Williams v. Commissioners of Craven County ( 1896 )

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 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, 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 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, 64 N.C. 244. But for the construction (522) given to Article V, section 6, in Brodnax v. Groom, supra, I would have been of the opinion that the language contained in this Act of 1895, "for the special purpose of maintaining the free public ferries of said county, and maintaining, constructing and repairing the bridges in said county," was not a compliance with the exception contained in section 6, Article V, of the Constitution; that it was not "fora special purpose," "to maintain free public ferries, and to build, repair and maintain free public bridges." But I must admit that Brodnax v.Groom, supra, seems to justify this construction. And while I have no disposition to disturb Brodnax v. Groom, which has stood for more than a quarter of a century and has been cited with approval in many cases, yet in my opinion it went to the verge and should be allowed to go no further. This act, as it appears to me, goes much further than the act which the Court was construing in Brodnax v. Groom. If the language already quoted does not go further than the act construed in Brodnax v.Groom, the following, which is a part of the paragraph of the Act of 1895, quoted from, to wit, "and meeting the other current expenses of saidcounty in said years," does, in my opinion, go a bowshot further. If this language can be construed to mean "a special purpose," I am incapable of conceiving what would not be a special purpose. If these other "current expenses of the county" are not for "a special purpose," then they are unconstitutional, ultra vires, and their collection can not be enforced.

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, 76 N.C. 273, is cited as authority for this position. But this case, in my opinion, does not sustain the position of the Court. To make the case of Long v.Commissioners, supra, authority for the purpose for which it is cited by the Court it is necessary to assume the constitutionality of the act, the very question at issue. This case expressly decides that where it is unconstitutional it is ultra vires and the tax can not be collected. It is only where the tax levied is infra vires that it may be appropriated to another purpose if not needed for the purposes for which it was levied. And besides its being so decided in Long v. Commissioners,supra, it is logically so. In fact, it is a self-evident proposition, because there can be no surplus to appropriate if it can not be collected. There is a broad distinction between what may result from lawful legislation and the cause producing or creating unconstitutional legislation.

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.