Southern Ry. Co. v. Cherokee County

• Decision Date: 03 January 1919
• Docket Number: 588.
• Parties: SOUTHERN RY. CO. v. CHEROKEE COUNTY.
• Court: North Carolina Supreme Court

97 S.E. 758

177 N.C. 86

SOUTHERN RY. CO. v. CHEROKEE COUNTY.

No. 588.

Supreme Court of North Carolina

January 3, 1919

Appeal from Superior Court, Cherokee County; Long, Judge.

Action by the Southern Railway Company against Cherokee County to recover taxes paid under protest. From a judgment for plaintiff, defendant appeals. Affirmed.

Clark C.J., dissenting.

J. S Manning, of Raleigh, and Frank Nash, of Hillsboro, and J. D Mallonee, of Murphy, for appellant.

A. B. Andrews, of Raleigh, and Dillard & Hill, of Murphy, for appellee.

ALLEN J.

In the year 1915 the county of Cherokee levied and collected a tax of 2 2/3 cents in excess of 66 2/3 cents on property of the value of $100. The plaintiff paid this tax on its property under protest, and this action is brought to recover the amount so paid.

The tax was not for schools, but was levied "for the purpose of taking up a note in bank made by the predecessor board and other current expenses," under the authority of chapter 33, § 9, Laws of 1913, which is as follows:

"Sec. 9. That the board of commissioners of any county in North Carolina be, and they are hereby authorized and empowered to levy a special tax in excess of the constitutional limitation, not exceeding five (5) cents on the one hundred dollars ($100.00) valuation of all property listed for taxation in their respective counties, to provide for any deficiency in the necessary expenses and revenue of said respective counties, which may be caused by the provisions of this act."

These facts are found by his honor, and are not controverted by the defendant, and they necessitate an inquiry into the constitutionality of the act of the General Assembly.

The text-writers and the decided cases agree that it is not only within the power, but that it is the duty, of the courts in proper cases to declare an act of the Legislature unconstitutional, and this obligation arises from the duty imposed upon the courts to declare what the law is.

The Constitution is the supreme law. It is ordained and established by the people, and all judges are sworn to support it. When the constitutionality of an act of the General Assembly is questioned, the courts place the act by the side of the Constitution with the purpose and the desire to uphold it if it can be reasonably done, but under the obligation, if there is an irreconcilable conflict, to sustain the will of the people as expressed in the Constitution, and not the will of the legislators, who are but agents of the people.

The principle is well stated in 6 Ruling Case Law, 72, that--

"Since the Constitution is intended for the observance of the judiciary as well as the other departments of government, and the judges are sworn to support its provisions, the courts are not at liberty to overlook or disregard its commands, and, therefore, when it is clear that a statute transgresses the authority vested in the Legislature by the Constitution, it is the duty of the courts to declare the act unconstitutional, and from this duty they cannot shrink without violating their oaths of office. The duty, therefore, to declare the law unconstitutional in a proper case cannot be declined, and must be performed in accordance with the deliberate judgment of the tribunal in which the validity of the enactment is directly drawn in question."

The first exercise of this power in this state was in 1787, in Bayard v. Singleton, 1 N.C. 5, and one of the latest was in 1912, in Commissioners v. Webb, 160 N.C. 594, 76 S.E. 552, in which an act was held unconstitutional by the unanimous opinion of the court, written by the present Chief Justice.

In Sutton v. Phillips, 116 N.C. 504, 21 S.E. 968, in an opinion written by Justice Clark, the court says:

"While the courts have the power, and it is their duty, in proper cases to declare an act of the Legislature unconstitutional, it is a well-recognized principle that the courts will not declare that this co-ordinate branch of the government has exceeded the powers vested in it unless it is plainly and clearly the case;"

and this language was approved and affirmed in the case of In re Watson, 157 N.C. 349, 72 S.E. 1049.

