The General Assembly shall levy a capitation tax on every male inhabitant of the State over twenty-one, and under fifty years of age, which shall be equal on each to the tax on property valued at three hundred dollars in cash. The commissioners of the several counties may exempt from capitation tax in special cases, on account of poverty and infirmity, and the State and county capitation tax combined shall never exceed two dollars on the head. Con., Art. V. sec. 1. Each county shall be divided into a convenient number of districts in which one or more public schools shall be maintained at least four months in every year; and if the commissioners of any county shall fail to comply (474) with the aforesaid requirements, they shall be liable to indictment.
Art. IX, sec. 3.
The State and county taxes, among the former of which is a tax for school purposes, imposed under the act of 1881, of twelve and a half cents on property valued at one hundred dollars, and thirty-seven and a half cents on the poll, which taxes in the county of Sampson come up to the full measure of the limits fixed in the Constitution, as interpreted in numerous adjudications. There is also a special tax of small amount in excess, levied with the special approval of the General Assembly, under Art. V. sec. 6, whose legality is not drawn in question.
It is found to be impracticable to carry out the mandate to keep up the public schools in the county for four months of the year, without laying an additional tax of thirteen and one-third cents on the property, and forty cents on the poll, and accordingly the commissioners have *Page 405 made this further assessment, as they are expressly required to do by the amendatory act in regard to public schools, passed at the session in 1885, ch. 174, sec. 23. The section is in these words:
"If the tax levied by the State for the support of the public schools shall be insufficient to maintain one or more schools in each school district, for the period of four months, then the board of commissioners of each county shall levy annually a special tax to supply the deficiency for the support and maintenance of said schools, for the said period of four months or more. . . . The said tax shall be levied on all property, credits, and polls of the county, and in the assessment of the amount on each, the commissioners shall observe the constitutional equation of taxation and the fund thus raised shall be expended in the county in which it is collected, in such manner as the county board of education may determine, for maintaining the public schools for four months at least in each year."
In executing this legislative mandate to raise by assessment the additional sum required to maintain the public schools for the prescribed period under the constitutional provision which has been recited, the aggregate amount of the taxes levied is eighty-eight and one-third cents on the one hundred dollars worth of property, and two dollars (475) and sixty-five cents on the poll. Inasmuch as these provisions of the Constitution are in conflict in their application to the facts in the present case, the one commanding under a penalty to be done, that which the other withholds that means of doing, the question is presented, if they cannot, upon any reasonable construction, be reconciled, which shall prevail, and which must yield. The court below ruled that the tax levied under the act of 1885, overstepping the limits of the taxing power conferred, although necessary to a compliance with the direction as to the schools, is not warranted by the Constitution, and cannot legally be enforced. The correctness of this ruling is before us on the appeal.
While reluctant to declare a legislative act unconstitutional, and the Court will only so adjudge in a plain case, admitting of little or no doubt, yet a most imperative obligation rests upon them to uphold the fundamental law, when they are in irreconcilable conflict, and to declare the former inoperative and void.
It is an incontrovertible proposition, that when in the same instrument, a restricted authority is conferred, and an act to be done under it, to which that authority is inadequate, it is only necessary to do what can be done within the prescribed limits. The duty then, of keeping up the public schools devolved upon the commissioners, is performed when all the resources open to them are employed and exhausted in the effort to maintain them for the designated period. Within the limits of the power to tax, given the commissioners, the schools must be kept up, and *Page 406 the mandate is arrested when those limits are reached. Action beyond is not only not required, but is void if attempted. The levy finds no support in sec. 6 of Article V, for this is not one for a "special purpose and with the special approval of the General Assembly" for county purposes. The enactment is in general applicable to the whole, State, and part of the general State legislation in furnishing facilities for the education of its people. It cannot find shelter under any of the numerous (476) adjudications sustaining the power to tax, beyond the assigned restraints and in disregard of the established ratio between State and county taxation, which will be found at the foot of the section.
This form of taxation is local as well as special, and such has been the legislative interpretation of this clause in the frequent cases in which a special approval has been asked and obtained. Brodnax v. Groom, 64 N.C. 244;Simmons v. Wilson, 66 N.C. 336; Mauney v. Groom, 71 N.C. 486;Trull v. Comrs., 72 N.C. 388; French v. Comrs., 74 N.C. 692; Cromartiev. Comrs., 87 N.C. 134.
These cases settle the extent of the taxing power, when exercised by the county authorities, and allow its restraints only to be disregarded, when the tax is needed to meet obligations existing before the adoption of the Constitution, by virtue of the Constitution of the United States, and decide that the limitations do not apply to other municipal corporations erected by law.
Our decision rests upon the interpretation heretofore repeatedly given to the clause that directs the imposition of a poll tax equal to that imposed upon property valued for taxation at three hundred dollars, by which the taxes are both thus associated, and arrested, when, on the poll, they reach the maximum of two dollars. If the construction of the limit the taxing power upon property, a restraint found, as Mr. Justice Rodman says in his separate opinion at the end of volume 66 of the Reports, page 659, exists in no other State, and which has so crippled the action of the General Assembly in its course of legislation for the public good, and disables it, for want of means, to do many things which the Constitution requires, such as providing for the interest on the State debt, and a sinking fund to break through the restraints to discharge an obligation to creditors, and not impair the contracts from which they spring.
There was a propriety in fixing a limit to the poll tax, because the fund raised from this source is appropriated exclusively to two (477) objects, the support of the poor, and the providing the means of free education; but it was impracticable to foresee the needs of the State for moneys for its future management. And it is to be observed that the equation is only to determine the measure of the personal *Page 407 or poll tax, so long as it can be levied for the special objects mentioned, and up to its fixed limits.
This mode of interpretation would have avoided all the difficulties growing out of the want of power to tax, and escaped the present conflict. But we are bound by continuous adjudications to which legislation has been adjusted, and we are not free to unsettle them. But as the repugnance of the provisions under consideration is manifest, the commissioners must refrain from assessment, however necessary for schools, which pass the bounds of conferred power.
We therefore sustain the ruling of the court below.
No error. Affirmed.