Norfolk Southern Railroad v. Forbes
124 S.E. 132
N.C.
1924
Check Treatment
Adams, J.

The questions arising on this appeal are substantially the same as those which were decided in R. R. v. Reid, 187 N. C., 320. There the Norfolk Southern Railroad Company, one of the plaintiffs in the case now before us, alleged that the board of commissioners of Pasquotank County had levied a tax of 18 cents on all property of the value of $100, contrary to the provisions of Article Y, section 6, of the Constitution, and insisted that the tax in excess of 15 cents was levied, not for a special purpose, but for supplementing the general county fund. It insisted further that the provisions for supplementing the county fund (Public Laws 1923, ch. 7) could not be sustained, and that the entire act must therefore fail. In his answer the defendant Reid alleged that the board of commissioners had levied a tax of only 15 cents for general purposes and a tax of 3 cents for the construction and maintenance of bridges and the maintenance of the county home. Upon the questions raised by the pleadings and presented for decision the court held (1) that the tax of 3 cents was levied for a special pur *154 pose if for tbe construction, repair, or maintenance of bridges and tbe comity borne; (2) tbat a tax cannot be levied under tbe act of 1923, supra, to supplement tbe general county fund; (3) tbat tbe entire act is not for tbis reason invalid; (4) tbat while tbe minutes of tbe board of commissioners could not be collaterally attacked, tbey could under certain circumstances be amended in like manner witb other records so as to conform to tbe facts. It was suggested tbat any alteration of tbe minutes could be made only by tbe board, and then not for tbe purpose of modifying or changing tbe tax actually levied, but merely to correct an erroneous record and cause it, in the language of tbe law, “to speak tbe truth” concerning tbe tax. Tbe court did not bold or intimate tbat tbe board of commissioners bad power at a subsequent meeting to set aside or modify a tax which bad been regularly levied as provided by law.

We concur witb tbe appellants in saying tbat tbe board could not witb retroactive effect change tbe resolution it bad purposely adopted and tbe tax it bad purposely imposed; but several decisions of this Court recognize and approve tbe power of a court to correct an erroneous record, particularly when tbe correction of tbe error affects only tbe original parties, and tbe rights of others are not involved.

We do not understand from tbe evidence offered by tbe defendants tbat tbe commissioners made a levy of 20 cents in one item to include tbe tax both for tbe general fund and for tbe courthouse and tbe county borne, and afterwards undertook to correct tbis sort of an error by separating tbe one tax from tbe other. In tbe corrected minutes it is said tbat tbe first record was incorrect and by mistake showed neither tbe true act nor tbe intent of tbe board, and tbis statement is repeated in tbe affidavit of tbe chairman and tbe clerk. If tbe minutes were erroneous as to what tbe commissioners intended to do and what tbey actually did, why should tbey not be corrected ? Tbe minutes of 26 April and tbe affidavit obviously signify tbat tbe draftsman did not record tbe tax as it bad really been levied by tbe commissioners. Certainly tbey neither levied nor intended to levy any tax on 26 April, 1924.

Tbe plaintiffs contest tbe pension tax on tbe ground tbat it is provided for in section 5164 of tbe Consolidated Statutes (enacted in 1909), and tbat tbe later amendment to Article Y, section 6, of tbe Constitution is prospective — tbat is, tbat tbe legislative approval of tbe tax must be subsequent to tbe constitutional amendment. Section 6 of Article Y provides tbat “tbe total of tbe State and county tax on property shall not exceed 15 cents on tbe $100 value of property, except when tbe county property tax is levied for a special purpose and witb *155 the special approval of the General Assembly, which may be done by special or general act.”

The Constitution, Article II, section 7, directs that beneficent provision be made for the poor, the unfortunate, and the orphan, and the Court has said that the law providing pensions for persons disabled in war, and their widows, was enacted in the discharge .of a legal as well as a moral obligation. Board of Education v. Comrs., 113 N. C., 379, 383. The tax for pensions is designated in the statute as a special tax (section 5164), which is to be levied for each year, at the same time and in the same manner as other county taxes are levied. 'Whether this section be regarded as general or special, it meets the requirements of Article V, section 6, supra, and its efficacy is not impaired by this section of the Constitution. It is a familiar principle that existing statutes not expressly or impliedly repealed by an amendment to the Constitution remain in full force and effect, and that a statute will not be declared void unless the breach of the Constitution is so manifest as to leave no room for reasonable doubt. Coble v. Comrs., 184 N. C., 342, 348; R. R. v. Cherokee County, 177 N. C., 86, 97; 12 C. J., 725, sec. 97, and cases cited.

We do not construe the judgment as a final disposition of the action, but as an adjudication that, upon the evidence offered upon the hearing, the tax should be sustained and the restraining; order dissolved.

The judgment of his Honor is

Affirmed.