enunciates the general principles and general directions which are intended to to all new apply facts may come and which being, brought general into within these principles or directions. It has been said that it would have been which, rules, unwise attempt provide, by exigencies immutable all, if foreseen at must have been dimly, seen and which can be best occur, provided for as and that it would deprived the Legis 425 1916. FALL TEEM, N. C.] v. CosvímissioNers. reason, its to .exercise experience, avail itself of lature of tbe to capacity L., 6 R. 16. to circumstances.” C. legislation and to accommodate its come, and ages ap- “A is framed for to to designed constitution human can it.” proach immortality nearly as institutions approach Wheat., Cohens v. Virginia, J.,

Story, of speaking of the Constitution the United Martin States Hunter, Wheat., uses which is to all language applicable con- stitutions. Lie says: “The constitution deals in unavoidably general It language. did not of suit the purpose people, framing liberties, great charter of our to for minute its provide of specifications powers, toor declare the means those car- powers which should ried into execution. It was foreseen this would be a perilous difficult, if not an impracticable, task. in- The instrument was not tended to provide of a merely exigencies years, few but was to endure through a long ages, the events of which were lapse locked up in the inscrutable of Providence. could not be foreseen what new changes and power modifications of might indispensable to effectuate the general objects charter; and restrictions and which, specifications at the seem in the present, might salutary, might, end, prove the overthrow of system itself. Hence its powers terms, expressed general leaving Legislature, from time to time, adopt to own legitimate its means to effectuate to objects, and model mold and the exercise its as its powers own wisdom and public interests should require.”

If, taxation, therefore, the scheme necessary to existence State, provided for in if the Constitution is per- future, manent in its and deals nature with the is to deal details, and not in is it general principles not the natural and reason- able conclusion that the framers the Constitution were only intend- place ing power limitations the exercise of taxation as to those expenses government they which foresee and reasonably could anticipate expenses not as to ex- ordinary extraordinary —the —and penses time far purposes arising time beyond human vision and foresight? form a

They might reasonable estimate of the ordinary expenses the Government for fix a willing the future maximum taxation for would have been purpose, rash indeed limited deal posterity their and emer- exigencies gencies, State, in the of a which they arise life could not con- imagine. ceive or This, us, has as it been the construction placed seems on this sec- applies only ordinary tion the Constitution —that it expenses THE SUPEEME COUET. IN

Moose v. C6mmissionebs. Legisla- government special purpose by and to those for — tive, Executive, people. and Judicial and Departments, the, statutes authorizing hundreds of Legislative enacting By in excess of on and property for general purposes polls of taxes these and collecting expending the Executive limitation; by the true meaning this to be declaring the Judicial taxes; by instances many for the taxes in voting section; people and and paying them. de- and to the the Constitution language turn to the

Let us now the con- is sustained that how far statement and see cided cases judicial definitely settled Constitution has been struction of the decision. State and “the 2 tax is referred the poll

In and sections the same con- tax,” must receive language and this county capitation that the tax 1 it is declared In section sections. struction both $300” valued at and property each to the on “shall be equal $2 exceed on the never tax shall county capitation and that “the State of the State and head,” 2, “The proceeds section in. and the education be capitation applied shall 2, “shall in section “shall he applied,” words The of the poor.” exceed,” imperative, are equally in section “shall never equal” be under section a special $2 exceed if tax cannot the poll under to a special purpose, applied it be any part neither can tax. property than the it be less greater can section nor maintained taxation be equation establishes the The first section it must to all taxes applies the section poll, between property when taxes disregarded be and cannot maintained in all cases principles and it declares also purpose; levied for a special of the in the first part and the on property limitation of taxation conclud- both in the limitation on amount section and fixes the it cannot to all taxes if this limitation sentence; and ing applies special purpose. exceeded for a poll. limitation applies that the show authorities this section the intent of argument to admit plain

“It too and the between the invariable proportion was to establish $2 on the so poll, limited to former is that as the said This was valuation of property.” $300 $2 latter Constitu which framed the Rodman, Convention J., a member Holden, C., 427. 63 N. in R. R. v. tion. things: two commands This that on valuation always equal

“1. That the of taxation. equation called the been This has property. 1916. TERM, N.C.]

Moose v. Commissioners.- “2. That and county tax shall not $2. This fixes the limit of taxation polls, consequently property.

“These two directions are equally definite are in positive; they no wise inconsistent with each other; it is has impossible one more favor or than the sanctity other because comes merely earlier or later the sentence; must be equally binding on the Legislature.” Rodman, J., Weith, Winslow v. 432. C., that,

“It well settled expenses ordinary government, both State and county, the first section of Article V of the Constitution places the limit of taxation and preserves the between the capitation the property tax —the tax never to exceed and the tax upon property valued at to be confined within the same limit.” Board Education v. It has not only been held that the limitation is on property poll, but also that property is the standard for ascertaining amount of poll Wood, tax. Kit C., chin v. 154 N. 565.

If, therefore, these sections refer to taxes levied for all it purposes, that follows the equation of taxation and the limitation upon property maintained, and the must always be tax can never applied purposes other than education and the of the- support poor; and that if the sections deal with for ordinary- taxation expenses of the State and and not county, special those purposes, there is no limitation this power of the General in- Assembly of taxes on authorizing and the pur- special poses, that of except submitting question to vote of the people not for necessary expenses. sustain authorities the latter view by stating clearly definitely 1 to taxation for applies only sus- ordinary expenses, by special equa- purposes taining levies for which did not maintain the limitation,

tion and exceeded the and by declaring legal the applica- tion of the tax to special purposes. C., Comrs., Merrimon, J.,

In 248, Jones v. 107 N. G. after discussing- several sections says: of the “We are therefore equation tha1 and limitation of established taxation Consti Y, (Art. tution applies only ordinary sec. to taxes levied 1) purposes language this counties”; the State quoted Hoke, J., Comrs., C., Perry v. 148 N. approved 370, Parker, Clark, J., Wingate C., v. 136 N. C. says, citing- In after solely section 1 of Y: “It is clear that" this section to- applies taxation,” quotes and he then county approval State and Comrs., supra, follows: “Rut it is settled decisions many v. Jones V, does not establish an exclusive- (Art. 1) Court that sec. 428 THE IN SUPREME COURT.

Moose v. Commissioners. system or scheme of and to applicable taxation observed all cases that, and for all purposes; on the contrary, applies only to the rev- enue and taxation necessary ordinary purposes the”State and the several counties thereof.” Comrs., C., 182, Walker, J.,

In Collie 145 N. in his concurring general couráe, opinion: fixed,,of “The limit of taxation is at 2/3 indicated, cents value of as I property, have already provision regard equation, and the maximum of the poll $2 on which is its true value cash. Const., Art. sec. 1. All provisions the above were intended evidently to taxes laid for apply general county purposes.”

The decisions are clear and equally definite establishing and limitation of principle taxation apply only levied for ordinary taxes have no expenses, application to taxes levied for special taxes purpose, levied for special pur- poses applied to that and not may to education and support of the poor. Comrs., C., Comrs.,

The case R. R. v. 148 N. and R. R. v. C., decide that the unequivocally equation need be ob served when the tax is for a and Board Education purpose; special Moore, C., 432, N. and Crocker v. equally positive that a holding part be applied and not to and the education poor. In Clark, J., the last case answering C. a constitutional objection the statute then “In being considered, says: that the act applies part tax to use of the roads in violation public Y, Constitution,’ 2, Art. sec. which appropriates the State and poll tax county the and ‘to of education the poor.’ provision that to the taxation for applies levy general, But. Comrs., not special purposes. C., Board Education v. 310.” 137 N. The case on the leading power to exceed the limitation ‘property and for special the v. purposes Herring Dixon, C., 122 422, N. in which the present Justice not a valuable only gives analysis Chief section 1 of Constitution, Y of Article the he also answers specifi cally objection the the tax on the property poll cannot the exceed as follows: however, plaintiff,

“2. The further that the levy contends is uncon- stitutional because when this is added special levy to the the levy by State and the ordinary county levy, $2 the total exceeds on the 66 $100 cents however, on the value of property. This au- 2/3 6, Y, thorized the Art. sec. the since has special ap- proval of General the Assembly special purpose, TEEM, N. 1916. 429 O.] Moose v. Commissioners.

raising funds which the can the roads and county put bridges better condition within the limitation than could be done constitutional Comrs., Groom, upon v. 64 N. v. C., 244; taxation. Brodnax Williams Comrs., Comrs., 119 v. C., C., 154; N. v. 89 N. Halcombe 520; Evans C., 89 N. the Legislature power confers (to for a to authorize a act and county by special special purpose As double the State tax.’ the State tax is would have cents, this empowered the to authorize far Legislature county beyond the the go to which point reaches, this tax the and, greater includes the le=s, authorizes this levy, which is well within that limit, though exceeding limitation cents to $100'and poll.” 66% If law, this is the it answers objection of the every plaintiffs us, statute before it sustains on the levy prop- because roads, “though limitation of on the exceeding the erh/ for 66% $2 on the poll”; and this point was a decided not a dictum Connor, appears J., Comrs., C., R. v.R. C., Dixon, where he “In says: v. N. Herring question presented and decided a tax working was whether the public was for roads purpose for which the Legislature author .could ize the levy beyond the limitation.” and, case never

The has been questioned on the it has been contrary, Court, twelve decisions of Hargrave annroved this v. notably, Comrs., 168 C., 627, N. where Dixon, after citing Herring and other decisions, Clark, J.,C. of no says: “We know reason correctness of these decisions.”

