County of Mecklenburg v. Piedmont Fire Insurance , 210 N.C. 171 ( 1936 )

Clarkson, J.

The question involved: Are the bonds issued by the city of Winston-Salem, a municipality, liable for ad valorem taxation in Mecklenburg County when owned and held on the tax return day by the Piedmont Eire Insurance Company, a North Carolina corporation, with its principal office and place of business in Mecklenburg County, North Carolina, when the proceeds from the sale of said bonds were used to purchase land and to erect school buildings on the same, and for other public school purposes in the municipality issuing the said bonds? We think not, under the facts and circumstances of this case.

Constitution of North Carolina, Art. Y, sec. 3, in part, is as follows: “Laws shall be passed taxing, by a uniform rule, all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise; and, also, all real and personal property, according to its true value in money.”

Article VII, section 7, declares: “No county, city, town, or other municipal corporation shall contract any debt, pledge its faith, or loan its credit, nor shall any tax be levied or collected by any officers of the same except for the necessary expenses thereof, unless by a vote of the majority of the qualified voters therein.”

Article VII, sec. 9, provides: “All taxes levied by any county, city, town, or township shall be uniform and ad valorem upon all property in the same, except property exempted by this Constitution.”

The bonds in controversy were issued in accordance with the Constitution and legislative sanction given the city of Winston-Salem, a municipal corporation. In the agreed statement of facts is the following: “The proceeds from the sale of the above bonds were issued to purchase land and erect two junior high schools, to enlargement and equipment of five school buildings, to erect one new elementary school and one Negro high school, and to provide for the extension of school grounds in the city of Winston-Salem, North Carolina.”

N. C. Code, 1935 (Micbie), see. 7971 (19), in part, is as follows: “The following personal property, and no other, shall be exempted from taxation: (1) Bonds of this State, of the United States, Federal farm loan bonds, joint stock land bank bonds, and bonds of political subdivisions of this State, hereafter issued,” etc. (Italics ours.)

This same provision has been included in the statutes of the State for many years. The particular bonds under consideration were issued by the city of Winston-Salem on 15 May, 1929. This same exemption was provided for in section 306 of chapter 344 of the Public Laws of 1929, ratified on 19 March, 1929. It was section '306 of chapter 428 of the Public Laws of 1931. It was section 306 of chapter 204 of the Public Laws of 1933. Public Laws 1935, ch. 371 (p. 431), sec. 2, Property Exempt, in part: “The following property shall be exempt from taxation under this article: (2) Property passing to or for the use of the State of North Carolina, or to or 'for the use of municipal corporations within the State or other political subdivisions thereof, for exclusively public purposes,” etc. The General-Assembly has followed a uniform practice of expressly exempting an ad valorem tax to be placed upon the bonds of the State of North Carolina and of “the political subdivisions of this State.”

The city of Winston-Salem, being a political subdivision of this State, under express and clear language of the General Assembly, these bonds for school purposes were exempt from an ad valorem tax. The municipality of Winston-Salem, a political subdivision of the State, issued them and the defendant purchased them as exempt from taxation. To now tax them would, at least, savor of bad faith; but, if the exemption was unconstitutional, this could be done, as the Constitution was in existence when the bonds were issued. We cannot see how the exemption impinges the Constitution.

Const, of N. 0., Art. I, sec. 27, declares: “The people have the right to the privilege of education, and it is the duty of the State to guard and maintain that right.”

Art. IX, sec. 1: “Religion, morality, and knowledge being necessary to good government, and the happiness of mankind, schools and the means of education shall forever be encouraged. Sec. 2: The General Assembly, at its first session under this Constitution, shall provide by taxation and otherwise for a general and uniform system of public schools, wherein tuition shall be free of charge to all children of the State between the ages of six and twenty-one years. And the children of the white race and the children of the colored race shall be taught in separate public schools; but there shall be no discrimination in favor of, or to the prejudice of, either race. Sec. 3. Each county of the State shall be divided into a convenient number of districts, in which one or moro public schools shall be maintained at least six months in every year; and if the commissioners of any county shall fail to comply with the aforesaid requirements of this section, they shall be liable to indictment.”

The General Assembly of 1899 made the first appropriation of $100,000 for State schools. In 1931 (Public Laws 1931, ch. 430), under the McLean Bill — a compromise measure — all the schools were taken over by the State to be maintained for six months each year, and an appropriation of $16,500,000 each year was made. About $12,500,000 from .the general fund and 15c. ad valorem tax on land. The General Assembly of 1933 increased the school term to eight months (ch. 562, Public Laws 1933), took the tax off of land and substituted a 3c. sales tax to aid the schools. There was also an appropriation, known as the Tax Reduction Fund, of $1,500,000 for each year. In 1935 the State appropriation was $20,031,000 for the first year and $20,900,000 for the second year (Public Laws 1935, ch. 455), with a 3c. sales tax and no tax on land.

