Smith, C. J.
After stating the above. It was wholly unnecessary, and attended with useless expense, to prosecute both appeals, since every exception to which the first refusal of the writ is liable lies with equal force against the last, and the same relief is attained by allowing it upon either application. We should be disposed therefore to tax the appellants with the costs of a needless record, if the merits were found to be with them upon the subject matter in dispute, and if we should direct the issuing of the injunction.
The arrest of proceedings to enforce the act is asked upon the several grounds that the form of legislation adopted, •making the operation of it dependent upon the volition of voters, is unwarranted as an attempted abnegation of legislative functions; there has not been a compliance with the
precedent condition of a written approval of a majority of the qualified voters ; and the provisions of the enactment are repugnant to the constitution.
These we propose to examine,
1. The form of legislation :
It has not been seriously questioned that the legislature may make an enactment to take effect only upon the happening of a contingent event; but it has been earnestly maintained that when the event is the expression of the popular will, ascertained by an election, it is in effect a transfer ot legislative power to the voters. In reference to this distinction, Redfield, C. J., in an elaborate opinion delivered in
State
v.
Parker,
26 Ver., 357, says, that “the distinction attempted between the contingency of a popular vote and other future contingencies is without all just founda.tion in sound policy and sound reasoning,” What differences may be found in the adjudications elsewhere, it is settled by the decision in
Manly
v.
City of
Raleigh, 4 Janes Eq,, 370, that such power may be exercised by the legislature, and it is declared that “ when it is provided that a law shall not take effect unless a majority of the people vote for it, or it is accepted by a corporation, the provision is in effect a declaration that in the opinion of the legislature the law is not expedient, unles? it be so voted for or accepted.” This principle underlies all “local option” legislation and is fully recognized and established in this state.
Caldwell
v.
Justices,
4 Jones Eq., 323.
2. The operation of the act:
The plaintiffs insist that the requisite number of voters have not given their sanction to the law, and that many of them whose names are signed to the petitions are not of the class of qualified voters of the county.
It does not appear, however, that the number of subscribing petitioners exceeds half the number of those who voted at the preceding, election of electors- of president,, and the
commissioners have adjudged the fact that the preliminary condition to the operation of the act has been fulfilled, and acting upon the decision they have entered upon the duties it has enjoined, and given public notice thereof. The proposal is to show the necessary number have not approved, by impeaching the electoral qualifications of a large number of those who have signed the petitions, upon which the action of the commissioners is based, and thus practically reverse their judgment. Is it admissible todo this? In
Simpson
v.
Commissioners of Mecklenburg,
84 N. C., 158, a similar attempt was made to go behind the determination of the commissioners as to the result of an election to ascertain the will of the voters, and it was said “that under the statute which requires the commissioners after examination of the returns to ascertain and declare the result, their decision upon the returns of an election regularly and properly held is
final and conclusive.
* * * Upon the fair and honest exercise of their judgment in determining the vote, the validity of the act is suspended, and its operation is not left to the uncertainties of a future inquiry.” This is decisive of the point, and we can see no ground upon which the present case can be distinguished from that, except that in. the latter the duty is prescribed in more explicit terms. They must act when the necessary number of qualified voters “shall by petition signify to the board of commissioners of Davie and Anson counties their approval of the proviso ions of this act.” The commissioners must therefore ascertain and determine the fact when such approval is given, and this being declared, the law by its terms takes effect and they are to proceed to the execution of its commands. It is of the highest importance that laws should be known and certain, and when they are to go into operation upon some contingent event, that event should be conclusively settled and not left open to question by any suitor who may choose to contest the fact upon which its validity depends.
This has been left to the decision of the commissioners, and their decision ought to be and in our opinion is final.
The serious inconveniences and embarrassments that will follow the recognition of the right of the citizen to controvert the truth of the declared fact, are pointed out in the recent case of
Norment
v.
Commissioners,
85 N. C., 387, and need no reiteration.
3. The method of taxation :
The constitution directs that taxes be imposed by a uniform rule upon moneys, credits and investments, and upon real and personal property according to its true value, (Art. V, § 3,) and that such as are “ levied by any county, city, town or township shall also be uniform and
ad valorem
upon all property therein.” Art. VII, § 9.
These restraints are referable to taxation of objects in which all have a common interest, and when disregarded render the levy invalid.
Young
v.
Henderson,
76 N. C., 420, and cases cited. But there is a class of taxes, or as they are often designated, local assessments, which are imposed only upon those owners of property who in respect to such ownership are to derive a special benefit in the local improvements for which they are to be expended, and are not within the restraints put upon general taxation.
