Keith v. . Lockhart

ALLEN, J., dissenting. After stating the case: The Court is of opinion that his Honor correctly ruled that a county fence of the kind involved in the appeal is not a "necessary expense" within the meaning of (456) Article VII, sec. 7, of the Constitution, prohibiting counties, towns, etc., from contracting debts, etc., and levying taxes "except for its necessary expenses." While this term may not be given a fixed or arbitrary meaning, Fawcett v. Mount Airy, 134 N.C. 125, it more especially refers to the ordinary and usual expenditures reasonably required to enable a county to properly perform its duties as part of the State Government. Speaking to the subject in Jones v. Comrs.,137 N.C. pp. 579-599, the court said: "The term may be said to involve and include the support of the aged and infirm, the laying out and repair of public highways, the construction of bridges, the maintenance of public peace and the administration of public justice, expenses to enable the county to carry on the work for which it was organized and given a portion of the State's sovereignty." This being its general meaning, the term, "necessary expense," should not be extended to include an indebtedness for a line fence around a part of a county which may, at times, require an extended outlay and which may or may not be desirable in more especial reference to the interest of private ownership in particular localities. We concur, also, in his Honor's view, that the two statutes, chapters 116 and 505, Public-Local Laws 1915, passed at the same session and being inpari materia, should be construed together as one and the same law. This is not only true as a general principle of statutory construction applicable to statutes referring to the same subject, and usually whether passed at the same session or not, Cecil v. High Point, 165 N.C. 431; Greene v.Owen, 125 N.C. 219, and Wilson v. Jordan, 124 N.C. 683; but the later statute, chapter 505, in express terms, refers to and makes itself a part of the former. Considering, then, the principal features of this legislation as a whole, and dependent on approval of a popular vote, a method established *Page 520 and allowed in matters relating to municipal corporations, Cooley on Court Limitations, p. 138, we have the statute providing: 1. That no stock or free-range law shall prevail in Pender County except as to those portions of the county where the stock law prevailed prior to 1 January, 1912. 2. That the act should not become operative till a county-line fence should be constructed in those parts of the county line adjacent to stock-law territory in other counties. 3. That the commissioners, on a majority vote for "no-stock law," could levy a special tax to maintain the fence with certain restrictive limitations. And we see no reason why, as designed by this last section, if it had been otherwise valid, a majority vote for "no-stock law" should (457) not be construed and considered as an adequate and sufficient expression of approval by the voters, authorizing the commissioners to lay a tax for the specific purpose. We have held that the combining of two related propositions and taking the sense of the voters thereon by a single ballot is, as a general rule, a question for legislative determination, Winston v. Bank, 158 N.C. 512; Briggs v. Raleigh,166 N.C. 149; and there is nothing here to show that there has been an improper exercise of the power. Doubtless, if two unrelated propositions were submitted on a single ballot, and in such a manner that the one was so clearly burdensome and coercive as to amount to a suppression of the voters' will upon the other, the proposition might become one for judicial scrutiny and control; but in the present instance the two questions are directly related, and the proper and special tax for the county-line fence is an undertaking desirable not only to protect the stock-law territory of adjacent counties, but to restrain the stock of free-range territory in Pender County from straying across the county line, where they are liable to be impounded. While the voters, therefore, may be held to have approved the measure, the statute, to which he has assented, in the feature providing for a tax levy cannot be enforced by reason of the proviso therein that the tax shall not be levied on the property of natural persons in Rocky Point Township, thus clearly violating our constitutional provision, Article VII, sec. 9: "That all taxes levied by any county, city, town, or township shall be uniform and ad valorem upon all property in the same, except property exempt by the Constitution." Speaking to this question in Kyle v. Mayor, etc., of Fayetteville, 75 N.C. at page 447, Bynum, J., said: "It is the provision and purpose of the Constitution that thereafter there should be no discrimination in taxation in favor of any class, person, or interest, but that everything, real or personal, possessing value as property and the subject of ownership, *Page 521 shall be taxed equally and by uniform rule," a statement fully approved inPuitt v. Comrs., 94 N.C. 709, and many other cases. "A law, therefore, cannot exempt the property of individuals of a county, township, etc., while imposing a tax on property of same kind belonging to corporations." And the statute authorizing such a tax cannot be enforced. It is insisted for defendant that only the proviso being unconstitutional, this can be eliminated and the statute authorizing a special tax upheld. It is the recognized principle that "where a part of the statute is unconstitutional, but the remainder is valid, the parts will be separated, if possible, and that which is constitutional will be sustained." In Black on Constitutional Law the rule is said to be: "That if the invalid portions can be separated from the rest, and if, after their excision, there remains a complete, intelligible, and valid statute (458) capable of being executed, and conforming to the general purpose and intent of the Legislature as shown in the act, the same will not be adjudged unconstitutional in toto, but sustained to that extent." The position, however, is not allowed to prevail when the parts of the statute are so connected and dependent the one