Following the case Dixon is Tate v. Herring 812. The facts in case are that the taxes on reached had Haywood County, constitutional limit and under this condition the General an act the com Assembly passed requiring missioners an additional and on property to be in building maintaining used roads and providing act, constitutional at all “the be observed times.” commissioners refused to levy taxes, ground that the unconstitutional, statute was instituted to the action was compel them to do byso writ mandamus. held, Ciarle, J., writing

This C. that the statute opinion, limitation did constitutional; apply, constitutional of the taxes. compelling and directed the mandamus issue to be ob- required equation Note the statute taxation served, that, valid if therefore, the tax on could not be the Court mandamus invalid, on and that ordered the tax was poll and on in property, issue of a tax on compel levy poll IN THE SUPREME COURT.. Moose v. limitation, excess of tbe constitutional for constructing tbe purpose roads. maintaining (and If tbis case was decided it been more correctly approved bas Comrs., tban and in v. 168 N. tbe times, Hargrave C., twenty Court, cases, after it and other “We know of reason citing says: decisions”), tbe correctness of those it settles tbe constitu- us, statute because in both tbe taxes are on tbe tionality tbe before limitation, and on tbe taxes both in excess of tbe property, same, and tbe same levying safeguards tbe tbe taxes tbe both, in have a vote of tbe tax- except approval by are around tbis: we themselves, payers in was absent tbe Tate case. Comrs., Moore, C., 432, In Crocker v. 140 N. Tate v. approving

Clark, J., levy of says: language authorizing C. “The of tbe act tbe special a tax for these roads is almost identical with that sustained ibid., Comrs., Dixon, Tbe Tate 812. C., 420, v. Herring can tbe limita Legislature authorize constitutional tion for tbe roads is a necessary purposes, working necessary pur pose.” declared, approves tbe but tbe decision only principle

Tbis not also facts, on tbe tbe of tbe two “is almost says language because be statutes identical.” Comrs., C., 220, contrary in R. R. v. 148 N. expressions There are favor, view, was case and some not decided tbis it spécial and tbe purposes, point

that tbe tax could not exceed decided, in that case nor tbe could not been because neither case same name in tbe volume did tbe statute subsequent by tbe same tax. levy before tbe Court authorize tbe contrary, Mecklenburg levy On tbe in tbe case tbe statute forbade tbe a poll tax in and in tbe Buncombe case authority excess only and tbe property,” conferred to tbe taxes on “taxable levy of taxation questions raised and decided whether tbe were limitation in excess of tbe levying must be observed taxes and whether could exceed tbe limitation. purposes, tbe levy cases, attempt there was no As no levied in these so, how not authorize tbe do and as the statute did limitation tbe poll can then that tbe be said that tbe Court decided ap- with tbe special could not be exceeded special purpose proval of Assembly? tbe General

If, however, decided, been bad tbe decision is so greatly weakened destroyed not ease of subsequent Perry in which it was held to be valid to tax in of tbe excess constitutional limitation a school district. It did appear case school district did not have a four school, that tbe months and the N. FAIL TEEM, C.]

Moose v. section of Comrs., C., 170, tbe on Constitution relied in Collie v. 145 N. decision, not in support was invoked of tbe wbicb was limited to schools. Connor, Tbis appears clearly from concurring tbe opinion J., 530: says wbo page “Fortunately, goes tbis case tbe tbe public school; of tbe in tbe Constitu- nothing there tion, as we wbicb it, by such be confined to tbis interpret may taxation purpose.” Moke, Court, Justice writing tbe tbe from Jones opinion quotes Comrs., supra, equation that “Tbe and limitation taxation estab V,

lished by tbe Constitution taxes (Art. 1) applies sec. levied only for the of tbe and ordinary purposes county,” finally State rests decision of tbe ground cutting county tbe tbe off a part into a district it is made a and as quasi municipal corporation, such falls VTI, under Art. sec. not bound tbe by tbe limitation on poll. constitutional tbe

It is therefore decided that case that a tax in excess of tbe district, limitation levied in a and tbe may be and collected school Connor, J., as shown not confined principle, opinion districts, such school but extends to districts as roads. so, Comrs.,

If and a cannot R. R. v. we county do so under have tbe situation under having tbe Constitution of part county authority county collect taxes when tbe whole is forbidden to do so for tbe same and a further result is purpose; that tbe General Assem them, into bly county incorporate divide a the two districts and and authorize tax on the valid excess of tbe constitutional limitation in each when it in tbe cannot direct it permit as a whole tbe same purpose. C., These R. three cases of R. v. Comrs. 148 N. Mecklenburg, 220; Buncombe, 248;

R. R. v. Perry Comrs. C., 521, decided, and are in tbe correctly harmony were wit, principle which underlies tbis that tbe opinion, 1, of limitation of tbe Con prescribed by taxation apply ordinary expenses stitution to taxes for tbe of tbe county government, and that tbe of taxes for special purposes is committed by tbe Constitution to the discretion of tbe General Assent taxes, bly, which" such tbe tbe may; limitation on may levy or on tbe tax tbe property, property, prop alone, erty tbe observing equation, subject qualification without to tbe for a tbe tax is not must be submitted to a necessary expense of the people. vote opinions by tbe first two of cases were written same tbe these Questions same,

judye, and as tbe were tbe tbe leading in Mecklenburg written tbe case. THE COURT. IN SUPREME

Moose v. Commissioners. action restrain collection brought Tbe tbe of certain taxes on limitation, ground that a correspond- excess tbe levied, or, words, tax in other ing poll bad not been because tbe equa- tion of taxation had not been observed. under a statute replied acting

Tbe commissioners that were that: “Tbe of taxation in tbe provided equation prescribed ordinary taxation levied for tbe applies only purposes Constitution levied, tax county, poll except tbe State and shall herein- $2 after combined; in excess of for State and provided, county purposes special all levy acts or tbe of taxes for levying authorizing pur- poses in$2 which contain á tax excess of tbe authority levy poll for or modified so as to re- aggregate hereby repealed all strict and for State and provide special tbe tax poll that $2.” taxes combined never exceed decision, question for therefore, tbe case was Meclclenburg taxation, tbe equation while tbe before us is as to question

limitation taxation. It was whether tbe commissioners could more than levy poll, so, they levy tbe authorize them to do but could Legislature tbe a tax property Legis- and refuse to tax on tbe when the levy poll, lature bad said no tax should be levied? poll was, then,

Tbe before tbe Has tbe General single inquiry, power tbe a tax on for a Assembly levy property tbe to authorize special tbe and at time com- purpose limitation, in excess of tbe same an- mand that no tax should be levied? and was corresponding swered, while tbe bold, affirmative, is, as we in the now Has tbe inquiry General tbe Assembly levy authorize of a tax a special purpose on ? tbe and on excess of tbe limitation property judge

Tbe doubt tbe learned then for tbe Court expressed by writing was whether tbe first of bad pre these been answered tbe questions Court, second, vious decisions and not as to tbe makes many this clear as be He proceeds with tbe discussion. reviews of tbe Dixon, cases, says: “In among things C., other v. Herring 420, tbe only question and decided was whether tax presented working Legis roads was for a for which.the public special purpose tbe qould of a levy beyond lature authorize tbe tbe limitation. tbe question was because equation presented, No Comrs., 122 812.” Tbe held in N. was levied. same is Tate clearer commits

Language unequivocal, could not be or more and it Court, Concurred, all tbe having tbe members tbe state- positive Dixon ment that tbe decided in question presented Herring v. Comrs. whether a tax for roads was working public Tate TERM, 0.] Moose v. Commissioners. which the Legislature could authorize the limitation; beyond the is the

only question now before us.

He concluded the two cases cited were not for the authority position the Court taxation, was then considering- as to the equation saying: “No question presented because was levied.”

He was evidently fearful the midst of elaborate discussion of a vexed he case, and to might outside of the say something Court, avoid so, binding the he did he precaution took before conclusion of his to state He thei discussion. precise point said: “We decide the commissioners acted Mecklenburg accordance with the statute in failing more than the poll, and that the statute is a valid exercise of power by Legislature. This conclusion renders unnecessary discuss much vexed ques- tion as is or to what is a within not the special purpose meaning section Y.” Article words,

In other he says it was decided that the per- commissioners formed their in $2 duty failing more than on the because poll, Legislature the had said in the act Court before the that no $2 in excess of should be levied for ordinary expenses the State and special was a purposes, valid that this exercise of legislative power, because as to these taxes it was not to ob- necessary serve taxation, the and he adds: “This conclusion renders it discuss vexed as to unnecessary question the what is is not much or special a within purpose meaning Y,” the of section Article which nowwe have to decide.

If, therefore, are there in limi- expressions opinion the to the relating taxation, tation decisis, they do not come within the rule of stare which has for its in the uniformity, certainty, stability law.

“The doctrine of stare such as are contemplates only points decisis in involved and determined and not what actually case, is said the outside of the record or on not in- judge necessarily points dicta, volved therein. Such obiter do expressions, being not become maxim precedents. It not to be disregarded, general expres- is sions in are taken in connection with case in every opinion to be case, If may which are used. expressions they go beyond those in a ought subsequent not to control respected, judgment be suit is decision. The reason very point presented where the The before Court is investi- question actually maxim is obvious. in full Other gated with and considered its extent. principles care 28—172 THE IN SUPREME COURT.

Moose v. to the which illustrate are considered their relation may serve to it decided, all other seldom bearing but their cases is possible case every reasonably cannot be completely investigated. expected 'will be word, judicial or sentence contained irt so phrase, opinion perfect may limitation that complete comprehension disregard it from its employed by wresting surroundings, be improperly its of fa'cts to which it is be ing change sought context accomplish short of an infinite mind could applied, nothing possibly Therefore, decided, which such a cases have been applying result. to and limited what been said should confined when relied expressions case under consideration facts where the facts made, were be extended cases should not followed, different. rule much When this essentially arise as the effect misapprehension and that often uncertainty L., decision will 7 R. C. 1000, 3, avoided.” practically Comrs., R. R. v. five after Perry case decided months Comrs., presented limitation taxation of-the school-tax district. cents

A of 20 cents on the value of levied, and the limitation was in excess constitutional tax, to subject action was plaintiff, who brought by unconstitutional; restrain collection ground conflict legal, declared the tax direct but the Court means, contended, if it now with the R. R. decision taxes, V, and that applies to all of the Constitution can any purpose. never taxes, it prohibition If in the to all applies Constitution permit and to subdivisions deny little avail it to comities is counties, and towns to it at and this the disregard pleasure; cities, on R. R. condition exist if we construction adopt placed that will the Comrs. v. Comrs. stands. Perry v. the by plaintiffs in v. Comrs. first Perry who wrote the judge opinion

The learned cases, and Buncombe and other Mecklenburg discusses cases from the comment, and then in which all concurred: judges this the follows “True, the of the of question equation on directly these decisions Y, ruling taxation reason the on every established by in full force on of subject the equation the bears tax, with restriction the additional and on the amount in is confined express conclusive that such restriction terms to reason ” tax.’ What mean capitation except ‘State can this county the Mecklenburg and Buncombe question for decision in the cases that the must be in levying of taxation taxes whether the observed equation the holding reason” for that special purposes, “every that 1916. TERM, N.O.]