In 1913 an act of the General Assembly was declared to be unconstitutional in Asbury v. Albemarle, 162 N.C. 248, 78 S.E. 146, 44 L. R. A. (N. S.) 1189, and in Sewerage Co. v. Monroe, 162 N.C. 275, 78 S.E. 151; and between these cases, running from the first volume of our Reports to the 162d, covering a period of 125 years, there could be cited 50 or more cases in which acts of the General Assembly have been declared unconstitutional, and we find no judicial opinion to the contrary.

De Tocqueville, the eminent French philosopher, speaking of our Constitution and of the powers of the courts, says, in Democracy in America, p. 98 et seq.: "An American Constitution is not supposed to be immutable, as in France, nor is it susceptible of modification by the ordinary powers of society, as in England. It constitutes a detached whole, which, as it represents the determination of the whole people, is no less binding on the legislator than on the private citizen, but which may be altered by the will of the people in predetermined cases, according to established rules. In America the Constitution may therefore vary, but as long as it exists it is the origin of all authority, and the sole vehicle of the predominating force. * * *

In the United States the Constitution governs the legislator as much as the private citizen; as it is the first of laws, it cannot be modified by a law, and it is therefore just that the tribunals should obey the Constitution in preference to any law. This condition is essential to the power of the judicature, for to select that legal obligation by which he is most strictly bound is the natural right of every magistrate. * * *

I am inclined to believe this practice of the American courts to be at once the most favorable to liberty as well as to public order."

We must, then, examine the sections of the Constitution relating to taxation, for the purpose of seeing if the General Assembly has transcended the limitations on its powers to be found in that instrument.

Article 5, § 1, is 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."

This section establishes the equation between property and the poll, and limits the power to levy state and county taxes on property to $2 on property of the value of $300, or 66 2/3 cents on $100.

"It is too plain to admit of an argument that the intent of this section was to establish an invariable proportion between the poll tax and the property tax, and that as the former is limited to $2 on the poll, so is the latter to $2 on the $300 valuation of property."

This was said by Rodman, J., a member of the convention which framed the Constitution, in R. R. v. Holden, 63 N.C. 427.

This section commands two things:

"(1) That the poll tax shall always be equal to that on $300 valuation of property; this has been called the equation of taxation.

"(2) That the state and county poll tax shall not exceed $2. This fixes the limit of taxation on polls, and consequently on property.

"These two directions are equally definite and positive; they are in no wise inconsistent with each other; it is impossible that one has any more favor or sanctity than the other, merely because it comes earlier or later in the sentence; they must be equally binding on the Legislature." Rodman, J., in Winslow v. Weith, 66 N.C. 432, 656.

"It is well settled that for the ordinary expenses of government, both state and county, the first section of article 5 of the Constitution places the limit of taxation and preserves the equation between the capitation and the property tax--the capitation tax never to exceed $2, and the tax upon property valued at $300 to be confined within the same limit." Board of Education v. Com'rs, 111 N.C. 580, 16 S.E. 622, 18 L. R. A. 850.

"The taxes which the commissioners are empowered to levy have their limitations in the Constitution, and these cannot be exceeded 'except for a special purpose and with the special approval of the General Assembly.' Const. art. 5, §§ 1 and 6. The construction of these clauses has been fixed by a series of decisions, from one of which (French v. Commissioners of New Hanover, 74 N.C. 692) we extract the emphatic declaration of Bynum, J.: 'It admits of no dispute now that taxation for state and county purposes combined cannot exceed the constitutional limitation for their necessary expenses and new debts.' Trull v. Commissioners of Madison, 72 N.C. 388; Clifton v. Wynne, 80 N.C. 145; Mauney v. Commissioners of Montgomery, supra ." Cromartie v. Commissioners, 87 N.C. 139.

These authorities establish beyond controversy that the tax is illegal under section 1 of article 5, because it exceeds the limitation on state and county taxes; and the defendant, if it has any standing in court, must rely on section 6 of article 5, which permits the county commissioners to exceed the constitutional limitation in section 1 "for a special purpose, and with the special approval of the General Assembly."

These two sections must be considered and read together with the purpose in view of giving effect to both, and a construction must be avoided which will make one destructive of the other which would be the result if the commissioners...