Herring v. Dixon

• Decision Date: 22 March 1898
• Citation: 29 S.E. 368,122 N.C. 420
• Parties: HERRING v. DIXON, Sheriff.
• Court: North Carolina Supreme Court

29 S.E. 368

122 N.C. 420

HERRING v. DIXON, Sheriff.

Supreme Court of North Carolina

March 22, 1898

Appeal from superior court, Greene county; Allen, Judge.

Action by J. A. Herring against R. D. S. Dixon, sheriff, to enjoin the collection of a tax. From a judgment granting the injunction, defendant appeals. Reversed.

Swift Galloway, L. V. Morrill, and MacRae & Day, for appellant.

H. G Connor and S. G. Mewborn, for appellee.

CLARK J.

This action is brought to enjoin the collection of a special tax levied by the commissioners of Greene county under authority of chapter 500, Acts 1897, entitled "An act to provide for the working of the public roads of Greene, Wilson and Wayne counties." Section 1 thereof requires the boards of commissioners of said counties "in their respective joint sessions" to levy each year a special tax of 15 cents on $100 worth of property and 45 cents on the taxable poll, which taxes, "when collected, to be applied to the laying out, discontinuing, establishing, building constructing and repairing public roads and public bridges in said counties of Greene, Wilson and Wayne, under the supervision, control and management of the said respective boards of commissioners." The plaintiff, suing on behalf of himself and other taxpayers of Greene county, contends that the act is unconstitutional:

1. Because the tax has not been authorized by a majority of the qualified voters of said county. Const. art. 7, § 7 prohibits any tax to be levied or collected by a county city, or town, "except for the necessary expenses thereof, unless by a vote of the majority of the qualified voters therein." But building and repairing public bridges and roads have always been held necessary expenses. The court, in construing this section in Brodnax v. Groom, 64 N.C. 244, says: "Repairing and building bridges is a part of the necessary expenses of a county, as much as keeping the roads in order, or making new roads." In Vaughn v. Commissioners, 117 N.C. 429, 23 S.E. 354, the court says: "The cost of erecting court houses and jails, like that of building bridges and constructing public roads, is one of the necessary expenses of a county." To same purport are Satterthwaite v. Commissioners, 76 N.C. 153, Evans v. Commissioners, 89 N.C. 154, and other cases. In Long v. Commissioners, 76 N.C. 273, the court enumerates among the necessary expenses of a county "repairing county buildings, erecting bridges, building roads, caring for the poor, paying jurors," etc. There has long been a feeling that the system of working roads entirely by a levy upon labor, without any taxation upon property, was unsatisfactory in its results, and with many there has been a conviction of its unfairness. The present act is, at any rate, an outcome of what is known as the "public roads improvement" movement, which, originating, as far as this state is concerned, in a statute somewhat similar to this, enacted for the county of Mecklenburg, has, with more or less modification, been since enacted for a great many other counties; the features common to all being largely the working of the public roads by taxation in lieu of the conscription of labor, and, further, the utilization of convicts who formerly lay idle in jail. Working the roads being a necessary expense, the courts are incompetent, under the authorities, to interfere with the manner and expense of working them, unless the total levy exceeds the constitutional limitation, or the equation is not observed. Williams v. Commissioners, 119 N.C. 520, 26 S.E. 150; County Board of Education v. Commissioners of Currituck Co., 107 N.C. 110, 12 S.E. 190; Jones v. Commissioners, 107 N.C. 248, 12 S.E. 69; Barksdale v. Commissioners, 93 N.C. 472; Cromartie v. Commissioners, 87 N.C. 134; Clifton v. Wynne, 80 N.C. 145; French v. Commissioners, 74 N.C. 692; Trull v. Commissioners, 72 N.C. 388; Mauney v. Commissioners, 71 N.C. 486. In Vaughn v. Commissioners, 117 N.C. 429, 23 S.E. 354, while it was held that the commissioners could incur a debt for necessary expenses without a vote of the people, it was not held that they could levy a tax in excess of the constitutional limit to pay it without special approval of the legislature.

2. The plaintiff, however, further contends that the levy is unconstitutional because, when this special levy is added to the levy by the state and the ordinary county levy, the total exceeds $2 on the poll and 66 2/3 cents on the $100 value of property. This tax, however, is authorized by the constitution (article 5, § 6), since it has the special approval of the general assembly, and is for a special purpose,--that of raising funds by which the county can put the public roads and bridges in better condition than could be done within the constitutional limitation upon taxation. Brodnax v. Groom, supra; Williams v. Commissioners, supra; ...