Rodman v. . Washington , 122 N.C. 39 ( 1898 )

The plaintiff, a citizen and taxpayer of the town of Washington, brings this action to restrain the defendant from collecting certain taxes levied for school purposes under an act of the General Assembly of North Carolina, being chapter 343, Laws 1897. This act in terms authorizes the defendant to levy and collect a special tax, for school purposes, over and above the constitutional limitation. And under the provisions of said act the defendant has levied and is proceeding to collect twenty cents on the $100 of taxable property and sixty cents on the taxable polls within the corporate limits of said town. Plaintiff alleges that this tax is unlawful and void and asks that its collection be restrained and enjoined.

Plaintiff puts his claim for this relief upon two grounds: First, that the act under which defendant claims the right to levy and collect this tax is included in the provisions of Art. II, sec. 14, and Art. VII, sec. 7, of the Constitution of this State; that the yeas and nays were not taken and recorded on the journals of the House and Senate upon its passage as required by these sections; and for that reason the act under which defendant claims its authority to levy and collect (41) this tax is unconstitutional and void.

It was not contended on the argument for defendant that the yeas and nays had been taken and entered on the journals as required by Article II, section 14, and Article VII, section 7, of the Constitution. But it was contended that this tax is a part of the necessary expense of the defendant town government, and does not fall under the requirements of Article II, section 14, and Article VII, section 7, of the Constitution.

It not being contended by defendant that the yeas and nays were taken and entered on the journals, upon the passage of this act, providing for the levy and collection of the special tax, which is above the constitutional limitation, it is void, unless it is for the necessary expenses of the defendant. Bank v. Commissioners, 119 N.C. 214;Commissioners v. Snuggs, 121 N.C. 394; Charlotte v. Shepard, post, 602.

We have held that waterworks for the purpose of supplying a town with water was not a necessary expense of the corporation. Charlotte v. Shepard,120 N.C. 411. And we have held at this term that an electric light plant for the purpose of furnishing the town with electric lights was not a necessary part of the corporate expense of a town. Mayo v. Town ofWashington, ante, 5. And while we are in favor of public education we cannot hold that a tax over and above that provided for and required to be levied and collected by the Constitution, is a necessary corporation expenses in the administration of the defendant corporation.

It therefore follows as a logical deduction from what we have said, that that part of said act, authorizing the levy and collection of this special tax, is unconstitutional and void. (42)

But it does not follow that the other parts and provisions of said act are void, and we do not understand that the learned judge who tried the case below so decided. Russell v. Ayer, 120 N.C. 180; Gambillv. McCrady, 75 N.C. 509. The consideration of the constitutional question involved, having determined the result of the action in favor of the plaintiff, we have not considered the other question presented and argued. If there is anything in that question, it is now of no practical importance, as we take it for granted that, if another act is passed to authorize increased taxation in the town of Washington for school purposes, the parties interested in having it passed will see to it that the yeas and nays are properly taken and recorded and that proper provisions will be inserted for holding the election.

The judgment of the Court below is

Affirmed.

Cited: Comrs. v. Call, 123 N.C. 310; Comrs. v. Payne, ib., 487; Bearv. Comrs., 124 N.C. 213; Greene v. Owen, 125 N.C. 222; Edgerton v.Water Co., 126 N.C. 96; Glenn v. Wray, ib., 732; Black v. Comrs.,129 N.C. 125; Debnam v. Chitty, 131 N.C. 678, 687;Graves v. Comrs., 135 N.C. 52; Sprague v. Comrs.,165 N.C. 604; Moran v. Comrs, 168 N.C. 290;Stephens v. Charlotte, 172 N.C. 566.