After enumerating various objects for which local assessments are made, such as opening streets, constructing levees, laying pipes for drainage, Judge Cooley remarks, that to warrant the levy of local assessments, there must not only exist in the case the ordinary elements of taxation, but the object must also be one productive of special local benefits, so as to make applicable the principles upon which special assessments have hitherto been upheld.” Cooley Tax., 428.
Referring to provisions in the constitution of several states which require uniform and equal taxation on property, the same author says : “ The view generally expressed is that though assessments are laid under the taxing power
and are in a certain sense taxes, yet they are a peculiar class of taxes and
not within the meaning of that term, as it is usually employed in our constitutions and
statutes.”
Ib.,
Free access — add to your briefcase to read the full text and ask questions with AI
Smith, C. J.
After stating the above. It was wholly unnecessary, and attended with useless expense, to prosecute both appeals, since every exception to which the first refusal of the writ is liable lies with equal force against the last, and the same relief is attained by allowing it upon either application. We should be disposed therefore to tax the appellants with the costs of a needless record, if the merits were found to be with them upon the subject matter in dispute, and if we should direct the issuing of the injunction.
The arrest of proceedings to enforce the act is asked upon the several grounds that the form of legislation adopted, •making the operation of it dependent upon the volition of voters, is unwarranted as an attempted abnegation of legislative functions; there has not been a compliance with the
precedent condition of a written approval of a majority of the qualified voters ; and the provisions of the enactment are repugnant to the constitution.
These we propose to examine,
1. The form of legislation :
It has not been seriously questioned that the legislature may make an enactment to take effect only upon the happening of a contingent event; but it has been earnestly maintained that when the event is the expression of the popular will, ascertained by an election, it is in effect a transfer ot legislative power to the voters. In reference to this distinction, Redfield, C. J., in an elaborate opinion delivered in
State
v.
Parker,
26 Ver., 357, says, that “the distinction attempted between the contingency of a popular vote and other future contingencies is without all just founda.tion in sound policy and sound reasoning,” What differences may be found in the adjudications elsewhere, it is settled by the decision in
Manly
v.
City of
Raleigh, 4 Janes Eq,, 370, that such power may be exercised by the legislature, and it is declared that “ when it is provided that a law shall not take effect unless a majority of the people vote for it, or it is accepted by a corporation, the provision is in effect a declaration that in the opinion of the legislature the law is not expedient, unles? it be so voted for or accepted.” This principle underlies all “local option” legislation and is fully recognized and established in this state.
Caldwell
v.
Justices,
4 Jones Eq., 323.
2. The operation of the act:
The plaintiffs insist that the requisite number of voters have not given their sanction to the law, and that many of them whose names are signed to the petitions are not of the class of qualified voters of the county.
It does not appear, however, that the number of subscribing petitioners exceeds half the number of those who voted at the preceding, election of electors- of president,, and the
commissioners have adjudged the fact that the preliminary condition to the operation of the act has been fulfilled, and acting upon the decision they have entered upon the duties it has enjoined, and given public notice thereof. The proposal is to show the necessary number have not approved, by impeaching the electoral qualifications of a large number of those who have signed the petitions, upon which the action of the commissioners is based, and thus practically reverse their judgment. Is it admissible todo this? In
Simpson
v.
Commissioners of Mecklenburg,
84 N. C., 158, a similar attempt was made to go behind the determination of the commissioners as to the result of an election to ascertain the will of the voters, and it was said “that under the statute which requires the commissioners after examination of the returns to ascertain and declare the result, their decision upon the returns of an election regularly and properly held is
final and conclusive.
* * * Upon the fair and honest exercise of their judgment in determining the vote, the validity of the act is suspended, and its operation is not left to the uncertainties of a future inquiry.” This is decisive of the point, and we can see no ground upon which the present case can be distinguished from that, except that in. the latter the duty is prescribed in more explicit terms. They must act when the necessary number of qualified voters “shall by petition signify to the board of commissioners of Davie and Anson counties their approval of the proviso ions of this act.” The commissioners must therefore ascertain and determine the fact when such approval is given, and this being declared, the law by its terms takes effect and they are to proceed to the execution of its commands. It is of the highest importance that laws should be known and certain, and when they are to go into operation upon some contingent event, that event should be conclusively settled and not left open to question by any suitor who may choose to contest the fact upon which its validity depends.
This has been left to the decision of the commissioners, and their decision ought to be and in our opinion is final.
