Harper v. Commissioners of New Hanover County

By the provisions of chapter 290, Laws 1899, the whole of New Hanover County, "except that portion which lies between the Cape Fear River and the Northeast Cape Fear River," was placed under the "stock law," and the commissioners directed to build all necessary fences, etc. By chapter 56, Laws 1903, entitled "An act to repeal the stock law in Federal Point Township in New Hanover County," ratified 29 January, 1903, it was enacted that "from and after 1 June, 1903, the act of 1899 shall not apply to that portion of New Hanover described in said act." Section 2 of this act directs the commissioners of said county to have erected a fence where necessary, "and for defraying the expenses of constructing said fence and gates the said board may draw upon the county treasurer of said county of New Hanover for a sum sufficient therefor out of the general fund of said county, and may thereafter levy on all real estate taxable by the State and county in said territory so fenced out and collect a tax sufficient to replace the amount so drawn out of the general fund," etc. In the passage of this act the provisions of section 14, Article II of the Constitution (108) were complied with, but the proposition to make the charge in the law and levy the assessment was not submitted to the voters of the territory affected or of the county of New Hanover. On 29 January, 1903, an act was passed by the Legislature entitled "An act supplemental to an act entitled an act to repeal the stock law in Federal Point Township, New Hanover County." By this act the words "territory so fenced out" are stricken out and the word "county" inserted in lieu thereof, thus making the original act to impose upon the county commissioners the duty of levying a tax on all real property in said county. This last-named act was not passed in accordance with the requirements of section 14, Article II of the Constitution.

The plaintiffs are citizens and taxpayers of the county of New Hanover, and owners of land in Federal Point Township. They allege, and it is admitted by the answer, that in accordance with the provisions of said act the defendant commissioners "are about to build the said fence, and have actually surveyed out the lines, according to the said act, and have advertised for bids for building said fence, as authorized by said act, and will, unless restrained by this honorable court, build the said fence in accordance with the terms of said act, and levy the cost of the same against the real property situate in the territory wherein the said fence law is reestablished by said act, and will proceed to collect the same," etc. Plaintiffs allege, also, "that they will receive no benefit whatever from the said act, but the said act only restores plaintiffs and other owners of real estate in the said territory their common-law right of pasturage." To this allegation the defendant commissioners say that they have no knowledge or information sufficient to form a belief, and are advised that they are immaterial to this action.

(109) J. T. Burnett, upon his application, was permitted to come in and make himself a party defendant, and thereupon files an answer to the complaint, admitting the material facts, but denying that the acts are void, and alleging that the construction of said fence is a necessary county expense which defendant county can erect with or without legislative enactment, and levy a tax within the constitutional limits sufficient to pay for the cost of the same. He also denies the allegation that plaintiffs will receive no benefit from the construction of said fence. He admits that the commissioners have decided to assess the cost and expense of constructing the fence against the real property in the territory enclosed by the fence and not against the real property of the entire county, and that they will proceed to collect the tax on real property situated in said territory, and that they have surveyed the lines and advertised for bids, etc.

The plaintiffs pray that the defendants may be enjoined from proceeding to erect the fence and to levy the assessment as they threaten to do.

Upon the complaint a restraining order was issued, and upon the hearing before Judge Peebles the said order was continued to the hearing, and the defendants appealed.

If the enactment of 29 January, 1903, cannot be sustained as an assessment, it is clear that it cannot be sustained as an authority to levy a tax, because it is not uniform, in that it authorizes the tax to be levied only upon the real estate in the territory, whereas the Constitution, Art. VII, sec. 9, directs that "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," and this Court held, in Cobb v. Elizabeth City, 75 N.C. 1, that "all taxes, therefore, must be levied as well on personal as on real property." Hence the question, whether this (the building of fences) be a "necessary expense" within the meaning of section 4, Article V of the Constitution, is (110) not presented. But the defendants say that the tax authorized to be levied is a special assessment and comes within the principle frequently announced by this Court in regard to assessments for local improvements. The principle upon which these assessments are sustained is thus stated by Mr. Justice Dillon: "A constitutional provision that taxation shall be equal and uniform throughout the State does not apply to local assessments upon private property to pay for local improvements." 2 Dillon Mun. Corp., sec. 617, cited in Cain v.Commissioners, 86 N.C. 8. In Busbee v. Commissioners, 93 N.C. 143,Smith, C. J., says: "But these local assessments are not under all the restraints put upon the taxing power. They stand upon a different footing and rest upon the equitable and just consideration that lands rendered more valuable by the improvements ought to contribute to the expense of making the improvements, and that these expenses ought not to fall upon the entire body of the taxpayers, as well those who are not benefited as those who are benefited. The advantage is to the land, and to the persons only as owners of the land." It would seem, therefore, that whatever validity, if any, the two acts referred to have, is by virtue of the principle announced in the case cited.

