Collie v. Commissioners of Franklin County , 145 N.C. 170 ( 1907 )

WALKER, J., and CLARK, C. J., concurring. Plaintiff obtained from Hon. C. M. Cooke, judge resident of the Fourth Judicial District, a temporary restraining order, returnable before himself. Upon the hearing his Honor dissolved the restraining order, and plaintiff appealed. It is admitted that the questions presented by this appeal have been passed upon adversely to the contention of the defendant in two cases — Barksdale v. Comrs., 93 N.C. 473, and Board ofEducation v. Comrs. of Bladen, 111 N.C. 578. We are now asked to review those cases and disregard them as precedents in the decision of this case. As those cases involve a construction of certain sections of the Constitution relating to a question of taxation, and involve no right affecting the life, liberty, or property of the citizen, we can see no reason why they should continue to guide us if time and reflection have convinced us that they are not correct interpretations of the letter and spirit of our organic law. We are not lacking in respect for the opinion of the eminent judges who decided those cases, because we happen to differ from them in our efforts to gather from that instrument the true intent and purpose of its framers. The doctrine of stare decisis is worthy of all respect, and should be accorded due weight in the consideration (172) of all cases, but the doctrine, where it does not involve the rights of the citizen, should not be carried to that extreme where it becomes an obstruction to the carrying out of other provisions of the Constitution intended to promote the progress, prosperity, and welfare of the people. Again, it must be remembered that the cases cited are somewhat weakened as authoritative precedents by dissenting opinions in each of acknowledged power and force of reason. Section 1, Article V, of the Constitution directs the levying of a capitation tax by the General Assembly "which shall be equal on each to the tax on property valued at $300 in cash." . . . "And the State and county capitation tax combined shall never exceed $2 on the head." Section 6 of the same article enacts that "The taxes levied by the commissioners of the several counties for county purposes shall be levied in the like manner with State taxes, and shall never exceed the double of the State tax, except for a special purpose, and with the special approval of the General Assembly." Article IX of the Constitution, after declaring that "religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education should be forever encouraged," commands, in section 3 thereof, that one or more public schools shall be maintained at least four months in every year in each school district in each county of the State; and further provides that, "if the commissioners of any county shall fail to comply with the aforesaid requirements of this section, they shall be liable to indictment." At every session the General Assembly has endeavored to give effect to this section of the Constitution by providing that, if the tax levied by the State for the support of the public schools is insufficient to enable the commissioners of each county to comply with that section, they shall levy annually a special tax to supply the deficiency, to the end that the public schools may be kept open for four months, as enjoined by the Constitution. Revisal, sec. 4112. It is admitted that, in the Barksdale case, this Court held that the sections quoted from Article V are (173) a limitation upon the taxing power of the Legislature, and control Article IX; so that, if the taxes levied in accordance with that limitation and equation are insufficient to support the public schools for four months, the commissioners cannot be compelled to levy more, and that the act of the General Assembly requiring it is void. The Barksdale case was approved and followed in the Bladen case, and the matter so exhaustively discussed in the opinions of the Court and of the dissenting judges in both cases that it is difficult to add anything new to the controversy, and it is unnecessary to repeat the argument set forth in their opinions. We agree with the Court in those cases, that Article V is a limitation, generally, upon the taxing power of the General Assembly. Nor are we called upon to hold that the tax to supplement the school fund in each county, directed by the statute to be levied in case of need, may be upheld as a "necessary county expense" or as a "special tax" for a special purpose. It is unnecessary in the construction we give to the Constitution, to place our decision upon any such grounds. We hold, with Mr. Justice Merrimon in theBarksdale case, that, while this limitation upon the taxing power of the General Assembly prevails generally, it does not always prevail, and that it should not be allowed to prevent the giving effect to another article of the same instrument equally peremptory and important. We must not interpret the Constitution literally, but rather construe it as a whole, for it was adopted as a whole; and we should, if possible, give effect to each part of it. The whole is to be examined with a view to ascertaining the true intention of each part, and to giving effect to the whole instrument and to the intention of the people who adopted it. Coke Lit., 381a; Cooley Const. Lim. (7 Ed.), p. 91.

