26 S.E. 150 | N.C. | 1896
Lead Opinion
This case comes to ns upon the appeal of the plaintiff from an order of Boykin, J., refusing an injunction against the levy and collection of a special tax.
The general power of the Legislature to. levy taxes is restricted by the Constitution to 66f cents on one hundred dollars valuation of property. Article Y., Section 1. And Article Y., Section 6 restricts the power of the counties to double the amount levied for State purposes. But both these levies, for State and county purposes together, shall not exceed the constitutional limit of 66§ cents on the hundred dollars. University v. Holden, 63 N. C., 410. But Section 6 contains an exception to this general provision in the following terms, “except for a special purpose and with the special approval of the General Assembly.”
It is admitted that this tax, which plaintiff's seek to enjoin, is over and above the general constitutional limit of 66lf cents. But defendants contend that it is authorized by the exception to Section 6, and that the act of the General Assembly passed and ratified on the 11th day of March, 1895, authorizing this levy for the years 1895 and 1896, is in compliance with this exception. And defendants rely specially on the following language contained in said act, to-wit: “ To levy a special tax upon the taxable property, real and personal, and the polls of said county, for the special purpose of maintaining the free public ferries of said county, and maintaining, constructing and repairing the bridges in said county, and meeting the other current expenses of said county in said years.”
It has been held by this Court that the building and
This proposition, it seems to me, is not met squarely in the opinion of the Court. It attempts to parry its force by saying in substance: If this provision had not been in
I have been unable to find any authority sustaining the infra sires of this act, and to my mind it is “so plainly” in violation of the Constitution that I cannot give it my sanction and approval. In my opinion the injunction should have been granted. There is nothing in the record to show that the tax has been collected.
(This was written as a dissenting opinion, but was adopted as the opinion of the Court.)
Error.
Dissenting Opinion
(dissenting): The denial of the first application for a restraining order for want of a material averment. is no obstacle to this second application in sufficient
If the special levy herein had been authorized solely for the two purposes first named, of maintaining free public ferries, and maintaining, constructing and repairing the bi-idges in said county, the validity of the act could not have been gainsaid. If the act had authorized the special levy for the purpose of supplying “ a deficiency in the current expenses of the county ” we find nothing in the Constitution to forbid it. Indeed, as the county cannot go beyond the constitutional limitation in levying taxation without special permit of the Legislature, when the sum raised by the ordinary rate is not enough to pay the current expenses, the only relief is to apply to the Legislature for authority to exceed the limit. Const., Article V., Section 6. And this has been the course pursued ever since the Constitution of 1868 was adopted whenever the current receipts of a county have not been sufficient to pay its current expenses. A county need not first get into debt and then get permission to levy the tax. The Legislature in its discretion may authorize the extra taxation whenever satisfied that it is necessary, of which necessity the General Assembly is the sole judge. Here the Legislature unites in one act the three purposes above recited as those for which this special levy is authorized. There is nothing in the Constitution forbidding this or authorizing us to declare the act unconstitutional on that account.
The commissioners of a county are authorized by the Constitution, Article TIL, Section 7 to create debts for necessary expenses without the approval of a majority of the qualified voters (Evans v. Commrs., 89 N. C., 154) and are to judge of what expenses are necessary. Brodnax v. Groom, 64 N. C., 244; Halcomb v. Commissioners, supra ; Vaughn v. Commissioners, 117 N. C., 429. Neither sound
Besides, the other two purposes of this special tax (roads and bridges) are admittedly constitutional, and this Court has held, as recently as McCless v. Meekins, 117 N. C., 34, (opinion by MONTGOMERY, J.,) that in such case the act, being valid in part and invalid in part, the fund will be held for the benefit of the valid purposes of the act, and in Trull v. Commissioners, 72 N. C., 388, that only the collection of the invalid part can be restrained; and here it cannot be seen till the end of the year that in fact any part of this special tax will be in excess of the expenses for roads and bridges. Clifton v. Wynne, 80 N. C., 145. To reverse the court below and order the injunction to issue is objectionable : (1) Because it would restrain taxes for special purposes admittedly legal; (2) because the taxes, having already been collected since the dissolution of the injunction, (December 2, 1895,) it would be a vain thing to restrain an act already accomplished.
Indeed, if the levy had been authorized for the first two purposes only, and a surplus had been raised, it would have gone into the county treasury to meet current expenses, without any further authorization in the act. Long v. Commissioners, 76 N. C., 273. That is the effect of this
Lead Opinion
CLARK, J., dissents, arguendo, in which AVERY, J., concurs. His Honor refused the injunction, and plaintiffs appealed. This case comes to us upon the appeal of the plaintiff from an order ofBoykin, J., refusing an injunction against the levy and collection of a special tax.
The general power of the Legislature to levy taxes is restricted by the Constitution to 66 2/3 cents on one hundred dollars valuation of *319
property. Article V, section 1. And Article V, section 6, restricts the power of the counties to double the amount levied for State purposes. But both these levies, for State and county purposes together, shall not exceed the constitutional limit of 66 2/3 cents on the hundred dollars. R. R. v.Holden,
It is admitted that this tax, which plaintiffs seek to enjoin, is over and above the general constitutional limit of 66 2/3 cents. But defendants contend that it is authorized by the exception to section 6, and that the act of the General Assembly passed and ratified 11 March, 1895, authorizing this levy for the years 1895 and 1896, is in compliance with this exception. And defendants rely specially on the following language contained in said act, to wit: "To levy a special tax upon the taxable property, real and personal, and the polls of said county, for the special purpose of maintaining the free public ferries of said county, and maintaining, constructing and repairing the bridges in said county, and meeting the other current expenses of said county in said years."
It has been held by this Court that the building and repairing of public bridges is a part of the ordinary expenses of a county.Brodnax v. Groom,
This proposition, it seems to me, is not met squarely in the opinion of the Court. It attempts to parry its force by saying in substance: If this provision had not been in the act it would have been constitutional; and if there had been any surplus after maintaining (523) the free ferries, and building, repairing and maintaining the free public bridges, the commissioners might have appropriated it to other purposes. And Long v. Commissioners,
I have been unable to find any authority sustaining the infra vires of this act, and to my mind it is "so plainly" in violation of the Constitution that I can not give it my sanction and approval. In my opinion, the injunction should have been granted. There is nothing in the record to show that the tax has been collected.
(This was written as a dissenting opinion, but was adopted as the opinion of the Court.)
ERROR.