Moose v. Commissioners. cases, in with full as was done those “bears equation apply, did not tax, the poll of the restriction the amount of subject force” on the that restriction with “additional and conclusive reason such the ” express is and county terms confined to the ‘State tax.’ Again, gives Justice Soke reason which induced the framers of the Constitution restrict the limitation for ordinary expenses to taxes that government. says: proved, He as the result has “Anticipating, general State and reach the very generally taxation would county limit the framers the Constitution did not deem it well to of- place an on all local whose arbitrary restriction efforts communities enterprise and financial condition a might suggest justify greater amount of taxation than And general followed law. it was no doubt further restriction section considered that contained forbidding unusual when except sanctioned qualified given operate voters of a would majority district, against extravagant wholesome cheek taxation expendi- excessive ture. Certain it that, indicated, of the restraints exception the matter is not further referred affected but is entirely legislative will. As taxation within these special pr districts, it disregard is theirs to observe established equation Article V in to State reference taxes and or abide exceed lirp.it by the established in said article in reference taxation.” general cases, therefore,

These being position instead conflict with the defendant, it, in that: 1. It is decided in it R. R. Comrs. that is not to observe necessary of taxation in taxes for levying and it purposes, is said in Perry stronger Comrs. that there is reason holding that the limitation does not taxes. apply to such The cases v. Dixon and Tate v. Herring recognized Comrs. are authority, and that they decide that the limitation may roads, be exceeded for special purpose.

3. It held v. Comrs. Perry exceed sub division county, notwithstanding constitutional 'provision and county capitation the State tax shall never $2.

"We are therefore statute is constitutional and within the Assembly the General to authorize a taxes special purposes and on excess the limitation in Article prescribed of the Constitu- tion, and that as such taxes is not compelled maintain the equation between and property poll. gives

The construction force and vitality language in section V, 6 of Article for a “except special purpose and with the special COURT. 436 IN THE SUPREME v. wbicb otherwise would have approval Assembly,” General tbe can section means that counties practical operation, because for do so ordinary may State tax but purposes, never exceed double the limitation, however, section there for within the 1, special purposes, except of 1868 was adopted, the Constitution has been no time since amount, if levied year, tax and double one when the State that possibly limitation, would not exceed counties, ordinary expenses, for special purposes. leaving nothing least Constitution at the men wrote the must be assumed that who still, session of and the first existing;

knew then of conditions $1.05 tax of after a State adoption General Assembly 1868-9, (Laws was levied 35 the value property cents “This tax significant says: ch. and it that the statute 108), is the Gen- levied taxes as authorized special in addition to such eral Assembly.” V, 6 Article article, section

Under this effect to giving ordinary expenses, tax for could not the State levy counties double could be levied of section no taxes within the limitation special Assembly thought seem the General it would purposes, although had this tO'be done. authority authorize maintained,

If in provided of these can be positions none valid, statute cities towns are embraced as- counties well as Constitution, in VII, and it was so held in section Comrs., in v. Pritchard there article of within that polls roads; property corporations limitation on the the Constitution Assembly, as was held when so to do General authorized thei eases. Perry Comrs., supra, other town, or is, other city, language ^county, this section “No shall,” for the etc., only authority and the corporation municipal come districts special school special taxes for schools corporations.” under “municipal the designation limitation If, therefore, may exceed the corporation municipal Constitution, as under this section ? a county do supra, why may held so Perry case, J., reviewing authorities: Hoke, after Perry said in, question (the the tax “From it is clear these authorities county purposes) levied State and already cents in excess of V, of Article Constitu- within restriction is not aby for a tion; definite imposed the same under district, quasi corporation taxing coming public subject only VII of the provisions of Article article, notably, contained limitations and restrictions N. 437 TERM, 0.] v. 7, town, section that no or other county, city, corporation municipal faith, credit, debt, shall contract loan any or its nor shall pledge levied for any same, or collected officers the the by except thereof, unless necessary expenses by majority vote the 9, qualified therein; and of all voters section effect that taxes levied shall be uniform and In ad valorem. the construction aid of place upon ive provision bearing Constitution this question, good reasons could suggested the distinction the two classes of taxation. as the result has Anticipating, proved, general State and county taxation would reach the limit very generally the framers of the Constitution not deem it well to did an place restriction on all local arbitrary effort communities enter- whose prises might suggest financial condition justify greater amount of taxation than that allowed And by general law. it was doubt no further considered that the restriction contained in section forbid- ding unusual when except by sanctioned majority district, of the qualified voters of a would given operate wholesome against check excessive taxation or Certain extravagant expenditure. that, indicated, it is with the of the restraints exception matter is not further affected entirely is referred ' legislative will. As taxation within districts, these special disregard theirs observe or established Article Y equation taxes, in reference to and to exceed abide limit established in said article in general reference to taxation.”

Counties, cities, towns, and corporations are mentioned municipal in the section; the same taxes is each; conferred on authority municipal corporation may the limitation on the poll the same power cannot property, be denied the counties. would all seem that of the authorities reconciled ground that Article Y of provides the Constitution for the ordi- therefrom, nary expenses county, the State and as to excepting counties, special purposes, and that Article YII all the provides expenses municipal governments, counties with the limita- including special tion that Assembly. taxes must General approval Comrs., The learned who R. R. judge wrote the 148 C., 220, conclusion, N. seems to have reached also that levied, 1 do not apply limitation section taxes equation he the valuable work the Constitution says purposes, V, Cheshire, commenting sec page Connor and 1: tion this, on taxation have application limitation “This nor under Article special purpose levied

to taxes THE SUPREME- COURT. IN

Moose v. Commissioners. YII, under Article assumed obligation meet necessary to to taxes Comrs., C., 310; Jones Education v. Board section 7. Comrs., 148 220.” C.,N. R. R. v. 248; N. C., conclusion, in for us to any it case if was proper to this coming In for counsel the plea plain- of eloquent the earnest and by be' influenced liable and is only of no property the man who owns tiffs in behalf is when, case, in this there tax, as for we could not consider poll in this either of is plaintiffs the in the complaint no allegation collec- of that the class, is complained when the grievance the and per- the title of real cast cloud tax “would tion of the taxpayers and the other plaintiffs these now owned sonal in county.” said tax is con- man is liable poll that the who

It is probable roads public from work on the tent, days will relieved six he be as in system working of the new roads under of payment $1 County. Alexander roads Alexander all County of in system working

Under the old 45 were males of liable to work ages able-bodied between year 2725), in each sec. but this been days (Rev., on the roads six has $1 than has system, greater and a tax not superseded by new days for six labor. been substituted any there fear that additional restrictions or burdens

Nor need right suffrage. placed will be is in right carefully guarded, This is specifically provided YI, that the tax which voter is section required Article 1,” Y, one Article section pay “prescribed is the is one and which cannot ordinary county, the State ex- expenses $2. ceed Comrs., supra, Hoke, was held in J.,

This “It Perry where says: suggested we give construction to-the Constitution will certain instances it possible, tax, make an exorbitant vote, to deprive many citizens within a right district of Constitution, reason this no provision person ‘That shall allowed vote unless have his poll he shall tax for the paid previous year.’ language YI, But not so. of Article . The section the article to and being relating regulating vote) right suffrage, entitled to provides that one unless he his paid has tax for the year, ‘as previous prescribed by Constitution,’ thus providing payment right tax allowed and Article Y the suffrage established seen, we respect established; and this can never $2.” TERM,

N.C.] tbe disposes principal question This involved tbe appeal. plaintiffs, however, tbat if Tbe insist tbe bond issue tbe taxes valid, tbat tbe contract tbe sale tbe bonds illegal because not, statute, by tbe for tbeir face required value; and as we construe sale, tbe contract of well tbis taken. position is value, statute tbe bonds to requires Tbe be sold at tbeir face under contract tbe purchaser tbe tbe gets drawing bonds at interest .$5,000 5 per cent and therefor pays cash and time certificates of deposit months, eighteen from three to running with interest thereon cent, considered, and when tbe per difference interest is tbis tbe would reduce purchase price $100. a bond of bonds, “In disposing municipalities are frequently prohibited them less than tbe selling ‘at value thereof.’ words par ‘par Tbe value,’ used, when so amean value equal to face of tbe bonds and accrued interest to date of sale. When tbe bonds draw interest from tbeir date, date and disposed are of after tbeir with accrued interest value,’ statute, tbeir attached, face or within tbe ‘par of tbe meaning is tbe sum of tbe principal and tbe accrued interest. purchas- Persons ing tbe bonds tbe municipality bound to take notice of tbe of tbe and a sale of tbe municipality respect, this bonds at less than par absolutely void inter partes, expressly prohibited law. Neither by party to tbe contract bound and it thereby, cannot claim 2 subject of a'valid other.” by either-against tbe Dillon Mun. (5 Ed.), sec. (p. 1400). Corp. Illinois, Wend., 132, In tbe of leading case State Dalafield

tbe facts bar, were similar to tbe facts in strikingly tbe case tbe act under which tbe bonds were stating issued tbat ‘should not fact, sold for less than tbeir value.’ As par a matter purchaser tbe agreed pay par bonds, tbe but was so honoring to do by him, time paying drafts drawn tbe by upon State which time drafts bolding bore interest. In tbat tbis was a provision violation tbe of tbe act above tbe quoted, New York Court said: “But the actual $300,000 sale which is made terms tbe sale gave appellant interest, advantage $283,000 an of 130 days on tbe sale of about cannot, ten I words, months. upon any understanding of tbe consider value, tbis par sale at more than an bad been undis- there guised discount at tbe same rate. ... In giving these double advan- tages Delafield, of credit and gain interest to I see tbat tbe can agents tbeir specific exceeded and limited authority, and in tbe latter beyond assumed risk far ease tbe bounds of since prudence, ordinary alone, it was done on tbe credit of tbe personal purchaser unaccom- panied by-any security.” (Page 225.) COURT. THE SUPREME IN sale of the bonds the terms upon another prevent

This will not statute. valid and that that the bonds are opinion "We are therefore collected, levied and be legally in the statute can named taxes is invalid. the contract of sale Court will be modified Superior order judgment accordance with this opinion. and the between the plaintiffs the costs of the be divided appeal

Let defendant.