Of the two constructions which have been given it in the cases cited, we prefer to adopt that which, while properly limiting the power of taxation as to matters not embraced in the Constitution, leaves it within the power of the Legislature to give effect to one of its (174) most important and peremptory commands. While the General Assembly must regard such limitation upon its power to tax, as defined in many decisions of this Court, when providing for the carrying out of objects of its own creation and the ordinary and current expenses of the State Government, yet, when it comes to providing for those expenses especially directed by The Constitution itself, we do not think the limitation was intended to apply. Although the Legislature must observe the ratio of taxation between property and the poll provided in Article V, section 1, it is not required to obey the limitation upon the poll and the property tax, if thereby they are prevented from giving effect to the provisions of Article IX. It is better, we think, to hold that such limitation applies to legislative creations, rather than let it hinder constitutional commands. The purpose of our people to establish by taxation a general and uniform system of public schools, wherein tuition shall be free of charge to all the children of the State, and that such schools should be open every year for at least four months, is so plainly manifest in Article IX of the Constitution that we cannot think it possible they ever intended to thwart their clearly expressed purpose by so limiting taxation as to make it impossible to give effect to their directions. The reasons which induced the people to adopt Article IX are set forth in its first section, and they are so exalted and forcible in their nature that we must assume that there is no article in our organic law which the people regarded as more important to their welfare and prosperity. This conviction is greatly strengthened when we find that the only criminal offense defined and made indictable by the instrument is one created especially to enforce obedience to its specific commands in respect to the establishment of four-months schools. In commenting upon this Mr. Justice Avery well says: "It is difficult to understand why this wide departure from the usual course was made, unless we interpret it as (175) emphasizing the intent of the framers of the Constitution that the officers held subject to this unusual liability should have power coextensive with their accountability." Board v. Comrs., 111 N.C. 585.

"Schools and the means of education shall forever be encouraged," says the Constitution. Why? Because they foster religion and morality, which, with knowledge, are necessary to good government. The people expressed their willingness to incur such expense because of the great good resulting therefrom. It is hardly probable they intended by a previous enactment in the same instrument to render it impossible to carry out purposes expressed in such earnest and unmistakable language. Our people regarded the subject of education as of the highest and most essential importance, and there is no provision in our Constitution which is clearer, more direct or commanding in its terms than Article IX. As said by Judge Merrimon, "Its framers, whatever else may be said of their work, seem to have been especially anxious to establish and secure beyond peradventure a system of free popular education." Barksdale v. Comrs., 93 N.C. 483. This sentiment has grown greatly in the hearts and minds of our people since that section of the Constitution was adopted. So great has been its growth that they have in recent years adopted an educational qualification as a prerequisite to exercising the electoral franchise. Const., Art. VI, sec. 4. This places an additional obligation upon us to provide full educational facilities for the youth of the State, who otherwise may grow up in ignorance and be disqualified to take their just part in the administration of our Government.

The construction placed upon the Constitution by the Barksdale decision has been found to be an especial handicap upon the country schools. In the cities and towns, generally, special taxes are levied by a vote of the people, graded schools established, and the requirements of the Constitution more than complied with. Very many country schools cannot continue open for four months unless the tax (176) prescribed by the act is levied. The country school is the nursery of the larger part of the bone and sinew of this land. It carries a greater responsibility than the city schools in proportion to its advantages, for, as is well said by a recent writer, "It is charged not only with its own country problems, but with the training of many persons who swell the population of cities. The country school is within the sphere of a very definite series of life occupations."

Thus it is seen that Article V vitally affects all the leading purposes of the Constitution. It, therefore, becomes more imperative than ever that, if it reasonably can be done, we should give the instrument that construction which will effectuate and carry out its wise and beneficent provisions. We think we do this when we hold that the limitation contained in Article V was not intended to restrain and trammel the General Assembly in providing the means whereby the boards of commissioners of the different counties are enabled to perform the duties enjoined by the Constitution and give to the people public schools for at least four months in each year. Instead of prescribing the rate of tax to be levied for the purpose of a four-months school, the General Assembly properly and wisely left the amount to be levied to be determined by the county authorities of each county. In some counties it may not be necessary to levy any tax, while in others some tax, differing in amount, will have to be levied and collected in order to carry out the directions of the law. In levying the tax the boards of commissioners must observe the equation between property and poll fixed in the Constitution. In estimating the tax necessary beyond the limit of 66 2/3 cents on property and $2 on the poll to give a four-months term, no longer period may be considered. When the four-months requirement is fulfilled, the limit of taxation fixed in Article V necessarily takes effect, and anything beyond that would be void. The taxes levied and collected in (177) pursuance of the act constitute a special fund, supplemental to the general school fund, and must be devoted exclusively to procuring four-months terms of the public schools in those counties or districts only where, for lack of funds, they are kept open for a shorter period.

After careful consideration of the matter, we are of opinion that the judgment of the Superior Court dissolving the restraining order should be

Affirmed.