Faison v. Commissioners

Walker, J., after stating tbe ease: 1. Tbe first position taken by tbe plaintiffs is tbat tbe election beld under tbe act of 1915 is of no effect, as a majority of tbe qualified voters did not cast their- votes “against stock law” in tbe county. Tbey contend tbat tbis is true, because tbe report of tbe canvassing board shows tbat there were 3,851 voters in tbe county and tbat only 1,774 votes were cast against a stock law, while 802 votes were cast in favor of it. But tbe registration books were revised and purged of all voters who bad died or lost the right to vote, and tbe true number of qualified voters ascertained to be 3,343 and tbe 1,730 votes cast against stock law constitute a clear majority of tbis number, tbe difference being 58 votes. Tbis result was ascertained by three impartial referees, who were selected by tbe court and tbe parties, one by each of them. Tbeir report was approved and confirmed by tbe judge, and though we may have tbe jurisdiction to review tbe finding, we have no disposition to do so, under tbe circumstances, and if we should do so we would reach tbe same conclusion, as there is no evidence before us tbat necessarily conflicts with or tbat cannot be easily reconciled with it. It, therefore, must be tbat tbe contention of tbe plaintiffs, “tbat a majority of tbe qualified voters of Duplin County did not participate in said election and vote 'against stock law,’ and thereby authorize tbe commissioners of Duplin County to contract tbe debt attempted to be authorized by said act, and levy tbe taxes therein provided for, with which to repay said debt, as required by Article YII, sec. 8, of tbe Constitution of North Carolina,” cannot be sustained. Tbe plaintiffs attack the validity of tbe legislation upon two principal grounds : 1. Tbat tbe act is void because tbe taxes thereby authorized are not uniform; tbe property and polls in one section of tbe county being taxed at a greater rate than tbe property and polls in other sections of tbe county. 2. Under tbe assessment plan tbe act is void, because tbe property situate within tbe special stock-law territories cannot in any manner be benefited by the assessment. At tbe present term we have beld, in Keith v. Lockhart, post, 451, tbat tbe building of a fence around a county under tbe circumstances as tbey appear in tbis case is not a necessary expense, and a vote of the people is required to raise the means of taxation for paying the cost of it, but tbat a vote by tbe people of tbe county in favor of free range, or, as it is termed in the statute, “no stock law,” under tbe provisions of tbe statute, is equivalent to- a vote for tbe tax, and confers authority to levy tbe tax. There were other questions decided in that case, but tbey are not pertinent to tbe matters now before us. It is a correct proposition tbat tbe property in one district may not be taxed, when it clearly appears tbat such tax is for tbe exclusive benefit [415] of another. Keith v. Lockhart, supra. The principle of uniformity in taxation forbids the imposition of a tax on one municipality or part of the State for the purpose of benefiting or raising money for another, 37 Cyc., 749, and Harper v. Comrs., 133 N. C., 106, furnishes an illustration of the same general principle when applied to a local assessment for building such fences. In that case it appeared clearly that Federal Point Township would derive no benefit whatever from the building of the fence, and was taxed-under the act of 1903 solely for the benefit of the other part of the county of New Hanover, which was stock-law territory. The General Assembly, by this and previous legislation, not necessary to be more particularly described, has conferred upon those parts of Duplin County, composing its stock-law territory, certain rights and privileges which they desired to enjoy, and which are peculiarly local in character. It was deemed wise that the question as to whether the stock law should be adopted in the entire county should be submitted to a popular vote. This was, of course, in practical effect, submitting the question as to whether in the other part of the county not then under the operation of the stock law there should be stock law or a free and open range. This was a policy in which the whole county might be interested, at least the legislature so thought, as it did not restrict the election to any one section, large or small, but extended it to all the county. If “no stock law” was adopted for that part of the county not already within stock-law bounds, it required that a county fence should be built and provided for the levy of a tax to pay for its construction and another tax upon the entire county to pay for its maintenance and repair, and for the levy of still another tax upon the stock-law territory to pay for the maintenance and repair of its own part of the fencing necessary to the enjoyment of its special privileges. This legislation should not be declared by us as unconstitutional and invalid unless upon the clearest showing that it is so, as there is a strong presumption in favor of its validity, nor unless a conflict between it and the Constitution is manifest. Lowery v. School Trustees, 140 N. C., 33; Sutton v. Phillips, 116 N. C., 502; S. v. Baskerville, 141 N. C., 811. The court is exercising a very delicate function when it is sitting in judgment upon the validity of an act of legislation. It is one that should be exercised sparingly, and the legislation should be permitted to stand unless its constitutionality is clear beyond any reasonable doubt. We are not to question the wisdom or policy of the statute under consideration, but should enforce it as it is written, unless we conclude that there is an unmistakable conflict with the organic law. 8 Cyc., 776. We may assume a fact to exist which will sustain an act, but not one which may impeach its validity, and everything must clearly appear upon