Modified and affirmed. J., of the Court I think the exhaustive concurring: BrowN, Justice, that Article Allen demonstrates conclusively between establishing the State only latter, limitation prescribing applies tax and and poll govern- county general purposes taxes levied a special levied for county taxes ments, apply and does Assembly. of the General with the approval Constitution follows from this construction necessarily discretion taxes is within sound- levying exclusively, upon property be levied Assembly, General act consid- under as is the case property, both eration. construction, has to the Con- given been

In my opinion, opinion, cited in the this Court in several cases stitution for the forty whch has in this State past General Assembly every met instrument, meaning purport is not the natural years, mainte- essential to the absolutely construction which is it is that sustaining good and to their system county governments of our nance $2 to that if the faith and credit. It has been held limited $2 $3'00 worth of limited to be likewise must property C., Holden, 63 N. 427. R. R. v. property. Constitution, property express requirement By divorced, be and cannot former together linked are by stated Justice expressly the latter. This be measured Chief Ayer, 120 N. in Russell v. who adds: opinion Clark his in the Constitution of 1868 as a provision guarantee was inserted “This the State that would they oppressed holders of property taxes elected enfran by newly laid representatives inordinate blacks, repre who had small to be taxed whose chised prop excessive taxes might tempted otherwise sentatives erty.” FALL TERM, C.J Commissioneks. $2 on

If limit taxation is tbe same limit must poll, apply tbe If $300 worth this taxes for property. applies special county taxes, well can purposes, general there be no special taxes, and them, provide was idle to General State taxes exhaust the limit. always The members of the evidently Convention foresaw that counties must of need necessity large sums of money the construction of public necessary improvements, courthouses, such as jails, roads, bridges, and and they provided special meet taxes to such emergencies, and did evidently not intend that the equation and limitation should apply them, but that the manner of their levy should be left to the sound discretion of the representatives elected the people to Assembly. the General That is the reason are they "special” termed as distinguished from general taxes.

Relying upon this construction of the two-thirds State, more of the counties of the by legislative authority, have been compelled special taxes order to their current pay expenses. have borrowed They also millions dollars with which they erected jails, courthouses and constructed roads and bridges, other- wise added to the material wealth and prosperity their citizens. Purchasers these in every part bonds of the United States have relied the decisions this Court protect their If investments. repudiate we legislative well settled and judicial this construction and taxes, down strike these special counties of will have to “go business”; out their credit will be ruined of .the State itself impaired. seriously We well may pause before a con- reaching clusion will inevitably such produce disastrous results.' Comrs., C., 220, ease R. R. v. is relied on to support plaintiff. the contention of the There in the some expressions themselves, opinion that, taken by have such tendency, but mere dicta. The in this question decided case was not be presented, that, cause case no tax was levied— exceeded the limitation of worth of The statute property. consideration, then under authorizing instead forbade in express terms. The in that only question decided case is that equation of taxation need not be observed taxes for levying construction legislative of the Constitution directly —a with accord our decision in case. If the need not be observed, ? limitation It is why should the evident from the subsequent Connor, who wrote the in R. R. v. writings Judge In that he concurs of this Court. the Com fully majority mentaries our Constitution he seems that says: propor “It all and limitations here taxation cases placed upon apply tions 442 THE IN SUPREME COURT. CojiiiissioxeRs.

Moose v. taxation, State and county provisions for except (1) the public debt as it existed when deficits, the Constitution adopted, (2) casual invasion, insurrection and taxation (3) county special purposes.” Connor Carolina, and Cheshire on Constitution of North 258. page Comrs.,

The case of v. Perry N. is cited C., 521, by plaintiffs relied In strongly upon by defendants. a my judgment, direct authority sustaining Court in the case under con sideration. It decides that a under quasi-municipal corporation may Article of the Constitution VII, exceed the limitation poll and property “special” taxes for a when the levying has sanction. That section of the Constitution legislative words, town, “county, city, uses the or other municipal corporation,” and declares a county is on a with all other par municipal corpora tions. If under that decision municipal corporation may limitation on a-special not a purpose, why may decisions', do I agreed so? to both of these and see no reason change my opinion.

I “striking that this Court is out two emphatically deny provisions Constitution,” from the amending following them. We but construction placed twenty the Constitution this Court nearly Dixon, C., 420, years 122 N. ago in Tate v. Herring N. in which C., clearly distinctly it was held a unani mous Court that the limitation on the can be exceeded for a with the sanction and that special purpose Legislature, construction of roads public We are but purpose.. following Moore, C., cases, Crocker citing the above named V, holding notwithstanding section which appropriates and county tax to the of education and poor, to the construction part applied of roads with Legislature, as that section of the permission Constitution “special” does not to a tax levied for such a apply purpose. precedents These have been cited and this Court approved by edition, in over a dozen cases cited the annotated opinions in the three cases above cited not only expressed Court, well judgment considered unanimous were written profound jurist Justice Clark. Because their learned as Chief his author in recent seen fit views years change personal has I reason those cases be overruled. to follow the why prefer should former reasoning opinions and' of his rather than strong convincing utterance. Judicial should set aside. lightly his recent decisions of every with the ebb and flow change should be stable and not They tide. TEEM,

N. 0.]

Moose Commissioners. v. of stare is Tbe doctrine decisis especially applicable judg- those of tbe Court tbat tbe expound give ments Constitution and a construc- tion it bas to wbicb been acted tbe State its counties years. many Sucb judgments should not be reversed except overruling necessity.

It in tbe surprising, Court, view of decisions this tbat tbe should be majority gravely charged an attempt to amend tbe State Constitution by judicial decision so as to divert special from educational and purposes charitable to tbe construction public roads. result, If Constitution tbe needed amending accomplish tbat bas been tbe done decisions wbicb this four present members concurred. In 1904, Education v. Board decided and concurred Walker, in by tbe Justice and Mr. Justice it was decided in an Chief Mr. Connor “Poll

opinion by Justice tbat taxes collected under special act of General Assembly tbe can not be highways diverted schools support and tbe of tbe poor.” Moore, 1906,

In supra, Court, Crocker v. decided aby unanimous it, of whose are four members still was held tbat “The objection to tbe of tbe act of constitutionality tbat tbe chapter act applies of tbe part county tax to tbe use of public, tbe roads of tbe violation wbicb appropriates State and tbe tbe education poor, sustained, tbat tbe cannot provision applies tbe of taxes for general, purposes.”

If these decisions do not sustain the conclusion of the majority case, this Court in this then tbe English language bas failed of its purpose. It been said tbat “consistency jewel,” bas and also tbat of weak minds.” I think “hobgoblin it is tbe tbe construction law, organic stability important attri- consistency judicial butes to tbe Govern- tending greatly proper administration tbe State ment. be, will suggested, political agitation tbat about an bring

abolition of Tbat not a matter entirely. for our con- sideration, and have no effect us. sucb threats Tbe wisdom of tax is for themselves. Such bas levying tbe been people immemorial, levied in this from time and no one tbe bas stated more stronger sucb tax than tbe dis- levying lucidly reasons tinguished Ayer, Court. supra. Justice of this Russell Chief earners, artisans, wage There are thousands of others fair have seen fit wages acquire State who earn salaries who Those tbe full property. persons get but little benefit of tbe taxable educational facilities of State and tbe benefits of protection THE IN SUPREME COURT. All blessings our them is a many pay Government. these few annum. per persons small tax of a dollars Those are not raising such taxation. are not a hue and against They cry out crying tax. much They pride too self- against personal the benefits of our Government for and are nothing, to desire respect the,small tax assessed them willing against more than for pay receive. and their children they benefits that be remembered that we not decided General It should special of $2 tax in excess levy poll, purposes. must Assembly of this Court the held that under the decisions simply previous We in certain in- General has the constitutional to do so Assembly $2. sees fit. It need never excess poll stances exclusively. It confine taxation It special county property Representatives is a matter within the sound discretion come from the If directly every years people. they Senators who two them, can trusted to taxes those who elect property oppressive can not also be trusted not to be the tax they levying are and can be poll? They directly responsible people, will of their carry trusted to out the constituents. Alexander by In this case the tax was levied the voters of poll County,

n large poll of whom are liable tax. The same can be majority State, all counties with one or two. excep- said practically tions, for the construction good that have voted taxes tax has public improvements. special poll roads and other not it has been Assembly, been forced on the General but levied by them great who believe benefits accruing the votes those 'citizens improvements. to their roads and other good public right I reason this Court should them that why deprive see no To continuously nearly forty years. have exercised do all in this State. public improvements so will effectually put stop have come to this the several actions that very significant been brought by tax have involving validity else, holders little but pay by property those who but their who down the taxes on endeavoring were to keep tax. between the pleading and reflection its study We have all this case that careful given I conclusion reached importance deserves, believe is not with the but is construc- maj’ority only precedents, accord tion intended should be on it. placed the framers of the Constitution do, If I this an I should hold as I now regarded open question, I feel to. adopt where two. bound permissible, constructions my which in essential to material judgment absolutely prosperity maintenance of the State and to the of its credit. upbuilding 445 TERM, O.]

Moose v. Commissioners. J.,C. Tbe Constitution made dissenting: at Halifax in 1776 Clabk, poll tax, reference to tbe and it unknown in England, was where bad been and, tried distant in- very having tbe caused two past, surrections, bad been soon Even in that which was repealed. country, now, then far more ruled classes by tbe than taxation of the not tolerated.

In tbe Revised Statutes in 1885 tbe cents and was slaves, valorem, levied also upon who were as on not taxed ad as well cents, whites. In tbe Revised Code of tbe tax was and it is current it was history levied because were not largely slaves taxed according to their value as property.

When Constitution tbe of 1868 was adopted was authorized poll tax '$2, up Y, but it was restricted two Art. explicit provisions. 1, provided: sec. “Tbe State and county tax combined shall never section, on tbe bead.” Another Art. sec. pro- vided: “Tbe proceeds tbe State and county capitation shall be applied to tbe of education and poor, no one shall 25 year per more than cent thereof be to tbe appropriated latter purpose.”

