Perry v. Commissioners of Franklin County

• Decision Date: 21 October 1908
• Citation: 62 S.E. 608,148 N.C. 521
• Parties: PERRY et al. v. COMMISSIONERS OF FRANKLIN COUNTY.
• Court: North Carolina Supreme Court

62 S.E. 608

148 N.C. 521

PERRY et al. v. COMMISSIONERS OF FRANKLIN COUNTY.

Supreme Court of North Carolina

October 21, 1908

Appeal from Superior Court, Franklin County; W. R. Allen, Judge.

Action by John R. Perry and others against the commissioners of Franklin county. Judgment for defendants, and plaintiffs appeal. Affirmed.

From the facts stated in the complaint and admitted in the answer it appears that, under the provisions of Revisal 1905, § 4115, a special school district was created in the township of Louisburg, Franklin county, with power to levy a special tax of 20 cents on the $100 worth of property, and 60 cents on each taxable poll, to supplement the public school fund apportioned to such district, provided that such tax levy was first submitted to the qualified voters within the boundaries of said special school district, and approved by them in an election held pursuant to law; that said proposition for a special tax was ratified and approved by the majority of the qualified voters of the district, and the tax levied by the commissioners as provided by the law; that the board of commissioners on the first Monday in June, 1908, levied throughout the county of Franklin a poll tax of $2 upon each taxable poll in said county for state and county purposes and in addition to this the commissioners are proceeding to levy and collect, from the taxpayers of said district, the property tax of 20 cents on the $100, and 60 cents on the poll, making the entire poll tax levied on the taxable polls in said district $2.60. And the complaint charges that such levy to the extent of this 60 cents is unconstitutional and void, as being levied in violation of article 5, § 1, of the state Constitution. The plaintiff, John R. Perry, a resident and taxpayer of said district, and liable to payment of poll tax therein, in behalf of himself and other like taxpayers in said district instituted this action to restrain the defendants from levying tax, alleged to be illegal, on the ground indicated. On the hearing the restraining order was dissolved, and the plaintiffs excepted and appealed.

Wm. H Ruffin, for appellants.

Bickett & White and Hayden Clement, for appellees.

HOKE J.

While the question presented in this appeal is one of commanding interest and far-reaching importance to the entire state, its correct solution, in our opinion, is readily deducible from decisions of this court heretofore made, and which bear upon the subject with more or less directness. Article 5, § 1, of the Constitution, after directing that the General Assembly shall levy a capitation tax on every male inhabitant of the state over 21, and under 50, years of age and that this poll tax on each shall be equal to the tax on property valued at $300, provides that the state and county capitation tax combined shall never exceed $2 on the head. Section 2 of the article provides that the state and county capitation tax shall be applied to the purposes of education and the support of the poor, and that not more than 25 per cent. of such tax in any one year shall be appropriated to the support of the poor. Section 6 of the same article provides that the taxes levied by the board of commissioners for county purposes shall be levied in like manner as 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. Constructing these sections, the Supreme Court at the last term, in Railway v. Board of Commissioners of Mecklenburg County, 61 S.E. 690, and Railway v. Board of Commissioners of Buncombe County (N. C.) reported in 61 S.E 700, has held that this restriction on the amount of the poll tax, contained in section 1, shall be given the significance which its terms clearly import, that the state and county capitation tax combined shall never exceed $2 on the head, and that this limit fixed on the poll tax for the purposes indicated-that is, for the state and county-shall be always observed, notwithstanding that a given tax may be for some special purpose, and with the special approval of the General Assembly. And in Wingate v. Parker, 136 N.C. 369, 48 S.E. 774, this court has held that the equation of taxation established by article 5,§ 1, only applied to state and county taxation, and did not extend to municipal corporations or public quasi corporations other than counties, but that in reference to these the regulations and restrictions in regard to taxation were contained in article 7 of the Constitution, supplemented by section 4 of article 8, a section which by inadvertence seems to have been given an improper placing in article 8, instead of article 7. In the opinion, Chief Justice Clark, for the court, speaking to the question, said: "It is clear that this section applies solely to state and county taxation. It requires (1) that the General Assembly shall levy a capitation tax on every male between 21 and 50 years of age; (2) that it shall be equal to the tax laid on $300 of property at cash valuation; (3) that the county commissioners may exempt from capitation tax in special cases, on account of poverty and infirmity; and (4) that the state and county capitation tax shall never exceed $2 on the head. If this section embraces municipal taxation, such taxation could very rarely be levied at all, for in most, if not all, the counties this limit has been reached."

The opinion further quotes with approval from that of Merrimon C.J., in Jones v. Commissioners, 107 N.C. 248, 12 S.E. 69, as follows: "In Jones v. Com'rs, 107 N.C. 248, 12 S.E. 69, Merrimon, C.J., for a unanimous court holds that the equation prescribed by article 5, § 1, does not apply to municipal corporations. On page 258 of 107 N. C., on page 72 of 12 S. E., he says: 'But it is settled by many decisions of this court that it (article 5, § 1) does not establish an exclusive system or scheme of taxation, applicable and to be observed in all cases and for all purposes; that on the contrary, it applies only to the revenue and taxation necessary for the ordinary purposes of the state and the several counties thereof. *** The article does not provide or declare that the equation so established shall be of universal and exclusive application; it expressly mentions only the state and counties in connection with the subjects of revenue and taxation, and does not mention cities, towns, and other municipal corporations, or make any reference thereto, or provide for or as to them. *** And it is singular that it fails to make some reference to municipal corporations in such respect if it was intended to embrace them. That it does not so intend is more manifest in that they are expressly provided for in such respects in another distinct article of the Constitution. *** Article 7 of the Constitution is entitled "Municipal Corporations," and is exclusively devoted to that subject.' This article, in section 9, provides that 'all taxes levied by any city or town must be uniform and ad valorem upon all property in the same,' and nowhere is there any provision requiring the equation of taxation between property and polls to be observed. And in concluding the opinion, he further says, on page 263 of 107 N. C., on page 73 of 12 S. E.: 'We are therefore of opinion that the equation and limitation of taxation established by the Constitution (article 5, § 1) applies only to taxes levied for the ordinary purposes of the state and counties.' And again, at bottom of page 264 of 107 N. C., on page 74 of 12 S. E.: 'We know that it has been said obiter in several cases that the equation and limitation of taxation referred to above must be observed in levying taxes for municipal purposes, but it has not been so decided, certainly not expressly decided, nor can it be, in our judgment, without defeating the true intent reasonably appearing."' True, these decisions are directly on the question of the equation of taxation...