which the court can declare it to be void, for a presumption exists in favor of its validity, as we have shown. Lowery v. School Trustees, 140 N. C., 33. [416] Tbe legislature, in the passage of the statute before us, has proceeded upon tbe idea tbat tbe parts of Duplin County wbieb were, before its enactment, under tbe operation of stock law were not only specially benefited thereby, but tbat they would also receive an additional benefit from tbe building and maintenance of tbe county fence, as, on tbe face of tbe statute, tbe avowed purpose in building tbe fence is to protect tbe citizens of tbe county. We bave nothing here to show tbat this is not true, but we can readily perceive bow it may be correct. It is said by defendants in their brief: “There is no discrimination in this case, for tbat tbe excepted districts bave wbat they regard as tbe benefits of stock law, and all property in sucb districts is taxed alike to secure this benefit. There is no double tax, for tbat tbe county, as a whole, pays for fencing tbe county fence, as authorized by tbe vote of tbe people, while tbe excepted districts are made stock-law territory, which must be fenced by tbe people living therein and enjoying the benefits thereof.” Tbe establishment of a separate taxing district for local purposes does not exempt its inhabitants from any charges for tbe general public good, as, for example, tbe creation of a school district in order to confer special educational facilities there which its residents would not enjoy under tbe public school system of tbe county in which tbe school district is situated. This does not relieve them from the burden of taxation for general school purposes. Judson on Taxation (1903), sec. 355, thus states tbe general theory upon wbieb this kind of taxation rests: “Special assessments for local improvements are made under tbe sovereign power of taxation, yet they are clearly distinguished from regular tax levies made under State authority for general public purposes. Taxes proper, or general taxes, proceed upon tbe theory tbat tbe cost of government is a necessity; tbat it cannot continue without means to pay its expenses; that for those means it has tbe right to compel all citizens and property within its limits to contribute; and that for sucb contribution it renders no special benefit, but only secures to tbe citizen tbat general benefit which results from tbe protection of person and property and tbe promotion of those various schemes which bave for their object tbe welfare of all. On the other hand, special assessments or special taxes are justified by the principle that when a local improvement enhances the value of neighboring property that property should pay the expense. Special assessments are made upon the assumption that a portion of the community will be specially and peculiarly benefited by the enhancement of the value of property peculiarly situated as regards the contemplated expenditure of piublic funds; and, in addition to the general levy, special contributions in consideration of the special benefit are required from the party [417] specially benefited,” citing Ill. Cent. R. R. v. Decatur, 147 U. S., 190. And, again, in section 358: “Although special assessments are usually made for public improvements in municipalities, and form one of the most perplexing problems in municipal government, their use is not limited to municipalities. Public improvements, which may be of special benefit to property in a certain locality, may be required in any part of the State, and the application be thus warranted of the principle on which special assessments rest, that the property benefited by the improvement should pay the cost. The State, therefore, has the general power not only to determine that public improvements shall be made, whenever it deems them essential to the health and prosperity of the community, but also to determine to what extent the cost of such public improvements shall be paid by the public at large and what part shall be paid by the property specially benefited thereby.” We have freely conceded that the few ought not to be taxed for the sole benefit of the many, or the whole, nor should the latter be taxed for the sole benefit of the former. It follows that a single township, or specially formed district, in a county ought not to bear the whole county expenses, neither ought the whole county be taxed for the benefit of a single township or district. Any other rule might burden those who1 are not benefited at all, and benefit those who are exempt from the corresponding burden. As said in Kansas City v. Bacon, 157 Mo., 450: “There are two kinds of taxation, both emanating from the taxing power of the Government, but each resting on a different principle, the one aimed to raise a revenue for general governmental purposes, the other to raise a fund to be devoted to a particular purpose. The one for its justification leaves out of view the question of individual benefit, merging the individual in the community; the other, for its justification, advances the theory that the individual is benefited by the improvement contemplated, and because of this benefit he must contribute to the cost.” But a tax imposed upon the stock-law districts under the act of 1915 to pay for the special benefit conferred upon the same districts as parts of the county, and another for the benefit accruing to the county or general public, do not violate those rules. The Legislature evidently thought that the stock-law districts received a double benefit, one arising from their special local privileges and advantages and the other from the building and maintenance of the county fence, which it enjoys in common with the other districts. We are not disposed to question the correctness of this view upon mere supposition of nonparticipation in both classes of benefits. Our conclusion is that there was no error in the judgment of the court. Affirmed.