Tbe Court has no more than tbe Legislature to strike out those two provisions from tbe Constitution. could not be made They more Tbe explicit. subject whole reviewed this Court thoroughly Comrs., in an C., 220, unanimous R. R. v. opinion, which all t.he reviewed, eases the were point only thfe held that cases, Comrs., one of the Board v. in con previous Education of flict the result then reached. very able exhaustive Connor, opinion, written by (now judge J. the Federal distinguished of the Eastern of District North held that the Carolina), wording “ Constitution, the ‘The State and tax combined shall county capitation $2 never exceed on the head’ is imperative levy prohibits in, sumj any any pv/rpose excess section tax to the of education and the applies purposes support of the it from other poor any adding withdraws purpose,” : (p. 245) again “This cannot arise.” question Comrs., C., 248,

This opinion was R. R. v. 148 N. repeated written the same judge, Ferry C., 521, by Hoke, J. These have never since been till now. questioned decisions Four of concurred in those judges who are still on the opinions Bench. member of There but one the Bench now who was not on time, and if change personnel the Court at that one-fifth reversal the Court authorizes the of these able and thoroughly con constitutional opinions upon grave sidered accordance THE IN SUPREME COURT. [172 . it, express with the o£ the all men language read whatever, can longer placed then reliance no be Court, change, liable to views so become “As variable as the shade By light aspen quivering made.” govern, If are these last precedents opinions three reviewing control, If the Constitution itself subject whole conclusive. is to “The State and tax shall language, county capitation never exceed $2,” proceeds and “The of the State and county capitation shall applied be to the of education purposes support poor,” can admit of plain pledge no other construction than the explicit given therein laborers and means of small men not be taxed for the mere air privilege breathing $2 more than per year, and that applied that sum shall be to no other than “education and the of the poor.” V, It is true that Article does that the provide capitation tax shall cash, $300 to the tax on valued equal property but provision there is no the tax worth shall never $2, exceed and hence the Court has held that repeatedly equation $2, therefore, extends only and, and is when the up observed ceases, exceeds because “can never $2.”

This does not invalidate any bonds heretofore issued in which a capitation authorized, tax has been because the purchasers such bonds are fixed with notice that Constitution forbids the tax in excess can that such tax applied to education and the such poor. The holders of bonds have the right to have the of taxes upon' property payment their bonds, they have interest cannot be applied for such and whenever the purpose; aggregate poll provided for in all the statutes a authorizing or bonds other pur- poses reaches the board of commissioners must stop. They cannot go beyond that figure. discussion,

The the language plain of Constitution is too to admit of and it is of value to criticise or compare previous decisions of this Court. The last three decisions from 148 N. C. quoted above are conclusive. equally gave The to unanimous the the public pledge, explicit Constitution, a.s as that the that the tax should poll never $2, exceed of said, present four the Bench “This concurring: question can never arise.” again

In R. R. v. Comrs. Connor Judge quotes Judge Cooley: “Capitation times, taxes are not resort in modern a common in a only few cases could or and cites from they just politic,” other States showing TEEM, 0.] Cosí missioners.

Moose v. a only poll few States a tax. In in 36 fact, States, England, no tax at all is poll levied, tbe other it cannot $1, exceed and that applied public schools. is California, tax, In one of the States allowed this small poll out, to striking the Constitution, adopted last an.amendment year 125,000 In by majority. our State the and municipal $6, tax combined has reached frequently the of oppressive figure $7, And, 253, $8. Comrs., and even in R. C., as stated R. v. 148 N. is by Taxation, “This criticised Hollander on State points who out that in this State, which 60 of the per cent are paid by taxes persons $500, owning less than the result is small that the taxpayer, he pays 'also of pays double the rate tax nearly larger the payers.” State,

In also, our the amendment in August, ratified provides that every person “before he shall be to entitled vote paid, vote, before first of of May year the the which he day proposes his tax for year.” the As Connor previous Judge forcibly said . R. v. R. at strange “It p. anomaly say the while right vote restricted of a by payment $2,’ which ‘shall never voter for failure disfranchised pay the amount which is left of discretion of General Assembly, Constitution thus guaranteeing every citizen otherwise to vote qualified by tax of paying right by construction the General giving Assembly to increase amount may deem they proper.”

It is true that the roads were worked formerly by conscription unjust labor. This was a most enacted the influence provision, by class, landowning when no could vote for State time one Senators he owned 50 land. The who unless acres of owners used very wheels over the roads little the cost paid making roads, who the side them worked the by while those walked roads those who used them. France, injustice well inefficiency system, as the this Gorvées, were called chief

where one causes great In French Eevolution. State the of civilization progress this and the effective roads as well impossibility getting by system, injustice, as a sense of inherent has universal caused almost adoption taxation; method the roads present working violation in the Constitution justify pledge this does head of the laborer limit increasing beyond the burden binder the the roads pledged guise working taxation the cost of the roads back placing part working of laborer his head excess the constitutional limitation. by taxing the THE. COURT. IN SUPREME the lab- when it pledged cannot be misunderstood Constitution The he laid on his head man small means that no tax should and of orer the and $2, to education applied solely should excess poof. taxation equitable levy a more is towards tendency age The has levied Congress and therefore wealthy, superfluity $4,000 ranging graduated a those under exempting income In per sum 13 cent oil amounts. larger cent on that per small inheritances, maimer on graduated exempting like there is tax estates. graduated has the same adopted The State also policy taxation and inheritances. The justice incomes sense political more distribution age require equitable of this economy heavier tax on most able public burdens those by putting reverse, tax. bear case under an unlimited poll it instead of as is the of this out the Constitution practical The effect decision is to strike against vote of 3 2 of the by a members of this the protection tax and it without limitation what- capitation any excessive thus to leave ever. The effect will be from a sense necessarily precipitate, public California, justice, as in agitation, capitation strike out tax, and will entirely. No can-stand an unlimited people tolerate it when is a constitutional pledge previous there solemn tax can never exceed unanimous decisions of this Court that $2, than poor. and shall he to no other education and the applied purpose The entitled holders these bonds are their principal paid interest but county, cannot tax the of those who its wealth who polls protected, create should Constitution, tax for other according any poll pur- to the from paying poses, and therein larger specified. amount than any construed,

The General must be to have understood the Assembly Constitution and to conform to it. In have intended to Jones taxa- limitation of it was held that “The levied State and apply ordinary tion taxes for the county.” that the equa- has been sustained ever since. means This tion must for ordinary purposes, be observed limitation up when can exceed the levied special purpose but, in language limitation “The property, is, no $2” tax can never exceed capitation —that as to purpose is no such limitation occasion. There taxation of have no interest The bondholders property. any part in no event can exceeding Con-

'applied to education poor. other than it. stitution forbids TERM, O.J

Moose v. us, Section 4 act “a special of tbe before tax all providing polls, real . . . always estate personal property observing constitutional between the on the taxes the taxes property and poll,” on the act, construed, is a it constitutional but must be within the terms of the mean that all the taxes levied on act, polls, that including provided not exceed poll, nor applied other than any education and the poor. construed, Thus conforms the Constitution to all our deci reviewed, sions as v. was so held Court in R. R. by unanimous Comrs., Comrs., ib., Comrs., R. R. v. 220; 248; and Perry ib., 521.

The Constitution is so and all have plain explicit our authorities been so reviewed summed clearly in those that it is up simply' cases a waste of time and a of old "threshing over straw” to go over review them again. letter The Constitution is the plain guide by go, we must placing and that cannot our changed by precedents different construction from what in the has been done three in which this matter already fully carefully cases has been discussed and settled.

This Court is without to amend the Constitution authority by strik- the guarantee given toiling therefrom masses and men small ing means, $2,” “State county tax shall never exceed capitation poor.” by and that it shall be “to education and If applied only argument ingenious be shown that decisions have any previous could held that be done much (but not), this can so the worse decisions. merely those The would show that argument judges always mistakes. would not infallible, sometimes make author- ize us to to those amend Constitution to confoim decisions. public will feel interest such slight argument claiming

precedents. it will that faith kept But concern them should be deeply to whom the pledge given masses constitutional should be limited “to and the applied only education matter, poor.” It will be a strained construction placed serious Court, on the Constitution of this those majority repeal bare provisions, making thus limitation and subject appli- to.no cable to all purposes, already with the effect sufficiently those burdened with an share of shall have their rata undue taxation pro increased an unlimited and themselves disfranchised unable to pay tax. heretofore, till

As construed this Court held “equation” only $2,” $2. tax reached As the could "never exceed ceased, then equation necessarily for thereafter taxation could 29 —172 IN THE SUPREME COURT. Commissionebs. C.,N. Jones v. and numerous property.

laid since. cases Con- Court amend Constitution?

Can a of -this majority .The never guaranteed the State and “shall stitution Consti- judges, $2.” vote of As now amended three tax.” be no limit poll “There tution must henceforth read: the by the by adopted written Convention Constitution as reads, educa- tax to the purposes- the “shall poll applied people aby majority As now amended tion and the of the poor.” “The tax shall poll read if written: Court, must henceforth as the' reversal complete This is a and all any purposes.” to applicable amended, the now construction. As propositions, by judicial of both to applicable any purpose, limitation and poll tax laid without being it in to no reference by putting any to be served there the Constitution. of the judicial majority

This a bare construction, by its to those bond- makes the tax unlimited and poll gives proceeds now holders, slight a will about its bring especially likely abolition — not who does in another decision will disfranchise voter change every of bondholders. an unlimited tax for the pay poll benefit Taxation, 104,-it “The tax of is said: poll In Hollander on State It kind. regressive very heavy Carolina is tax clearly North Let the on small owners. doubling amounts rate frequently property owners, instance, owning property us two one suppose, property $10,000, $300. worth worth If we owning and another property each tax per (an average municipal on tax cent property 2/3 $5, taxing this the in North tax of amounts Carolina) man cent, poorer richer at a rate above while the slightly per 12/3 tax, a| If $10 man has or at rate of cent. pay per poor 1/3 escapes payment man has and thus extra property, of this is him never very acquire existence tax an inducement to State, city since from first savings his any property, county, him savings $300. as much as bank would had away pay take he $100, far more would If he saves take than such bank away re- him. this is a’ real and an consideration is important That pay in his given vealed from Wake the Auditor County statistics county pay for .1896. Over 60 cent of this per taxpayers report esti- less than real and Auditor personal property, that 80 cent of entire State pay mates per taxpayers weighs On such persons than worth of property. less it; man does not feel the man with no heavily. The richer the small largely escapes it; hangs owner TERM, O.] Commissioneüs. incubus. is even, It not proportioned ac- ability. cording theory general property tax, proportioned wealth. In what manner its advocates would justify retention the tax is not clear.”