We are thus brought to a consideration of the question whether they can be sustained as local assessments. The theory upon which assessment of this character have been sustained by our Court is that a benefit clearly exceptive and plainly perceived must inure to the property upon which it is imposed. A review of the several decisions of this Court sustaining the assessments for the purpose of erecting fences around common territory within which live stock shall not be permitted to run at large will show that as the greater burden is thus removed from the landowner, he, as such, should bear the expense by which this result is brought about. The whole legislation upon this subject, which has in the past few years been extended to a very large portion of the State, is based upon the theory that landowners are thereby relieved (111) of the necessity of maintaining fences around their cultivated fields, and that the establishment of a common fence around the entire county or other territory is a benefit to such lands, in that it relieves the owners of this burden. The doctrine is thus stated by Smith, C. J., inCain v. Commissioners, supra: "The general law requires a sufficient fence to be built and kept up around all cultivated land to protect it from the depredations of stock, at a very great and unceasing expense, becoming the more onerous as the material used in its construction becomes scarcer and more costly. The enactment proposes to dispense with separate inclosures for each man's land, and substitute a common fence around the county boundary to protect all agricultural lands from the inroads of stock from abroad, and a fencing-in of stock owned within its limits. It creates a community of interest in upholding one barrier in place of separate and distinct barriers for each plantation, and thus in the common burden lessens the weight that each cultivator of the soil must otherwise individually bear. As the greater burden is thus removed from the landowner, he, as such, ought to bear the expense by which this result is brought about. The special interest benefited by the law is charged with the payment of the sum necessary in securing the benefit. This, and no more, is what the statute proposes to do, and in this respect is obnoxious to no just objection from the taxed land proprietor, as it is free from any constitutional impediments." It was in accordance with this principle that the act of 1899 was passed, by which the benefits of the stock law were secured to the county of New Hanover. The legislation of 1903 is based upon an entirely different and contradictory theory. Certainly, if the benefits of the stock law are withdrawn from the landowners of Federal Point Township and they are thus required to maintain individual fences around their separate parcels of land, it is difficult to see how (112) they are benefited or their lands relieved of any burden by erecting a fence separating them from the other portions of the county. We concur with his Honor's view as set out in the judgment: "If it be true, as has been frequently held by our Supreme Court, that in changing from the old system of individual fences around cultivated fields to the new system of a common fence to protect the cultivated fields inclosed by the common fence, the lands within said fence receive a common benefit equal to or greater than the burden of keeping up said common fence, then it must necessarily follow that in abolishing the new system and restoring the old, so far as Federal Point Township is concerned, no special benefits will result to the lands in Federal Point Township to support the tax as an assessment. If the act is enforced, as the defendants are attempting to enforce it, the lands in Federal Point Township will be taxed to build a fence to keep their stock from running on the other lands of New Hanover County, and also to keep up its individual fences around cultivated fields in said township." This would seem to be conclusive in the disposition of this cause.

In addition, however, to what we have said, the supplemental act, while it may be invalid as authorizing the imposition of a tax upon the people of the whole county, is certainly valid as withdrawing from the commissioners the power to levy a tax within the territory so fenced out, leaving them without authority to levy any tax or assessment whatever to pay for building the fence. It is suggested, however, that if this be the result of the legislation, that the other portion of the act of 29 January, 1903, may be valid and impose upon the commissioners the duty of erecting the fence and paying for it out of the general fund. While it is well settled that an act may be valid in part and invalid in part, it is equally well settled that when it is manifest that the (113) act contemplates and provides for one general scheme or purpose, and the parts are so interdependent one upon the other that it cannot be supposed that the General Assembly would have enacted the law with the invalid portions eliminated, the valid portion will not be sustained. The principle is thus stated by Chief Justice Shaw, in 2 Gray, 84: "If the different parts are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant a belief that the Legislature intended them as a whole, and that if all could not be carried into effect the Legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them." Pollock v. Loan and Trust Co., 158 U.S. 601. We cannot suppose that the Legislature would have directed the expense of building this fence to be taken out of the general fund of the county and made no provision for replacing it by a special assessment imposed upon the lands, if any, that were benefited thereby. If this construction should be given the act, it is doubtful whether it could be sustained, under the decisions of this Court, as a necessary expense. The defendants suggest, however, that the tax must be sustained under the provisions of section 2824 of The Code. We concur with his Honor in holding that the purpose of this section is exactly opposite to that for which it is sought to be invoked. It is therein provided that "for the purpose of building stock-law fences the board of commissioners of the county may levy and collect a special assessment upon all real property taxable by the State and county within the county, township, or district which may adopt the stock law, but no such assessment shall be greater than one-fourth of 1 per centum of the value of said property." The territory within which the proposed assessment is to be levied has not only not adopted, but expressly rejected the stock law; hence, such an assessment could not be sustained.

We are therefore of the opinion that his Honor correctly continued (114) the injunction to the hearing.

Judgment affirmed.