Moose v. Bd. Of Com'rs Of Alexander County

• Decision Date: 09 November 1916
• Docket Number: (No. 506.)
• Citation: 90 S.E. 441
• Court: North Carolina Supreme Court
• Parties: MOOSE et al. v. BOARD OF COM'RS OF ALEXANDER COUNTY.

(172 N.C. 419)

90 S.E. 441

MOOSE et al.

v.BOARD OF COM'RS OF ALEXANDER COUNTY.

(No. 506.)

Supreme Court of North Carolina.

Nov. 9, 1916.

Additional Opinion, Nov. 23, 1916.

Clark, C. J., and Walker, J., dissenting.

Appeal from Superior Court, Alexander County; Cline, Judge.

Action by J. F. Moose and others against the Board of Commissioners of Alexander County. A restraining order issued was dissolved and plaintiffs appeal. Modified and affirmed.

This is an action brought by J. F. Moose and others, residents and taxpayers of Alexander county, against the board of commissioners of said county, to perpetually restrain said board: (1) From issuing and selling $150,000 of road bonds to Sidney Spitzer & Co., pursuant to the terms of a certain contract. (2) To perpetually restrain said board from levying a special tax upon the taxable property and polls in said county, which, when added to the general tax levy for necessary state and county purposes, would exceed 66 2/3 cents on the $100 valuation of property, and $2 on each taxable poll. (3) That said board be perpetually restrained from appropriating any funds raised by general taxation for necessary county purposes, to the payment of the principal or interest of said bonds, if issued. (4) That said board be perpetually restrained from performing the contract with Sidney Spitzer & Co., by which the board undertook to pledge the revenues of said county, derived from general taxation, to the payment of the principal and interest of said bonds. (5) That said board be perpetually restrained from contracting with Spitzer & Co. to bind future board of commissioners of said county to continue to levy special taxes upon the property and the polls in said county, in excess of that authorized by the bond act above referred to, construed in connection with article 5 of the Constitution.

The General Assembly of 1915 passed a good roads act for Alexander county (chapter 27, Pub. Loc. Laws), by the terms of which the commissioners of the county, under the restrictions and limitations contained in said act, were authorized to issue and sell $150,000 of road bonds of the county. These restrictions are as follows:

Section 1 of the act provides:

"That none of the bonds authorized by this act shall be disposed of either by sale, exchange, hypothecation, or otherwise, for a less price than their face value."

Section 17 of the act provides, among other things:

"The board of commissioners of the county * * * shall offer for sale at such time or times, such number of said bonds as may be determined by the good roads commission, * * * and the proceeds of sale of said bonds shall be delivered to the treasurer of the county."

Section 11 of the act creates the good roads commission of the county, declares it shall be composed of the board of commissioners and the board of education of the county, which, when organized, shall take the oath of office, etc. Other sections of the act place the supervision and control of the construction and repair of roads entirely in the hands of this commission.

Section 1 of the act also provides that:

"The said board of * * * commissioners may divide the said issue (of bonds) into three series."

Section 4 of the act provides:

"In order to pay the interest on said bonds, create a sinking fund for taking up said bonds at maturity * * * the board of commissioners of Alexander county * * * shall annually compute and levy, at the time of levying other county taxes, a sufficient special tax on all polls, all real estate and personal property, * * * always observing the constitutional equation between the taxes on property and the taxes on polls: Provided, there shall not be at any time levied in the county of Alexander for the purpose of road improvement * * * a tax greater than 33 1/3c. on the hundred dollars (valuation) of property and $1.00 on each poll."

The act also provides that said bonds shall not be issued until authorized by a majority vote of the qualified voters of the county at an election to be called and held for that purpose.

At an election, called and held for the purpose aforesaid, a majority of the qualified voters of the county voted in favor of the bond issue. Thereafter the board of commissioners, on the 6th day of April, 1915, advertised for the sale of said bonds in three series of $50,000 per series. No satisfactory bids having been offered for such bonds, the said board thereafter, without advertisement, on November 1, 1915, entered into a contract with Sidney Spitzer & Co., by the terms of which they undertook to sell said bonds in seven series, and to accept in payment thereof $5,000 in cash and 17 certificates of deposit of the American National Bank of Wilmington, N. C., due from 3 to 19 months thereafter, and bearing 2 per cent. interest. This contract provided that:

It "is based upon the legality of the issuing of said bonds and the right to levy a tax under the act upon which they are issued, * * * and that the terms of this sale be in accordance with the provisions of said act."