If the burden this class is to by making be increased unlimited, bondholders, change it for the applying benefit such should be aby made constitutional amendment and a clear expression box, by the ballot people and not in a judicial construction divided Court. section,

The Constitution in a separate pro-, vides that tax shall “for applied solely education and the This in no wise with the poor.” equa- connected tion or limitation, and, therefore, levied, when the whether within or beyond interest limitation, any no bondholder has the poll tax; whether its assessment act be stricken out or not the) its limitation to bondholder can neither event have proceeds, interest and failure collect it because excess of $2 in for.any no wise concerns him. that the issued follows bonds valid purpose are re- valid, tax in out though poll $2, excess of spect for the Constitution, is collected. not cited,

The three in 148 cases above the last the subject, authorities, Dixon, all v. reviewed Tate including Herring it that no (except and unanimous Court held case was again down, conflicted with the doctrine therein laid one) tax could not exceed and should be for education poll applied and the arise.” poor, question again asserted that this “cannot unlimited,

If poll tax is did the Constitution why provide it should “never If and col- $2”? exceed can be levied an did bondholders, why lected to unlimited extent for the benefit Constitution it should be education pledge applied only subject reviewed and the con- poor, why whole stitutional a unanimous in the three provision sustained Court latest eases on the subject?

The poll-tax payer forgotten “the man” when the Consti- tution was enacted and for adoption. submitted J\, much of dissenting: Concurring so the Court’s "Walker, opinion as & Spitzer annuls contract between the defendants Co., I am much compelled to from so decision dissent valid, from Court as holds that the bonds are especially part levy affirms the State and exceeding $2, Assembly, even with the of the General special approval COURT. IN THE SUPREME

Moose tax, can never my opinion, Tbe and interest. bonds tbe pay and tbe special, ordinary, general, any purpose, than education other purpose to no it applied can proceeds bei any 'to discuss necessary I not deem it of tbe do poor. the support tax, tbe poll tbe relating tbe one except of tbe case feature receives Court, of tbe wbicb in view of tbe admission tbe concurrence, contentions, if “three tbat tlie second tbe full my tbe statute V,” of section of Article adopted, tbe construction (as is ineffectual wbicb it is to issue these bonds proposed under because, directing this “in after entirety,” tax) it and makes together impossible it links tbe two constitu- tbe .separate observing them, by using “always tbe words taxes on tbe and tbe tional between tbe taxes in tbe is thus stated poll.” of these three contentions second never opinion: absolute and can “Tbat tbe limitation on tbe tbat limitation purpose, upon property be exceeded tbe of tbe Gen- be for a with the may approval exceeded will, therefore, to maintain tbat eral Assembly.” My purpose contentions, concerned, second of said as tbe tax is so far should now, adopted before, done, my it has been this can be judgment,. easily both a recurrence to the successfully, by plain and emphatic language of Constitution and the recent decisions of this Court. gathered, reliable,

Whatever anything stable or decisions of prior very certain tbat in'the year named we very after full consideration passed elaborate Southern Rail discussion Justice Connor Co. way County, v. Board Commissioners Mecklenburg C., now, 220. The of was same then as the Court the personnel we exception, one all that time tbat tbe surely thought ques at if tion was for a or one of a ripe decision, any contrary opinion was us, gave it. If it not properly no to was then before expression in uselessly great we consumed deal of valuable time and labor tbe discussion of a moot question.

In to of tbe clearly order show that of tbe maximum question poll tax (148 only was involved in that case N. we need to C., 220), tbat it was con tbat the Court shows say opinion manifestly the in but as main case, sidered and treated not as a the the only question fact, was, involved, record, tbat in as by tbe question presented it 245: tbat tbe tbe Court at “We decide language p. this appears by acted in accordance with tbe of Mecklenburg County commissioners N. TEEM, O.]

Moose v. Commissiouebs. failing in more than levy poll, $2 statute the that the stat ute a valid exercise of Legislature. is the This conclusion renders it much unnecessary to discuss the vexed as what question or is what not special purpose is within the meaning of section 6 of Article Y.” The was whether the commissioners could question more the poll, than the or could authorize Legislature them to so. It appears following language do further the Court, the more is required: “We to the conclusion brought that the act of ch. inter accordance with the correct pretation Constitution; that last in section Article the clause Y, 'and the State and county tax shall never combined head,’ tax imperative prohibits any the upon the sum; that excess that applies the of education and the poor, that language this it for any withdraws other purpose. Wa are not inadvertent the fact that conclusion the last re spect is not in what harmony with was said Board Education v. Commissioners, C., Board said, 310. As we have case that collected, had only been and the was which question two should Under contradictory provisions control. the construction which give we again cannot question arise.” We not should overlook the fact that in the outset of the R. R. v. Comrs. formed doubt as carefully expressed to “whether question (now) raised record has been decided Court,” this is the conclusion: “It is evident that the question-is regarded one, open must be settled upon some basis.” The permanent settle, forever, Court then proceeded finally this vexed question long of taxation which for so had subject been variant indi opinions vidual expressed judges. The Court held that limit of the question constitutional tax was case, presented, raised in was as one actually point whether Legislature, giving levy, its assent was bound to observed, to be that a would require so be levied with the though even tax in the had limit reached the the railroad company contending that do Legislature compelled so discriminate it as tax against not. Court decided it was as the payer. required, limit It be successfully could not exceeded. cannot contended directly was not in R. R. v. involved Commissioners of term, Buncombe, heard the same 248. The language plain misunderstanding, is too conclusively shows was. is there said: “The defendant board of commission THE IN SUPREME COURT. taxes, were advised and that

ers, said believed levying tbe time of at- - sec. the Art. all the bad no under right, tax in capitation excess complaint, (levy) mentioned in the acts Honor, the of the several being the opinion His that $2. the tax corresponding ont on without property, taxes set the void, County, illegal in Buncombe was polls taxable for reason made plaintiff illegal, to the that that the taxes charged Defendant board hearing. to the injunction the continuing order “The there- question, it said: was appealed.” Again commissioners action depends its which to -maintain plaintiff’s right the foi’e, upon legis it V, imperative upon makes is whether section $2, tax in tax in when a excess impose lature to all for any upon projierty the same amount is levied excess of words, county capitation or ‘that the State whether purposes, tax head,’ $2 on the prohibit combined shall never exceed tax given subject "We have of that purpose. excess sum case, and Mecklenburg in the investigation thought our best After cCmmenting therein announced.” reached conclusion levied, the Court further said: “This already excessive Constitution, when the imperative operation significant never on the head that exceed command was what the Court In case the placed that decision disregarded.” discussed, finally adjudicated been held had presented, fully case, never supra, could exceed Mecklenburg had held In the Buncombe case Court any purpose. Superior levied, if it limit and tax must be even did exceed the reversed, only ruling .a and that special purpose, was for said, reason, go tax could beyond not Comrs., Perry Again, $2. limit of constitutional Comrs., Connor, in R. R. v. supra, who wrote the said opinion Justice however, concurring in R. R. v. “My investigation, in a opinion: Comrs., ante, 220, impressed my mind the conviction that of 1868 anticipate any poll framers Constitution did be levied for other than 'State and should purposes,’ those should not and should be applied education and the And the Court poor.” Hoke, itself, in the through very pronounced Justice expression in R. presented as what was decided R. v. supra. There is uncertain note I am no sound what discordant true, Perry’s case, it rings about to clear and leaves quote I hang doubt as to what was meant. will 'itali peg upon is, literally words. as taken from the important cize the Here 455 TERM, N. O.] Moose v. Comrs., 522, at pp. v. Perry Hoke of Justice

523: commanding one of in this appeal question presented

“While the State, entire its correct importance and to the far-reaching interest solution, of this deducible decisions readily our opinion, subject bear with more Court heretofore made and which V, after direc- or less directness. section of the on, Assembly every tion that the General shall 21 male inhabitant of the State over 50 of years age, under each shall equal that this to the tax on valued that the $300, provides combined county capitation shall never exceed on the 2 of the provides head. Section article that the State and capitation tax shall be to the applied pur- poses of education support poor, and that not more than per 25 in any cent such tax one shall year appropriated poor. Section of the same article provides that by taxes levied the board of commissioners county purposes shall taxes, in like manner the State levied as and shall never exceed the double the State special except purpose and special General approval Assembly. sections, these Construing Court, term, at the Supreme Railway last v. Board Commis- sioners County and v. Mecklenburg Board Commis- Railway sioners Buncombe held that County, this restriction on amount of the poll tax contained shall be given significance which its terms clearly import the State and county capitation —that tax combined bead, shall never and that this limit on-the fixed indicated, tax for the purposes is, the State county, observed, be always that a notwithstanding given be for some special and with approval the General Assembly.” mean, does all this if not

What that the question as the limitation of the poll tax for all presented Comrs., was R. R. v. ?

decided Surely, it was not to say intended by that the Court a mere dictum had V, “construed sections” (Art. those secs. 6) and “held” that the amount of tax cannot case exceed as the justice learned said that is the “significance which its terms clearly I import.” am referring these of justice, as the views one them, but as those of all reinforced a separate concurring opin Connor, ion J’ustice who R. spoke Court R.

as to was then what before us all testimony concurrent judges, and as what decided, intended to be written into IN THE SUPEEME COUNT. COMMISSIONERS. accepted ap unanimously was aftenvwards wMcb opinion,

Ms Perry’s when case personnel Court. The proved tMs when R. v. Comrs. was decided, R. was. same decided heretofore now, exception with one noted. as it is to) shown, show, and, think, I have I attempted far So- as concurred, this question I of other with whom judges words re- Court had been before the limit'of the tax to the maximum in was decided It cited, in had decided. the cases and been cently case, open was there Perry’s general of taxation question the power as to the extent the discussion, the especially question and by counties, State, What was said municipalities. to both in and tax hand, in and was question the Justice IJoTcewas to clearly pertinent a it. decision of clear-cut Ed., S., L. the Court said Schutte, 336),

In R. R. v. 103 U. 118 (26 was in case “Although the bill the precedents: on the doctrine bonds not of the State airy because it was finally proved dismissed in dictum. cannot sold, such sense It had been the decision was because, although that point not On one authority said that a case is point of the regular in course properly presented was decided the in the else was found end which cause, something consideration the properly Here was precise question the whole matter. the disposed argued, opinion. considered the presented, elaborately fully judgment was as much of the part The decision this on which as that on other of the several matters the S., R., 160. R. v. R. 199 U. depended.” the case as a whole R. This as what was brings me to the to decided important question cases, doubt, regard this there can no reasonable those to R. meaning. In R. their unmistakable given plain the words 240 241: supra, sugges “The says pp. the Court worth of ($2 property) passed, that after limit tion to of the amount of tax is left the uncontrolled discretion the we do think finds the Assembly, support language General Constitution, 'the by positive but is excluded command that head,’ tax shall never exceed .on combined county to of educa provision limiting purposes further application two different con Eeviewing and the support poor.” tion pro the Court provisions Constitution, structions the tax then “If we confine the we the other construction adopt ceeds as follows: $2, 'fori by as purposes’ tax all provided and the of the it to the directed —education apply It 'to makes poor purpose.’ capitation no other uniform —and State, restoring incorporated throughout thus the principle TEEM, N. O.] Cojimissxokers.

