I do not propose to discuss all of the questions involved, but merely to state my conclusions upon some of the most important points. I concurred in the dissenting opinion of Justice READE, filed at the last term of this Court, in Galloway v. Jenkins, ante 147, which case covers some of the questions involved in this. Regarding them, however, as res adjudicatae, I have not sought to disturb that opinion, but have acquiesced in its conclusions.
In this case, I am of the opinion that the first objection presented by the Chief Justice is fatal, and that the motion for a mandamus must be dismissed.
This brings us to the consideration of a still more important question, to wit; The power of taxation under the Constitution. It was contended upon the argument that Art. 5, Sec. 1, of the Constitution, establishes an equation between the tax on the poll and property, which cannot be disturbed for any purpose. The reply is, that it is not to be presumed that the sovereign intended to part with this vital power, and we cannot construe vague and uncertain language so as to produce that result.
It is apparent that this construction would effectually destroy the most cherished objects of the Constitution. It would virtually repudiate the old debt, notwithstanding the Declaration of Rights solemnly pledges the honor and good faith of the State for its payment, and proclaims to the world "that it shall be regarded as inviolable and never be questioned;" and notwithstanding the further fact that the General Assembly is required by the 4th section of the same Art. of the Constitution, to provide for the prompt and regular payment of the "interest on the public debt," and after 1880, to "lay a specified annual tax," to be devoted to the payment of the public debt. This is a solemn injunction, but not more so than many others in the Constitution. The demands of the present and future are equally as binding upon us as those of the past. I acknowledge them all to their full extent. *Page 436
The Constitution, Art. 9, Sec. 2, requires the General Assembly to "provide by taxation and otherwise, for a general and universal system of public schools, wherein tuition shall be free of charge to all the children of the State, between the ages of six and twenty-one."
This provision of the Constitution, involving as it does the honor and prosperity of the State, must become a dead letter, ignorance and vice must take the places of intelligence and virtue, and this promise made to the ear but intended to be broken in the heart, must stand as a perpetual reproach. The Constitution, it is true, in Art. 11, Sec. 3, imposes upon the General Assembly the duty of providing for the "erection and conduct of a State's Prison or Penitentiary." And in Sec. 10, of the same Art., it is declared that the General Assembly "shall provide that all the deaf mutes, the blind and insane of the State shall be cared for at the charge of the State. But the erection of the Penitentiary, now in progress, must cease; and our Asylums must drive out their afflicted inmates and close their doors upon them. Bread is asked, but a stone is given.
These beneficent provisions of the Constitution are all to go down, in order to preserve "the equation of taxation," as it is called. But the mischief does not stop even here. It is admitted that the government itself cannot exist twelve months under this construction of the Constitution. Are we to say that the framers of that instrument intended such results, and incorporated into it one provision overriding all others, and before which everything else must bow, even the government itself? By no means. The established rules of construction require us to look to the whole instrument; by doing so, in this instance, all the parts may be reconciled, and each perform its proper functions.
I conclude that the "equation of taxation," applies only to the ordinary expenses of the State government. It does not apply to the public debt.
Having discarded the "equation of taxation," except for limited purposes, I must go where the principle carries me. *Page 437
I am unable to see how a line can be drawn leaving the old debt and the debt in behalf of unfinished roads on one side, and everything else on the other. This establishment of the line appears to me to be arbitrary. I understand the term public debt, to include, not only the old debt, as it is called and known, and the debt, contracted, or to be contracted, in behalf of unfinished roads, but also the debt incurred or to be incurred by the Legislature, in the exercise of its "power (1) to contract new debts, provided par value is obtained for them, without levying any tax; and (2) to contract new debts even if its bonds are below par, provided it lay a tax in the same bill to pay the interest."
I believe there is no diversity of opinion as to the power of the Commissioners to levy taxes for county purposes.
I will not repeat the position, as it is asserted in the Opinions of the Chief Justice and Justices READE and DICK.
PER CURIAM.