Township Road Commission of No. 10 Township v. Board of Commissioners

Hoke, J. We concur in the ruling of his Honor that, on the facts ■appearing in the case agreed, the application of the plaintiff has been properly denied. *64 ■ Whatever may have been the power of township boards in matters of municipal taxation existent under Art. VII of the Constitution, more especially in sections 3, 4, 5 and 6, they are subject to the provisions of section 14 of the same article to the effect that the “Legislature shall have full power by statute to modify, change or abrogate any and all provisions of the article” except sections 7, 9 and 13, these last having no bearing on the questions presented in the controversy. Acting under the powers conferred by this section, the General Assembly, in Rev., ch. 23, sec. 1318, subsec. 3, have provided, among other things, “That no township shall have or exercise any corporate powers whatsoever unless authorized by an act of the General Assembly, to be exercised under the supervision of the board of commissioners.” By the express provisions of this statute, therefore, township boards have no corporate powers, municipal or otherwise, except those expressly conferred by legislative enactment and to the extent that the statute provides. This being the general law presently appertaining to the subject, a perusal of ch. 122, Public Laws 1913, on which plaintiff must rely in support of the relief sought by him, will disclose that it purports to provide a scheme by which townships may establish a township road system and maintain same under its separate governance and the method of raising funds for the purpose is to be by a bond issue, restricted in amount and on approval of the voters of the township. The vote is to be “For or against bonds”; the taxation authorized is to pay the interest on said bonds, and it is nowhere provided or contemplated by the act that the roads designated therein are to be worked or maintained by current taxation directly applicable to the purpose. It is contended for the appellants that while ch. 122, Laws 1913, does not authorize current taxation directly for road purposes, this power is conferred by ch. 279, Public Laws of 1917, in force at the time of the petition and election had in this instance and in which the power of direct taxation is.claimed to be fully authorized. This statute is, in terms, an amendment to that of 1913 and, construing the two together, the proper method of arriving at their true intent and meaning, Keith v. Lockhart, 171 N. C., 451, there would seem to be no sufficient authority given to work the roads by current taxation, but if the power, as expressed, be conceded, it would not avail the plaintiffs, for the last act was not passed in accord with Art. II, sec. 14, of the Constitution, and is therefore inoperative so far as conferring the power of taxation is concerned. Although the section of the Constitution just referred to — requiring that statutes for creating debts or imposing taxes shall be enacted with certain specified formalities — refers in express terms to the State, counties, cities and towns, it has been directly held that the same applies also to townships as constituent parts of counties and will render ineffective any legisla *65 tion of that character which fails to comply with its requirements. Wittkowsky v. Comrs., 150 N. C., 90. True we have held in Wagstaff v. Comrs., 177 N. C., 354; Gregg v. Comrs., 162 N. C., 479; Glenn v. Wray, 126 N. C., 730, and other cases where the question was directly considered, that when a principal statute had been enacted in accord with the constitutional provision referred to, an amendment “which does not increase the amount of the debt or the taxes to be levied or otherwise materially change the original bill will be upheld and constitute a portion of the law without the observance of the stated formalities,” but we are of opinion that an amendment of the kind presented here, which purports to change the method of maintaining a separate township road system from a bond issue restricted in amount to current taxation from year to year, indefinite as to time, might, in its practical application, work such a change in the burdens imposed that it could, in no sense, be regarded ajs immaterial within the meaning of the principle and must be set aside because it was not passed with the formalities required by the organic law. Bennet v. Comrs., 173 N. C., 625. In accord with these views, we must hold that the commissioners are without valid statutory authority to levy this tax and that plaintiff’s application for mandamus, compelling its levy, has been properly denied. Affirmed.