Moose in 1835. It conforms express as amended Constitution in the amendment ratified expressed declaration of the people, ‘every presenting himself August, provides person shall registration shall before he be entitled vote he pay, in which shall have on or before the first paid, day May year vote, he previous year, his tax for the proposes prescribed V, anomaly the Constitution.’ by strange that, to say right while the to vote is restricted payment of poll tax which ‘shall never exceed $2,’ the voter disfranchised may be for failure to pay the amount of which left to the discre- tion of the Constitution Assembly, General thus guaranteeing citizen every otherwise qualified right vote paying construction, and, giving the General Assembly to any increase it amount deem they may proper. Whatever have been the construction we find in prior January, 1901, amendment, which then beeáme a of the Constitution the vote part a construction which full force and people, gives effect to the provision that the State combined Y, in prescribed never exceed as Article section 1.” finally And the Court decided that is section in mandatory pro- the any hibition of tax for any purpose beyond $2, whatsoever and collected, tax, the of the when proceeds that levied and must be ap- plied specific in purposes designated section and to no other. How I the Court could have' less expressed itself with ambiguity, am at a loss to conceive. There is but one that can be meaning given is the ne plain to such and language, namely, unmistakable that ultra taxation, in clearly indicated the Constitution flus “never,” the use the word which nega is the universal adverb But, tion. we have shown, when another branch the discussing subject, the Court afterwards construed in deliberately the opinion Comrs., R. R. v. if we may speak something which is perfectly clear as been having construed' —and thus its view that stated case: was held “It this restriction on the amount of the poll tax con in tained given be the which its terms significance clearly the import county State tax combined —that shall never head, and that this limit is fixed on the is, poll the purposes for county indicated —that the —shall always observed, notwithstanding given may be that a be some imposed special purpose the special approval of the Assembly.” Summing matter, General up we find this to R. v. been held R. 220: have 1. question That the had not been decided before, but was then an THE IN SUPREME COURT.

Moose v. Commissioners. one, to receive an open ready authoritative consideration and final permanent settlement of it basis. That the State and tax can never purposes, $2.

or for all purposes, exceed must 3. That always applied education and the poor. decision, unanimous,

That was with four respect in the Court. involved justices sitting question now The was was, case, great pains because the Court said it and was at who decide, justice the learned great importance, one being authorities some pertinent reviewed all wrote decision, and after the case for because the length, question I conclusions which Court arrived at the unanswerable argument stated, finally said and it was then just clear, more language not arise Could again. closed could case, direct, subsequent than it was in that and emphatic Comrs.? Perry case of cases, as it is the last utterance to discuss -unnecessary previous If of action. counts, gives binding rule justify a character to reliance have been made of rulings

other into contracts have entered law, individuals settling them as them, valid under another principle; latter may because of concerned, where no such can thing pos far as the case present so has been or other right acquired, have occurred no vested sibly the Federal State Consti under the right protection reason can be tution, as the transaction is still fieri, sound- even, decisions, if it controlled last being advanced our the; date contrary. are others of prior be conceded there one. is, be, a ease and should There prevailing last word such or intimated in former expressed variety opinions have been dicta, in the true sense of that cases, all of which were many if not cases were reviewed not, carefully whether so or those word; but Comrs., supra, and held not to con minutely this Court R. R. by case, it was the Court that by decision that as stated with the flict closed, open been but still debate had not question decision, finally then to establish the true proceeded final and the Court so that it cannot arise controversy again. foreclose the rule and to itself to discussion of that case did not a The Court limit tax could be levied for what has been poll how much to took a much broader opinion “Ordinary expenses,” called a as to what was the extreme limit decision resulted sweep, the con- “special” tax for all poll purposes “ordinary” —and — TEEM, N.C.] greater

elusion was that no sum than could be levied for the two- combined, or and all any purposes, being the only permissible Y, of the meaning words of Article section county" “the State and tax combined shall never exceed The head.” framers of the Constitution used the most intensive and at the same- time extensive word within English in order to vocabulary set tax, impassable to the which would poll apply limit to- all cases of taxation, term, $2,” and the “shall never no excep allows of tion, but is as broadly inclusive as words could be. The any possibly section says that the State and tax combined never exceed county $2. Is a less a any county it is levied for a because Is not a tax for road kind a tax? purpose? purposes any county How, could then, any employed term the will of express to the people- Besides, in forming organic their law be moré there all-embracing? is no authority be found other article or section of the Con any stitution levying tax, in section 1 Article Y. There- poll except elsewhere, is no mention of a tax in article or poll section Y, in section Article which how the except provides proceeds poll tax shall be the- applied; suggestion this answers the Art. (Const., YI, amendment of 4), prescribing qualifi see. voters, cation of refers only payment poll provided Y, The in Article section 1. latter section is the one authorizes State and of whatever any poll county tax for kind,' of' range and therefore the reference to it embraces the entire purposes. taxation on the for those quotation opinion from Perry v. Gomrs. with reference to this matter does view, not militate but rather it. The learned against supports referring altogether by who wrote the to taxation justice and when he the State county, district and not mentions school 1, he tax authorized as he says, tax, seen, same “This we have opinion, had said before Connor for the adopted $2.” can never exceed Justice also this view and at the risk of some supra, repetition, Court in R. v.R. clear, I but in order to make the will point perfectly again quote of his “It is a language relating this feature of the case: part that, while the to vote is restricted strange anomaly say right of a which ‘shall never exceed the voter payment $2,’ be disfranchised for failure the amount may pay discretion of the General the Constitu Assembly, which is left right tion citizen otherwise guaranteeing every qualified thus construction, and, giving tax of by paying to vote to increase amount Assembly General IN THE SUPREME COURT. Moose v. construction to prior have been the Whatever proper.

deem amendment, part which then became a 1901, we find January, a construction people, the vote of the Constitution State and county provision effect to the full force and gives in Article as prescribed combined never exceed ’ view Court in this case with the Y, 1.” This conflicts section Y, of taxa established ratio section subject. between the and section the ratio tion between property, de tax, tax is authority and the but all -county fixed thereby its maximum is rived from Article section $2. at the Court a reference gained argument can be for the

Nothing YII, power does not confer any to Article That section counties, Y; had under Article they already power a vote of the require so as to merely power but restricts It is not necessary expenses. tax is not for people proposed where creative, restrictive. clause; clearly but enabling disabling at least as authorization, Its those of instead prohibition are words counties, of taxation. had been invested with the already power who had it? This Court has give already them Why again, or additional regarded power, that section as no new always giving and this decisions will already counties, but as our curbing given districts, school corporations, cities, towns, show. such as Municipal etc., taxation, been have, placed to their respect counties, our will different from the State and its decisions basis show. 1868-9,

If levied in in viola- past, beginning have been taxes it is reason good tion of the words of the no plain to meet the judicial exigencies construction changing meaning by of the hour. in his expounder, the eminent author and treatise

Judge Cooley, 75, says: Limitations “The Consti- (7 Ed.), p. Constitutional direction, law, or tution of State is than higher authority any it, assuming order or officer to act under since by any body any made delegated authority, must exercise a and one body such or officer which the delega- be subservient to the instrument necessarily must law must govern, is made. In case of conflict the fundamental tion as of legal validity. in conflict with it must be treated and the act of conflict questions been devised which these yet But no mode has and their determi- abstract questions, and settled as discussed rights when or public private necessary practicable nation is subject legal become the then thereby. They would be affected FALL TEEM, N. O.]

Moos® Commissioners. Tbe be settled the courts. by controversies must controversy; legal consti- upon them the the duty pass courts Lave thus devolved and sometimes of executive legislative sometimes validity, tutional but judge not authority acts. And as tribunals have judicial a decision the against also to the result of judgments, enforce their render it act will be to of a or executive constitutionality legislative law in the contro- paramount invalid the enforcement of the through every If we full rein to versy give which has raised the question.” construction of the Con- other of the Government the department it was stitution, we would the evil which by very soon confronted deference and While we will treat adopted prevent. proper or usage, per- consideration established as any departmental practice those who have followed haps indicating, made by impression it, means, has continued what the Constitution where the custom been it, and, we are not bound as throughout years, series many must, last, mean- the courts determine what that Judge Cooley says, is The Court cannot abdicate its ing expressed right therein. Constitution, may it to one else. assign any construe of the State we development the enormous growth, progress, find the limit of taxation potent enlarging adopted reason for us, in 1868. whose though, province This can be done not written, of the two methods what has been but one interpret only itself, which would the assent prescribed by require the Constitution people. (Art. XIII.) citizen, under advantage has been said about the Something construed, in the new. being system repairing the statute now broader, here is much old; roads involved over the but the results, contained than is anything and more far-reaching general power consideration. It concerns statute under without Legislature, with the consent of counties tax the poll, restricted to limit and for any special purpose, $1.05, are the limits fixed and a tax of cents taxa- unlimited statute. Under the Constitution by this the Consti- framers of anywhere. tion not intended to reside required would be more what rate taxation tution could no estimate they of a than “ordinary” “everyday” expenses usual or more than require would for its other Some counties expenses. could all, which was supposed, fixed for others, and therefore one rate was counties, if eco- time, government at the to be sufficient for liberty miscalculated, If we are not at administered. nomically error. to correct the for in is not this statute provided that the poll conclusion is

