Breckenridge v. County Sch. Bd.

• Decision Date: 18 November 1926
• Citation: 135 S.E. 693
• Parties: BRECKENRIDGE et al. v. COUNTY SCHOOL BOARD.
• Court: Virginia Supreme Court

135 S.E. 693

BRECKENRIDGE et al.

v.COUNTY SCHOOL BOARD.

Supreme Court of Appeals of Virginia.

Nov. 18, 1926.

Appeal from Circuit Court of Botetourt County.

Suit by one Breckenridge and others against the County School Board, to enjoin the collection of a tax. From a decree denying the relief, complainants appeal. Affirmed.

H. S. Reid, of Fincastle, for appellants.

Wm. R. Allen, of Buchanan, Benjamin Haden, of Fincastle, and Leake & Buford and Thos. L. Preston, all of Richmond, for appellee.

BURKS, J. The sole question involved in this case is the constitutional validity of the statute quoted in the margin.¹ It is assailed as in contravention of sections 53, 6.3, and 173 of the state Constitution, as well as the "due process" clauses of the federal and state Constitutions. The sections enumerated are quoted in the margin.²

Objection is made to the statute under section 53 of the Constitution, because the ground of the emergency is not stated. It is argued that section 53 of the Constitution of Virginia only applies to "general laws" and not to local, special, or private laws. The Constitution makes no such restriction. Section 53 applies to both alike. This section of the Constitution was fully considered and construed in City of Roanoke v. Elliott, 123 Va. 393, 96 S. E. 819, holding that the groundof the emergency need not be stated. No further discussion is necessary.

Under section 63 of the Constitution, it is argued that the statute provides for the assessment and collecting of taxes, and that this cannot be done by a local or private statute. This is a misapprehension of the character of the statute. It is not a revenue statute, but a bond issue statute. It makes no provision for the assessment and collection of taxes. It only provides upon what the supervisors may make a levy, and leaves the subject of the assessment and collection of the levy to the general law on the subject. There is a marked difference between making a levy and the assessment of property for the purpose of taxation. A levy is merely fixing the subject and the amount at which property is to be taxed. An assessment consists in listing the property and putting a value thereon to which the rate fixed by the levy is to be applied. It is quasi judicial. The statute does not contravene the provision of section 63 of the Constitution. County of Sussex v. Jarratt, 129 Va. 672, 106 S. E. 384.

It is the settled law of this state that, outside of the powers ceded to the federal government, the power of the General Assembly to enact statutes is without limit, except as restrained by the Constitution of the state. The Constitution of the state is a restraining instrument, and not a grant of power. If there be any restraints by implication, the restraint must be so necessary and so plainly manifest as to require the implication in order to enforce the restraints expressly imposed. If, therefore, there is any restraint in section 173 of the Constitution on the power of the Legislature to put a capitation tax on women, it must be by necessary implication, as none is expressed.

This section is mandatory in requiring a capitation tax of not exceeding $1.50 on men for state purposes. It is permissive in allowing a further tax on men for local purposes. It is restrictive in limiting the latter tax to $1, except for the restrictive provision, the Legislature might have authorized a tax for any amount for local purposes. Women are not mentioned in the section, doubtless for the reason that they did not have the elective franchise when the Constitution was proclaimed, and it was not then foreseen that they would thereafter have it. But there is no inhibition on the imposition of such a tax on women. The power of the Legislature was left unrestrained in that respect, and when the voting power was conferred on them, there was no reason why the Legislature should not impose a capitation tax on them. The fact that women were not in mind at the time did not per se impose any restraint on the powers of the Legislature, and the exercise of that power is not inconsistent with, nor repugnant to, the restrictive provision as to men. Both can stand together. Whether or not a greater tax may be imposed upon women than upon men is not a question for our decision, is not likely to arise, and it will be

time enough to decide it when, if ever, it does arise. The Legislature had the power, independent of the Constitution, to put any tax it saw fit on men and women, too, and the constitutional provision is important only so far as it acted as a restraint on that power.

The statute in question is not inhibited by section 173 of the Constitution. But even if the tax on women were inhibited, it would not affect the validity of the rest of the statute. If it were omitted altogether, the residue of the statute would be complete in itself, adequate to accomplish the manifest purpose of the Legislature, and in no wise dependent upon the part omitted. The omitted clause is a mere incident of a proviso in the statute. It is plain that it was not an inducement to its passage, nor so connected with or related to its other provisions that but for its insertion the statute would not have been enacted. Where this is true, the maxim, "utile per inutile non vitiatur, " is applied. Robertson v. Preston, 97 Va. 296, 33 S. E. 618.

In Strawberry v. Starbuck, 124 Va. 71, 77, 97 S. E. 362, 364, it is said:

"In this case the trial court held unconstitutional so much of section 2 of the act as provided for the payment of the preliminary costs by the board of supervisors of the county, in the circuit court in which the petition had been filed; and it is claimed that because of this the whole act is invalid. We cannot agree with this view. The rule is that an act may be valid in one part and invalid in another, and if the invalid is separable from the remainder, the invalid part may be ignored, if after such elimination the remaining portions are sufficient to accomplish their purpose in accordance with the legislative intent; and that only if the void portion is the inducement to the passage of the act, or is so interwoven in its texture as to prevent the statute from becoming operative in accordance with the will of the Legislature, is the whole statute invalid. Trimble's Case, 96 Va. 818, 32 S. E. 786; Robertson v. Preston, 97 Va. 300, 33 S. E. 618; Lambert v. Smith, 98 Va. 268, 38 S. E. 938; Danville v. Hatcher, 101 Va. 523, 44 S. E. 723; Campbell v. Bryant, 104 Va. 509, 52 S. E. 638."

In Town' of Narrows v. Giles County, 128 Va. 572, 588, 105 S. E. 82, 87, in speaking of section one of the act which was held to be unconstitutional, it was said:

"That this part of section one is readily separable from the residue of the charter, and that such residue is complete in itself, and in no wise dependent upon the part to be stricken out. In Robertson v. Preston, 97 Va. 296, 33 S. E. 618, it was held that, where a part of an act of Assembly is unconstitutional, that...