upon the other that to eliminate one will work substantial change to the portion which remains. Thus, in Black's work, the author further says, page 63: "And if the unconstitutional clause cannot be rejected without causing the statute to enact what the Legislature did not intend, the whole statute must fall." Speaking to the same subject in the first of the Employers' LiabilityCases, 207 U.S. pp. 463-501, the present Chief Justice White said: "Equally clear is it, generally speaking, that when a statute contains provisions which are constitutional and others which are not, effect must be given to the legal provisions by separating them from the illegal. But this applies only to a case where the provisions are separable and not dependent one upon the other, and does not support the contention that what is indivisible may be divided. Moreover, even in a case where legal provisions may be severed in order to save, the rule applies only when it is plain that the Legislature would have enacted the legislation with the unconstitutional provisions eliminated." Citing Illinois Central R. R. v.McKenonill, 203 U.S. 514. The doctrine so stated has been applied in this State in numerous cases,Greene v. Owen, 125 N.C. 212; Riggsbee v. Durham, 94 N.C. 800, and is not infrequently extended to provisos which are unconstitutional; but, recurring to the principle and the limitations upon it, the position can never include a case such as this, where "to strike out the offending proviso would result in enlarging the effect and operation *Page 522 of the body of the law." This position is very well stated in 1 Lewis Sutherland Statutory Construction (2 Ed.), sec. 306, as follows: "If by striking out a void exception, proviso, or other restrictive clause, the remainder, by reason of its generality, will have a broader scope as to subject or territory, its operation is not in accord with the legislative intent, and the whole would be affected and made void by the invalidity of such part." To strike out the proviso here would be to subject the property of the individual owners of property in Rocky Point Township to the tax, and thus would be to read into the body of the law what the Legislature had not put there and what they did not intend. It is suggested that all taxation on property in Rocky Point Township might be eliminated as unconstitutional, on the ground that the effect of the legislation we are considering is to divide Pender (459) County into two districts, the stock law and free-range territory, and to tax Rocky Point, which had to build and maintain its own fence, in order to construct a fence for the protection of the no-range territory, would be a violation of right, in that it taxed one district for the exclusive benefit of another. This, too, is a recognized principle, that, under ordinary conditions, the property of one district may not be taxed when it clearly appears that such tax is for the exclusive benefit of another. Burrett v. Mayor, 12 Cal. 76; Wells v. City of Weston,22 Mo., 384; Hutchinson v. Land Co., 57 Ark. 554. But to withdraw the property of Rocky Point Township from the effect of the act on any such principle would require the application of a like rule as to the Burgaw taxing district, which the Legislature clearly intended to be taxed, and would thus substantially alter the law as expressed and intended by the lawmaking power, and which the voters had approved. While we must hold that the unconstitutional proviso necessarily has the effect of destroying the entire portion of the statute relevant to the special tax, including theexpress legislative authority to apply any surplus money in the county treasury to building the fence, Harper v. Comrs., 133 N.C. 106, it does not follow that the entire vote on the free-range policy is to be ignored. The statute as an entirety contains, as stated, the three propositions: 1. That on approval of the popular vote, free-range law shall prevail in all that portion of Pender where the stock law did not exist prior to January, 1912. 2. That the act should not go into effect till the county-line fence was built. 3. That a special tax should be laid to raise money for the fence, etc. And under the principle, heretofore stated, that the valid portions of the law shall be sustained which are distinct and severable, we think the *Page 523 vote as to the establishment of the free-range policy should be upheld, to be put in effect whenever by appropriate and valid legislation the means are provided for building the fence, Moran v. Comrs., 168 N.C. 289; requiring another vote of the people, however, if the means are to be raised by a special tax. It may be that the building of the fence, having been sanctioned by the Legislature, has so far become a valid county charge that if at any time there are surplus funds in the county treasury arising from general taxation, and not required for current expenses of the county, the commissioners would have the power to build the fence from such funds, Comrs. v. McDonald, 148 N.C. 125; Jackson v. Comrs, ante, 379; but no such question is presented here, the facts showing that the only moneys now in the treasury are those arising from taxation for special purposes and which may not be lawfully used for any other,R. R. v. Comrs., 148 N.C. 221; and the general tax for (460) county revenue has already been levied to the constitutional limit, and no funds, therefore, are presently available for the purposes of the fence. Having held that the fence in question is not a necessary county expense, and that the special tax provided to build it may not be levied because its provisions are in violation of Article VII, sec. 7, of the Constitution, prohibiting municipalities from contracting debts, etc., or levying taxes except for necessary expenses unless approved by popular vote, the judgment below restraining the borrowing of money for the contemplated purpose is so far modified as to strike therefrom the words "until the taxes authorized by chapter 505, Public-Local Laws 1915, can be levied and collected," and, so modified, same is affirmed, the result being that On appeal of plaintiff, judgment modified and affirmed. On appeal of defendant, judgment affirmed.