Board of Education v. Commissioners.

The plaintiff board of education in its complaint alleges that the defendant board of commissioners, at their regular meeting on the first Monday in June, 1904, levied a tax of $1.58 on each taxable poll in the county for school purposes and 30 cents for the support of the poor. The State had theretofore levied 12 cents on each poll for pensions — all of which aggregated $2 on the poll, being the constitutional limit. That at the session of 1903 of the General Assembly an act was duly passed authorizing the commissioners of Macon County to levy a special tax of 30 cents on the $100 worth of property and 90 cents on each taxable poll for the purpose of working the public roads of said county. That by said act it was provided that the special taxes levied and collected pursuant to the authority thus conferred should constitute a special fund for working the roads, and that they should not be applied to any other purpose. Chapter 240, Laws 1903. The plaintiff asked that a mandamus issue commanding the defendant board to apply the proceeds of the tax levied on the polls by said act to the support of the public schools of Macon County. The defendant board demurred to the complaint. His (311) Honor, Judge Ferguson, sustained the demurrer and rendered judgment against the plaintiff for cost. Plaintiff excepted and appealed. After stating the facts: Well prepared and well considered briefs were filed in this case by counsel on each side. They have aided us in considering and deciding the interesting question presented for the first time for decision. The plaintiff's counsel say: "The decision of the case turns upon the question whether a capitation tax levied by the commissioners in pursuance of a special act of the Legislature for a special purpose, as contemplated by Article V, section 6, of the Constitution, must be appropriated in the manner prescribed in section 2 of the same article." The defendant resists the construction contended for by pointing us to section 7 of the same article.

Section 2, Article V, provides that "The proceeds of the State and county capitation tax shall be applied to the purposes of education and the support of the poor," etc.

Section 6 provides that "The taxes levied by the commissioners of the several counties for county purposes shall be levied in like manner with the State taxes and shall never exceed the double of the State tax, except for a special purpose, and with the approval of the General Assembly."

Section 7. "Every act of the General Assembly levying a tax shall state the object to which it is to be applied, and it shall be applied to no other purpose."

The plaintiff contends that by section 2 the proceeds of all capitation tax, whether derived from the general revenue act made to meet the ordinary and necessary expenses of the State and county government, or from special acts authorizing the levy of a tax for a special (312) purpose exceeding the constitutional limit, must be applied to the support of the public schools and the poor. That section 2 controls the application of all capitation tax, thus confining the language of section 7 to property tax. The defendant contends that section 2 should be confined in its application to capitation tax levied pursuant to the requirement of section 1, Article V, to meet the equation prescribed for ordinary expenses of the State and county government. That section 7 controls the application of not only all property tax, but all capitation tax levied pursuant to special laws for a special purpose. The defendant suggests that, whether this is correct as to all capitation tax, it is certainly so as to all such tax in excess of $2. It must be conceded that there is an apparent conflict between the two sections. It is our duty to reconcile them, so that, if possible, both be given force and effect. It is said by Judge Cooley: "If different portions seem to conflict, the courts must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make some words idle and nugatory." Const. Lim., 92.

Article V of the Constitution has been the subject of much controversy; the construction and reconciliation of the different sections have given the Court much difficulty. There can be no doubt that the restrictions and limitations therein have seriously embarrassed the Legislature in providing necessary revenue to meet the demands of a growing, progressive community. It is impossible to read the many opinions of the justices of this Court without being impressed with this fact. It would seem that to arrive at satisfactory, or at least workable, results, the Court has run very close to the line which separates construction from making the law. We may, however, in the light of the decisions, treat some questions as settled. By the express language of Article I, (313) section 5, it is made the duty of the General Assembly to levy a capitation tax on every male inhabitant between the ages of twenty-one and fifty, which shall be equal to the tax on property valued at $300 in cash. That such State and county tax combined shall never exceed $2 on the poll.

Mr. Justice Rodman, who was a member of the Constitutional Convention of 1868, at the June Term, 1869, of this Court, in R. R. v. Holden,63 N.C. 427, said: "It is too plain to admit of an argument that the intent of this section was to establish an invariable proportion between the poll tax and the property tax, and that as the former is limited to $2 on the poll, the latter is limited to $2 on the $300 worth of property." That, with the exceptions pointed out in Jones v. Comrs., 107 N.C. 248, and Wingate v. Parker, 136 N.C. 369 (at this term), observance of this equation is essential to the validity of all revenue or taxing laws, is shown by the uniform decisions of this Court. Russell v. Ayer, 120 N.C. 180, 37 L.R.A., 246. In Jones v. Comrs., supra, it was held that the necessity for observing the equation applied to all laws providing for revenues for the ordinary and necessary expenses of the State and county government and all special acts authorizing counties to levy a special tax to meet the necessary expenses — such as building a courthouse, a bridge, or improving the roads, etc. It was therefore essential to the validity of the tax of 30 cents on property that a tax of 90 cents on the poll be levied and collected.

