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Southern Railway Company v. Cherokee County.
Adams, J. The Constitution, Article Y, section 6, provides: “The total of the State and county tax on property shall not exceed fifteen cents on the one hundred dollars value of property, except when the county-property tax is levied for a special purpose and with the special approval of the General Assembly, which may be done by special or general act: Provided, this limitation shall not apply to taxes levied for the maintenance of the public schools of the State for the term required by article nine, section three, of the Constitution: Provided *783 further, the State tax shall not exceed five cents on the one hundred dollars value of property.” It is admitted that for the year 1925 the defendant levied a tax of forty-five cents for general county purposes on property valued at one hundred dollars.
The two questions for decision are these: (1) Was the levy of forty-five cents invalid? (2) If so, was the invalidity cured by the act of 1927 ? With respect to the first question it is apparent that as the levy exceeded the limitation of fifteen cents the excess of thirty cents was imposed in disregard of the constitutional prohibition and was therefore invalid. It was so held in R. R. v. Reid, 187 N. C., 320, in which a tax of three cents had been levied to supplement the general county fund.
The appellant practically yields its objection to this position but contends that the defect has been cured by an act of the Legislature. The act, ratified on 28 February, 1927, is set out in the record.
The preamble recites the levy of taxes “for special county purposes in excess of the constitutional limitation” and the existence of doubt as to the legality of “said special taxes.” The first section of the act is as follows: “That the tax levies for the county of Cherokee for the years one thousand nine hundred and twenty-five and one thousand nine hundred and twenty-six, as resolved by the board of county commissioners on 6 July, 1925, and on the first Monday in July, one thousand nine hundred and twenty-six, respectively, be in their entirety validated and legalized, notwithstanding the failure of the county commissioners to comply with certain provisions of the Constitution and acts of the General Assembly of North Carolina, and notwithstanding any other defect or ground of invalidity whatsoever.” Public-Local Laws, 1927, ch. 201.
It will be noted that the section purports to validate a levy of taxes which was expressly forbidden by the Constitution. It is not necessary to cite authority in support of the fundamental principle that the organic law is supreme, and that an act which purports to supersede its provisions cannot be enforced.
The appellant invokes the principle that a retrospective law curing defects or confirming the exercise of power is valid in those cases in which the Legislature originally had authority to confer the power or to authorize the act. Edwards v. Comrs., 183 N. C., 58. The principle is not applicable to the facts of this case. The county commissioners in levying taxes for 1925 exceeded the constitutional limitation and the Legislature cannot validate an act which the Constitution forbids.
In R. R. v. Reid, supra, there was evidence that the commissioners levied fifteen cents for general county purposes and three cents for a special purpose and that the clerk added the two items and entered them as one item for convenience in computation. The plaintiff contended otherwise, and the cause was remanded that the facts might be ascertained.
But in the case before us the minutes of the board of com *784 missioners show conclusively that for general county purposes a tax of forty-five cents was levied; they have never been corrected because there is nothing to correct; they stand as originally recorded, and the prohibited levy remains. R. BR. v. Forbes, 188 N. C., 151.
No efficacy can be given to any provision of the legislative act which contradicts the unimpeached record of the county board; for the power to make laws is entirely distinct from the power to find facts. Judgment Affirmed.