His honor dissolved the restraining order theretofore issued, and the plaintiffs appealed.

A. C. Payne, of Taylorsvllle, and Cansler & Cansler, of Charlotte, for appellants.

L. F. Klutz, of Taylorsville, W. D. Turner, of Statesville, and Tillett & Guthrie, of Charlotte, for appellee.

ALLEN, J. The tax on the poll and on property of the value of $300 is now $2 in the county of Alexander for ordinary state and county purposes, and the General Assembly has by statute authorized the county to issue bonds in the sum of $150,000 for the purpose of constructing and maintaining roads, with provision in the statute for the levy of a poll and property tax in excess of $2 to be used in paying the principal and interest of the bonds. Is this statute constitutional?

The question is presented in the most favorable aspect for sustaining the constitutionality of the statute as the bonds are to be issued for constructing roads, which is a necessary expense. Hargrave v. Commissioners, 168 N. C. 626, 84 S. E. 1044. The statute has the approval of the General Assembly, and it has been ratified by popular vote; and if, under these conditions, this statute cannot be upheld, no tax levy by the county exceeding $2 on the poll and property can be valid for any purpose.

The question is all-important and vital, involving as it does the setting aside of an act of the General Assembly, and saying to the people that they have not the power under the Constitution to impose a tax upon themselves even for a necessary expense. It may also have an important effect upon the credit of the state, and may prevent future development in the counties, because according to the report of the tax commission for the year 1914, there were then 58 counties in which the poll tax exceeded $2, and 97 in which the property tax exceeded that amount, and the total indebtedness of these counties, not including the indebtedness of special districts in the counties, was $10,196, 363.26.

Bonds cannot be issued and sold unless supported by valid tax levies, and if the statute now before us is unconstitutional, not only are the taxes invalid which are now being collected in these counties to pay the principal and interest of the indebtedness, but the people of the counties have no power to impose on themselves additional taxes if their roads and bridges are swept away by floods, or their courthouses, jails, and county homes are destroyed by fire.

If, however, these conditions arise from a proper and legitimate construction of the Constitution, we must abide the result. As was well said by Associate Justice Walker in the concurring opinion in Collie v. Commissioners, 145 N. C. 179, 59 S. E. 47:

"When the people have clearly ordained what shall be done, we, as judges, have nothing to do but to obey and to execute their will. Whether the particular provisions in question are wise or unwise is not for us to determine."

The section of the Constitution directly involved is the first section of article 5, which reads as follows:

"The General Assembly shall levy a capitation tax on every male inhabitant of the state over twenty-one and under fifty years of age, which shall be equal on each to the tax on property valued at three hundred dollars in cash. The commissioners of the several counties may exempt from capitation tax in special cases, on account of poverty and infirmity, and the state and county capitation tax combined shall never exceed two dollars on the head."

Related to this section and bearing on its construction are sections 2 and 6 of the same article, which are in the following language:

Section 2: "The proceeds of the state and county capitation tax shall be applied to the purposes of education and the support of the poor, but in no one year shall more than twenty-five per cent. thereof be appropriated to the latter purpose."

Section 6: "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 special approval of the General Assembly."

Three contentions are made as to the construction of the first section of article 5: (1) That the limitation of $2 on the poll and $2 on the property of the value of $300 applies to all taxes for all purposes, and that this amount cannot be exceeded on the poll or on property, although the tax may be levied for a special purpose and with the special approval of the General Assembly. (2) That the limitation on the poll is absolute and can never be exceeded for any purpose, but that the limitation upon property may be exceeded for a special purpose with the special approval of the General Assembly. (3) That the limitation on the poll and on the property applies only to taxes levied for the ordinary expenses of the state and county governments, and that the limitation on the poll and on property may...