We, then, have two provisions in Article V of the Constitution — one requiring "The proceeds of the State and county capitation tax to be applied to the purpose of education," etc., the other declaring that "Every act of the General Assembly levying a tax shall state the special object to which it is to be applied," etc. If sections 1 and 2 are construed together, we have an express direction to the General Assembly to levy on (314) every male inhabitant between certain ages a capitation tax, with the limit fixed at the amount of tax levied on property valued at $300, with the further limit that such capitation tax shall not exceed $2, followed by the provision that the proceeds of the capitation tax shall be applied, etc. These two sections express the purpose to require a capitation tax, to fix its limits, to establish an equation between such tax and the property tax, and the application of such capitation tax. Section 3 prescribes a rule of uniformity; section 4 deals with the State indebtedness, etc. Section 5 prescribes what property shall be exempt from taxation. Section 6 provides for the levy of county taxes. The very important command to the Legislature concludes the article with section 7, that "Every act of the General Assembly," etc. Article IX, section 2, imposes the duty upon the Legislature to provide by taxation and otherwise for a general and uniform system of public schools, etc. Article XI imposes the duty upon the General Assembly of providing for the poor, etc.

Adopting the construction placed upon the Constitution by this Court inJones v. Comrs., supra, we are constrained to hold that the act under which the tax to work the roads of Macon County was authorized necessarily provided for the capitation tax, and that its collection is lawful. We are of the opinion that in order to give full force and effect to section 7 the entire tax must be applied to the purpose for which it was levied and collected. We think that it would be doing violence to this section to say that it applied only to taxes levied on property. It would be a singular result if every tax levied by a county by permission of the General Assembly to build a courthouse, bridge, or improve the roads, should carry with it a poll tax for an entirely different purpose. General taxes are levied for the support of the schools, the rate of which is fixed with reference to the amount to be received from polls in accordance with section 1, Article V. It is to be presumed that this tax, with (315) the added amount from polls, is deemed by the General Assembly sufficient to meet the needs of the public schools. A tax is likewise levied in each county for the support of the poor, and the commissioners may, if they think proper, appropriate so much as one-fourth of the poll tax to that purpose. The provisions of section 2 of Article V are fully met and complied with by confining its application to the capitation tax levied for the ordinary expenses of the State and county. The question, it must be conceded, is not free from difficulty. In Long v. Comrs.,76 N.C. 273, Rodman, J., uses language which the plaintiff insists indicates an opinion different from that which we have expressed. It does not appear whether the tax levied for repairing the courthouse was by permission of the General Assembly. It does appear, however, that the entire levy did not exceed the constitutional limit. The question is not clearly presented. In Board of Education v. Comrs., 113 N.C. 385,Avery, J., says: "The language of the Constitution is plain and peremptory, and forbids the application of the fund arising from the tax on polls to any purposes other than to education and the support of the poor, or of any greater proportion for the maintenance of the poor than that prescribed in the instrument, until the levy reaches the limit of $2." The only question decided in that case was that the Legislature was authorized to levy a tax for the payment of pensions under the power granted in Article XI, section 7, and that it could appropriate so much of the poll tax to that purpose under the provisions of Article II, section 5, as did not exceed one-fourth of the whole. The State by general taxation and by special appropriation provides for the maintenance of public schools. The Constitution appropriates the net proceeds of all fines, forfeitures, and penalties and the proceeds of the sale of all public lands, etc. To adopt the construction of Article VII, section 5, contended for by the plaintiff, we would be compelled to write into (316) the section the words "on property," so that it would read "Every act, etc., levying a tax on property." This the Court should never do. We must construe, and not make the Constitution.

To weaken the very essential safeguard against the abuse of the taxing power found in section 7, Article V, would expose the property of the citizen to dangers which experience has shown to lurk in every form of government, because of the fact that "the power to tax involves the power to destroy." We should be slow to adopt a construction which would carry the capitation tax which must accompany every special tax for necessary purposes into a channel different from that "stated," setting at naught the peremptory command. "It shall not be applied to any other purpose." To do so would seriously embarrass the counties in meeting the ever-increasing demands of a progressive people for better roads, bridges, and public buildings. It is suggested that until the limit of $2 is reached the provision of section 2 controls and carries the capitation tax into the school and poor fund. We think it best to decide only the question before us. It is conceded that the limit had been reached in Macon County for general purposes and that the levy authorized by the special act is in excess of the limit. The judgment of his Honor sustaining the demurrer must be

Affirmed.

WALKER and DOUGLAS, JJ., concur in result.

Cited: Crocker v. Moore, 140 N.C. 433; McLeod v. Comrs., 148 N.C. 86;R. R. v. Comrs., ib., 237, 245; Moore v. Comrs., 172 N.C. 428, 445;R. R. v. Cherokee, 177 N.C. 99; Wagstaff v. Highway Commission, ib., 359;R. R. v. Comrs., 178 N.C. 457.

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