Shuford v. Commissioners of Lincoln Cnty.

• Decision Date: 28 February 1882
• Citation: 86 N.C. 552
• Court: North Carolina Supreme Court
• Parties: L. A. SHUFORD and others v. COMMISSIONERS OF LINCOLN COUNTY and M. THORNBURG v. COMMISSIONERS OF GASTON COUNTY.

86 N.C. 552

L. A. SHUFORD and others

v.COMMISSIONERS OF LINCOLN COUNTY and M. THORNBURG

v.COMMISSIONERS OF GASTON COUNTY.

Supreme Court of North Carolina.

February Term, 1882.

APPLICATION for an injunction heard at Spring Term 1881, of LINCOLN Superior Court, before Eure, J.

The injunction was refused and the plaintiffs appealed.

A similar application was made in Thornburg v. Commissioners of Gaston County, at chambers on the 8th of November, 1881, before Avery, J., and refused.

Messrs. Hoke & Hoke, and Battle & Mordecai, for plaintiffs .

Messrs. Schenck & Cobb, for defendants .

RUFFIN, J.

Shuford v. Commissioners of Lincoln county, and Thornburg v. Commissioners of Gaston county:

These two actions have a common object--it being to enjoin the collection of certain rates imposed, in the first case by the commissioners of Lincoln county, and in the second, by those of Gaston county, for the purpose of erecting fences around certain townships within those counties, under the act of 1879, ch. 135, known as the “Stock Law.”

It is instituted by the plaintiffs:

1. That inasmuch as that statute made the adoption of its provisions to depend upon the concurrence of “ a majority of the votes cast,” at an election held for the purpose of ascertaining the will of the citizens affected in regard thereto, it was in violation of the 7th section of article seven of the state constitution, which declares that no tax shall be levied by any county or other municipal corporation, unless sanctioned “ by a vote of the majority of the qualified voters therein.”

2. That as the tax was directed to be levied only upon the lands situate in the townships, it was in violation of the 9th section of the same article, which says that all taxes levied by any such corporation “shall be uniform and ad valorem upon all property in the same.”

This latter proposition has already received the attention of the court at this term, in the case of Cain v. Commissioners, 86 N.C. 8, and after elaborate argument, and much thought bestowed upon it, the conclusion was reached that while rates, like these now under consideration, might in some sense be rightly denominated “taxes,” still they are of a peculiar nature and do not fall within the meaning of that term, as employed in the constitution and statutes generally; that in its common acceptation the term applies only to such impositions as are levied for public revenue and the general purposes of government, and not to such assessments as are intended to defray the expenses of improvements, local in their nature.

Impositions of both sorts are alike, taxes, in that, the only power to levy them must be derived from the authority of the legislature. But still they constitute two distinct classes--those levied for carrying on the government and meeting such exigencies as are common to the whole people of the state, whether levied directly by the state authority, or through the municipal corporations by means of which the state exerts its powers, falling under the constitutional prohibition; while those assessed upon property supposed to be benefitted by some improvement, which though deemed expedient for the public are nevertheless undertaken for the especial benefit of a particular locality, are committed to the unrestrained discretion of the lawmaking power of the state, only, as I take it, that the burden imposed on each citizen's property must be in proportion to the advantage it may derive therefrom.

As shown by the authorities cited by the Chief Justice in the opinion delivered in Cain v. Commissioners, the point has been under the consideration of the courts in several of the states, whose constitutions contain...