In Julian v. Ward, 198 N. C., 480 (482), citing authorities, it is said: “Under these and other pertinent sections of the Constitution, it has been held in this jurisdiction that these provisions are mandatory. It is the duty of the State to provide a general and uniform State system of public schools of at least six months in every year wherein tuition shall be free of charge to all the children of the State between the ages of six and twenty-one. It is a necessary expense and a vote of the people is not required to make effective these and other constitutional provisions in relation to the public school system of the State. Under the mandatory provision in relation to the public school system of the State, the financing of the public school system of the State is in the discretion of the General Assembly by appropriate legislation, either by State appropriation or through the county acting as an administrative agency of the State.”

The Constitution of North Carolina, Art. V, see. 5, supra, is unmistakable in its language: “Property belonging to the State or to a municipal corporation shall be exempt from taxation.”

Before the schools were taken over by the State, under the Constitution, the municipal corporations were agencies of the State — “Political subdivisions of this State.” Under the Constitution these schools in Winston-Salem are not subject to ad valorem tax, nor the bonds issued under legislative authority to build them subject to ad valorem tax.

When a State steps down from her sovereignty and goes into business enterprises to compete with individuals, then the above principle does not apply. Board of Finance Control of Buncombe Co. v. Henderson Co., 208 N. C., 569, Anno. 101 A. L. R., 783; Benson v. Johnston Co., 209 N. C., 751.

In Webb v. Port Comm., 205 N. C., 663 (674-5), it is said: “The provision in the act by which the Port Commission was created that its property and the bonds that may be issued and sold as authorized by the act shall be exempt from taxation by the State, or any of its political subdivisions, is valid. The General Assembly has the power to so provide, for the reason that the property of the Port Commission will be held, and the bonds will be issued solely for public purposes. Whatever doubt there may be as to the validity of this provision, by reason of section 3 of Article V of the Constitution of this State, must be, under well settled principles of constitutional construction, resolved in favor of its validity.” Hinton v. State Treasurer, 193 N. C., 496.

The eases cited by plaintiffs are not applicable to the facts in the present action — they do not apply to bonds for “public purposes,” such as these school bonds, but private and such as quasi-public corporations, as drainage bonds. In our research, we can find no authority in this State that “school bonds” like the present, issued under legislative authority by a municipality for building schools for free education of the children of the State, as contemplated by the Constitution, has ever been taxed. Perhaps these great schools in the cities and counties of the State would never have been built if the bonds were taxable. There are now 914 high schools and 4,505 elementary schools in our State. In the high schools 156,593 and in the elementary schools 736,055 pupils are enrolled.

Defendant bought these “school bonds” under an act of the General Assembly which exempted them from taxation. They were purchased by the defendant with this understanding. The Constitution of the State, if not in direct language, certainly by implication, allows them to be exempted, as the money was for a public purpose, to wit, schools. To now tax them would destroy confidence and would be a semblance of unfair dealing, and entail loss by defendant and all who purchased these tax-free “school bonds,” under legislative sanction. To say the least, it would impair the credit of the State, as no one would put confidence in a State which would enact a statute to exempt such school bonds from taxation, and purchased tax-free, and thereafter allow them to be taxed. Such type of dealing would be reprehensible in an individual, and the legal and moral aspect would apply to an agency of the State — the bonds of political subdivisions of this State. By taxing defendant corporation, the effect is to tax, no doubt, widows, guardians, and other fiduciaries who purchased these tax-free bonds under legislative sanction and who have done so no doubt to live off of the interest on the bonds, or to provide support for minors.

In Hinton v. State Treasurer, supra, at p. 499 (quoting from Sutton v. Phillips, 116 N. C., at p. 504), it is declared: “ While the courts have the power, and it is their duty in proper cases, to declare an act of the Legislature unconstitutional, it is a well recognized principle that the courts will not declare that this coordinate branch of the government has exceeded the powers vested in it unless it is plainly and clearly the case. If there is any reasonable doubt, it will be resolved in favor of the lawful exercise of their powers by the representatives of the people. (Italics ours.) . . . (p. 505) It cannot be said that this act is plainly and clearly unconstitutional. The doubt, if any, must be resolved in favor of the General Assembly.’ ”

For the reasons given, the judgment of the court below is

Affirmed.