The serious inconveniences and embarrassments that will follow the recognition of the right of the citizen to controvert the truth of the declared fact, are pointed out in the recent case of
Norment
v.
Commissioners,
85 N. C., 387, and need no reiteration.
3. The method of taxation :
The constitution directs that taxes be imposed by a uniform rule upon moneys, credits and investments, and upon real and personal property according to its true value, (Art. V, § 3,) and that such as are “ levied by any county, city, town or township shall also be uniform and
ad valorem
upon all property therein.” Art. VII, § 9.
These restraints are referable to taxation of objects in which all have a common interest, and when disregarded render the levy invalid.
Young
v.
Henderson,
76 N. C., 420, and cases cited. But there is a class of taxes, or as they are often designated, local assessments, which are imposed only upon those owners of property who in respect to such ownership are to derive a special benefit in the local improvements for which they are to be expended, and are not within the restraints put upon general taxation.
After enumerating various objects for which local assessments are made, such as opening streets, constructing levees, laying pipes for drainage, Judge Cooley remarks, that to warrant the levy of local assessments, there must not only exist in the case the ordinary elements of taxation, but the object must also be one productive of special local benefits, so as to make applicable the principles upon which special assessments have hitherto been upheld.” Cooley Tax., 428.
Referring to provisions in the constitution of several states which require uniform and equal taxation on property, the same author says : “ The view generally expressed is that though assessments are laid under the taxing power
and are in a certain sense taxes, yet they are a peculiar class of taxes and
not within the meaning of that term, as it is usually employed in our constitutions and
statutes.”
Ib.,
446.
“ A constitutional provision that taxation shall be equal and uniform throughout the state,” observes Mr. Justice Dillon, “ does not apply to local assessments upon private property to pay for local improvements.” 2 Dill. Mun. Corp., § 617. To like effect, Burroughs Tax., § 39.
In Moore v.
Stocker,
1 Allen, 150, Hoar, J., lays down the rule in these words; “When the assessment is made upon persons in respect of their ownership of a particular species of property which receives a peculiar benefit from the expenditure of the tax, it is valid, although it does not operate upon all persons and property in the community.”
Dargan
v.
Boston,
12 Allen, 223.
In
People
v.
Mayor, &c., of Brooklyn,
4 N. Y., 410, the court declare: “ The amount of each man’s benefit in general taxation cannot be ascertained and estimated with any degree of certainty, and for that reason a property tax is adopted instead of an estimate of benefits. In local taxation however for special purposes, the local benefits may in many cases be seen, traced and estimated with reasonable certainty. At least this has been supposed and assumed to be true by the legislature, -whose duty it is to prescribe the rules on which taxation is to be apportioned, and whose determination of this matter, being within the scope of its lawful power, is conclusive. “The reasoning in this case,” is the comment of Judge Cooliíy,
“
has been generally accepted as satisfactory, and followed in subsequent cases,” which are referred to in the margin. Cooley Const. Lim., 506.
We can scarcely conceive a case more clearly within the compass of the rule than that now under consideration. The general law requires a sufficient fence to be built and kept up around all cultivated land to protect it from the depredations of stock, at a very great and unceasing expense, becom
ing the more onerous as the material used in its construction becomes scarcer and more costly. The enactment proposes to dispense with separate enclosures for each man’s land, and substitute a common fence around the county boundary to protect all agricultural lands from the inroads of stock from abroad, and the fencing in of stock owned within its limits. It creates a community of interest in upholding one barrier in place of separate and distinct barriers for each plantation, and thus in the common burden lessens the weight that each cultivator of the soil must otherwise individually bear. As the greater burden is thus removed from the land owner, he, as such, ought to bear the expense by which this result is brought about. The special interest benefited by the law is charged with the payment of the sum necessary in securing the benefit. This and no more is what the statute proposes to do, and in this respect is obnoxious to no just objection from the taxed land-proprietor, as it is free from any constitutional impediments..
4. The excess over the limits of taxation:
From what has been said, this as well as the other provisions of the constitution which prescribe the mode of taxation, are not intended to be, and are not restraints upon the species of local assessments to which the present belongs. But if it were, the objection is removed by the special approval of the general assembly given in the act itself. Const., Art. V, § 6, interpreted in
Broadnax
v.
Groom,
64 N. C., 244, and in numerous legislative acts.
In our opinion all the grounds upon which the court is asked to interpose and frustrate the execution of the enactment are untenable, and the injunction was properly refused.
We, therefore, declare there is no error,, and sustain the' ruling of His Honor. Let this be certified.
No error. Affirmed.