My if it thereof and, is, proceeds Constitution, authorized IN THE SUPREME COURT. bonds, interest, cannot be or the paid should applied, the. V, directed by the Art. sec. to2, educa- so, tion and This poor. being the statute in question invalid, upon the in the stated principle majority opinion, that the statute must stand or fall in its entirety, because after directing of a tax and a it links the two in such a together manner indissoluble, as to make them that the by providing constitu- tional equation between the two kinds of taxes always be observed. It impossible why is me to see this is not the logical inevitable correct, result, if is my position that the tax is void. of the statute, invalidates This the entire as the one cannot exist without other, coexist; being the but both must it united as were an insev- ligament. applied erable We the same most in Keith principle recently Lockhart, v. 171 N. 451. It was C., there said Justice Hoke for a unanimous “It Court: is insisted for defendant that only the proviso unconstitutional, being this can be eliminated and the statute authoriz- ing special tax upheld. recognized is the that ‘Where a principle part valid, statute is the unconstitutional, but remainder is will parts separated, be if and that possible, which is constitutional will be sustained.’ In Black on Constitutional Law the rule is said ‘If rest, to be: the invalid and, can be from if portions separated after their excision there remains a valid complete, intelligible, and executed, statute capable being conforming general to the pur- pose and intent Legislature act, shown the same will toto, adjudged not be unconstitutional but sustained to that extent.’ however, is not allowed to position, prevail when the parts other, statute are so connected and dependent, the one that upon eliminate change one will work substantial which portion Thus, remains. work the author 63 : says, Black’s further page ‘And rejected the unconstitutional clause cannot be without causing Legislature intend, the statute to enact what the did not the whole statute must fall.’ subject the same in the first Speaking S., Employer’s Cases, 463-501, U. Liability pp. the present Chief it, Justice said: clear White is ‘Equally generally speaking, when a statute contains which provisions are constitutional and others which not, are must given effect to the legal provisions by separating them illegal. But this to a applies only case where the provisions other, separable are and not one dependent and does sup- the contention that is port what indivisible be divided. More- over, even in a case legal where provisions may severed order to save, when it applies the rule that the plain Legislature would have enacted the with the unconstitutional legislation elimi- provisions McKenonill, nated. Illinois Central Citing R. R. 514.” U. S., 1916. TERM, C.J Moose v. Commissioneks.

Another reason scheme is and this statute one, intended to be an entire and indivisible and if any essential part it, enforced, is stricken from and would the remainder result in doing something was never authorized contemplated, or done, and, therefore, lack sanction. legislative Having reached the conclusion void, form the statute I need not present dis cuss the other case, my one phases as the reason assigned it, view is to sustain right all-sufficient if I am in the conviction that or, the poll tax is limited all purposes, in the language itself, of the instrument can never exceed that amount. Justice Rodman thought tax were so property pro portioned that class each might exercise a restraint taxpayers other, and for together. this reason linked inseparably were R. Holden, R. 410. same Russell v. And the said in Ayer. 120 C.,N. Clark very Justice said that the truly tax, property V, fixed Article standards for each other, whatever is, limit on the placing tax, property property tax this ad creating equation between the two. Hnder justment the not exceed worth of could one-third of the to and equal the entire must be never exceed times on a of property. three tax like amount property This was to' sub the burden two supposed fairly apportion on these of jects and out there adjustment and of this polls property; taxation — forces, resulted a the two which one is balancing pro opposing tected against other. oppression We that the in this dollars statute of one suppose cannot %oo than 35 cents on was intended be otherwise poll and which had been levied in Alexander already

additional to the tax statute it shall County says to the limit because the up expressly therefore, the con- reconciling be. There is no this with way, tax, as stitutional mandate amount the entire and poll from with it. escape conclusion that if it void the statute falls argue $2 cannot that it shall when the statute stop expressly We at contrary. provides to therefore, Justice, seen, It will be that I that agreei Chief any

in no event can the for or for all but purposes; $2 exceed poll so, nugatory I concur with the that this the statute is majority (as there and tax), this as was one entire indivisible scheme of which is Legislature, composed taxation contemplated by tax and which designated statute, taxes at the rates and must .or fall whole. stand as from

I that the in Collie v. may quotation my opinion add properly Court, Comrs., 145 N. made in the of the had C., refer- SUPREME IN THE COURT.

Moose v. school tax us, to the tben before the particular question ence to Constitution, and read with the context IX when Article of the under harmonize, with the views every herein respect, will found to $2, except, exceed I said then could not per- stated. were IX, holding fully reasons so my given under Article haps, need not be here. repeated dicta, has not been there are ill-considered denied that some favor there, may the view of the which here and ing majority, picked up jetsam, from the current judicial opinion; they like flotsam in 1908 jettisoned were Court long ago, through this Justice Connor, reviewed, he case said, “every any light C., (148 be found this N. question” 239), difficult most ex cited haustively (naming all of those majority), deliberately concluded, first, can never that the any purpose, second, and, ordinary, general, that the special, proceeds the poll tax must be applied to the mentioned the Constitution and in the other, respect to no latter what was said in Board repudiating Commissioners, C., 310, Education v. Board decided from which majority rely which the quote. conclusion, “We are inadvertent fact our last is not with what was said in Board Education v. respect, harmony 310,” Commissioners, N. C., language Board the exact Court, Connor, C.,N. (148 Justice in the case Mecklenburg- p. and the to which he referred was “that Constitu 245), “last respect” tion, I, sec. education applies and the and this withdraws poor, language any other case purpose.” question Mecklenburg The distinct (148 levied, was whether a tax above could be rail 220) be, company unjust road should dis insisting prevent it. so as it, crimination against and the held all restricted So that the purposes, absolutely $2. was decided,-if a thing there such undoubtedly presented pos anything, more was, And the Buncombe case the issue sible. The and the decision pronounced, more-emphatic. point, clear-cut and correctly held single whether the point, Superior and the Connor Justice any thus that could exceed case. words, and That the the one to be: “Whether only question stated head,’ and tax shall never exceed sum and the any 'purpose,” that in excess of prohibit do, The great that was the ratio decidendi. they answer told us, case the Court Ferry of the discussion in the value Mecklenburg what language, explicit the most and unmistakable N. TERM, O.] v. tax, decided, as to

and. Buncombe cases bad tbe limit of tbe botb in respect to ordinary purposes. C., therefore,

Tbe three cases in 148 N. are tbe latest authoritative decisions distinct precedents upon subject appeal, tbe this for that I I in Har reason follow feel bound dissented by them. graves Comrs., dissent shows, my as tbe record but inadvertence by was not entered in official tbe (168 628) reports. tbe volume This question was discussed or decided in that case. The decision not there was based this discussion. question entirely upon foreign

It remains me to only meaning that tbe of a Constitution— say statutes and other instruments well'—is as fixed time written, changed and is not Construction, subsequent events. there fore, should be word, confined tbe written and it is imma utterly terial judges how individual have assented may apparently dicta, tbe question being whether we finally should follow as binding prece well Court, dents the considered and final judgments this which were rendered in this very question, or them. obvious reject that what is said in Perry Comrs. about taxation subdivisions districts, a county, such school can bearing as have no limitation of the State and not county capitation apply it does taxation, and, therefore, to that can form there con no possible flict between Perry’s case and the case. Mecklenburg

We are concerned not with results or consequences, only what law is. do- Expediency nothing has with the question. Suspension business ultimate ordinarily are not bankruptcy products within frugality.' your “Live means” is the safest rule affairs, public well as in us private was commended to C., 692, Court in French v. discussing when this same taxation, practical as one of great wisdom. I it of deem the utmost should adhere importance we to what y has been already stare solemnly adjudged, decisis deliberatel being but a wholesome wise maxim of the to which law, due, strict observance and changes in construction not be should except made for the most cogent reasons. of expounding the laws—which includes the great responsible duty deciding legislatures, whether State and municipal, have their transcended past action the limits their authority as defined by the Constitution —belongs judiciary. St. and Const. If Sedgwick p. 253. Law, -change it turns out the law is necessary public - welfare, and to meet new conditions extension of require legislative let be done power, people regular exercise will, sovereign their not otherwise. Until is thus I done, 30 —172 IN THE SUPREME COURT.

Jenkins v. Lambeth. as, read it is my opinion, plainly expressed, must tbe Constitution my duty. endeavor for sucb is provisions accordingly, to enforce I will duty, always regard In tbis consider performing though, my and deference learned brethren. respect opinions I brethren and that may my majority right, It be that of the are he, shall hereafter be wrong; am but however their decision may me, a I have a conviction of con- strong law with as of the State be settled once touching organic struction law should all, to the or the subjected constantly varying not be opinions be made to rest a judges. should personal notions unchangeable my basis. As said one predeces- permanent sors, in views all case, “my only object expressing my similar that, necessary, deemed subject, has been call attention so doubt, from one way make the law free steps may perfectly be taken to other,” alter- firmly against or the and thus entrench and secure nation of opinion. handed in this case were down Since the opinions

Per Curiam. the form of the objection called made to our attention has been is not in the form the bonds objection bonds. The is made that contend that the bonds accordance with the statute. The defendants statute. proper payable required by are in form as correct and that of the bonds is "We are the form law. substantially required are and payable issued judgment respect The Superior Affirmed. H.

MYRA LAMBETH T. JENKINS GRAHAM et al. et al. November, 1916.) (Filed 15 Testing Contingent of Interests —Donor’s Death— Remainders — Estates — Conveyances Interpretation. Trusts —Deeds and — wills, general applying rule, in trust as when to deeds well present property, testator, prior makes, his a terms, limitation of after right disposition remainder own heirs same in his nothing appearing, heirs, heirs, to be ascertained de- these else death, courts because time his on as of the favored termined tendency limitation takes it has to hasten the time when ulterior quality, rule of substantive law on a transmissible interpretation required follow, imperatively a rule courts are correctly donor, adopted intent of be de- ascertain proper perusal meaning parted from a is disclosed where different instrument. of the entire

Case Details

Case Name: Moose v. Board of Commissioners

Court Name: Supreme Court of North Carolina

Date Published: Nov 9, 1916

Citation: 90 S.E. 441

Court Abbreviation: N.C.