dissenting: The Constitution, Article V., Sec. 1, provides: “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 to the tax on property valued at §300 in cash * * * and the State and county capitation tax combined shall never exceed two dollars on the head." It will be perceived by this that, as to limitation, the capitation tax is the standard, and a levy exceeding two dollars on $300 is invalid as to the excess, because the capitation tax, State and county, can never exceed two dollars. Opinion of Pearson, C. J., in University v. Holden, 63 N. C., 410, 412. But, as to the equation, the property tax is the standard. The Constitution says “the capitation tax shall be equal to the tax on property valued at $300." When it is required that anything shall be ‘ ‘equal to” something else, that makes the latter the standard.
The legislature always levies four kinds of taxes: the license taxes, usually called “Schedule B," and privilege taxes, usually known as “Schedule C,” the property tax, and the capitation tax. The revenue act of 1897 does this and contains at its end this provision: “All laws and clauses , of laws in conflict with this Act are hereby repealed." There is no contention that the “Schedule B" and “Schedule C" taxes of' 1897 are not substituted for “Schedule B" and “Schedule C" taxes of 1895, the latter being repealed. The legislature of 1897 further saw fit to place the tax on property at *191forty-six cents on the $100. This is in conflict with Section 3 of the Acts of 1895, Chapter 116, which places the property tax at forty-three cents ou the $100, and as completely repeals it as the “Schedule B” and “Schedule 0,” of 1897 repeal those of 1895. There can be no question of the power of the legislature to fix the property tax at forty-six cents, and the courts have no power to set it aside. The Constitution makes the property tax in no wise dependent upon the poll tax or upon anything else, and the legislature has placed these two taxes in. different and independent Sections of the Revenue Act. The power of the legislature to levy the property tax has only one limitation in the Constitution, that it shall not exceed $2 on $300 worth of property. The “Shedule B” and “Schedule C” taxes, and the property tax of 1897, being levied within the powers of the legislature, are all alike beyond the supervision of the courts, and are the only taxes of those kinds that are valid and subsisting, the taxes of those kinds levied by the previous Legislature being expressly repealed. The only tax remaining is the capitation tax. That, unlike the other two, is not left to legislative discretion, but by the express requirement of the Constitution is to be measured by the property tax. It “shall be equal to,” says the Constitution, in words too plain to be misunderstood, “the tax on $300 of property.” This provision was inserted in the Constitution of 1868 as a guarantee to the property holders of the State that they would not be oppressed by inordinate taxes laid by representatives elected by the newly enfranchised blacks, who had small property to be taxed and whose representatives might otherwise be tempted to levy excessive taxes on property (Rodman, J., 63 N. O., at page 427), and for the nearly thirty years since this breakwater was put into the Constitution, it has never been lost sight of.
The verified complaint in this action avers that, the bill *192as actually passed by both houses respected the constitutional provision, and, in fact, placed the poll tax at $1.38, but that in some unexplained manner, Section 2 of the bill as ratified had been altered to read “$1.29 poll tax.” The demurrer admits the allegation to be true, but we cannot consider it, for the majority opinion in Carr v. Coke, 116 N. C., 223, has held that, conceding such to be the fact, the courts are bound by the signatures of the speakers. "We must, therefore, take it, as beyond question, that the legislature passed the act in the form in which it is enrolled and printed — placing the property tax at forty-six cents and the poll tax at $1.29. Does that invalidate the property tax? There is not a word in the Constitution to give us power so to declare. There is not a word in that instrument making the property tax dependent upon any thing else. Indeed, the property and the capitátion tax are in different sections of the act, as usual. Nor is there anything in the Constitution to restrict the discretion, of the legislature to fix the amount of the property tax save that it must not exceed the limit of $2 on $300 of property, and that has not been done. Whence, then, has the Court the power to read into the Constitution any 'other control over the property tax, or to declare it void, except as to an excess above the limitation? As to the poll tax, the Constitution is different. It says it shall ~be equal to the property tax on $300. If it is not, then the capitation tax is unconstitutional, and we should so declare it. It is surely illogical when the legislature has levied a property tax clearly within its power, and which is not to be measured by anything, to declare it unconstitutional because another tax in another clause of the act, which must be measured by the property tax, does not comply with the standard marked out by the Constitution. .
The Constitution requires that “the General Assembly shall levy a capitation tax on every male inhabitant over twenty-*193one and under fifty years of age.” This has been done. It further provides that such capitation tax “shall be equal to the tax on property valued at $300. ’ ’ This has not been done. As the Constitution is the higher law and more powerful than a simple enactment of the legislature, it is the duty of the court to see that the Constitution is observed and to direct the Auditor, as prayed, to print in his blanks the poll tax (which the legislature did not fail to levy) at a rate equal to that which the legislature has levied on $300 of property, for the Constitution, greater than any legislative enactment, has decreed that such shall be the case as long as the Constitution itself exists. The courts cannot control the legislature in a matter resting in legislative discretion. But when that body has no discretionary power, and has fixed a standard by which something else must be measured, the courts will require conformity to the standard.
It is a rule of construction always recognized, liut res magisvaleat quam ■pereat.'*’ Applying that maxim to this very statute, no objection has' been urged as to any part thereof except that which fixes the rate of taxation. On observing that, we find that the “Schedule B” and “Schedule C” taxes and the property tax are unquestionably valid. We find that the legislature has also obeyed the constitutional mandate by levying a capitation tax. But as 1o this latter, we find that it is defective in that it does not come up to the requirement that it “shall be equal to the property tax on $300.” The simple duty asked of the court is to say to the auditor, “Obey the Constitution, and not the act of the legislature.” While placing in his blanks the certainly valid property tax of forty-six cents, the Auditor should therefore be commanded to write in the column for capitation tax the $1.38 required by the Constitution, and not the $1.29 provided by legislative enactment, an enactment which from comity to a co-ordinate *194department we would presume to be due to an inadvertence or the act of some subordinate, even if such fact did not appear in the complaint and was not admitted by the defendant. The legislature of 1897 was entrusted with fixing the rate of taxation. They were withiu their power when they fixed the property tax at forty-six cents and repealed the 1895 levy of forty-three cents. They were unmindful of the constitutional restriction if they intentionally fixed the poll tax at §1.29, and the remedy is to eou-form the rate of the levy for poll tax to §1.38, as required by the Constitution, and nota judicial repeal of the property tax of 1897, and a judicial re-enactment of the “poll tax of §1.29, and property tax of forty-three cents,” as levied by the legislature of 1895. That, levy was found insufficient in the judgment of the legislature of 1897, who repealed it by express enactment. The courts have no power to declare the property-tax levy of 1897 void, and to revive that of 1895. The tax levy of 1897 was admitted on the argument to be already largely insufficient to meet the appropriations made for public purposes. We judicially know the tax valuation of the property of the State and the number of polls. The loss of 3 cents per §100 on the property tax and 9 cents on the poll, caused by a reverter to the taxation of 1895, will cause in this year and the next an additional deficit of §150,000 unless a special session of the General Assembly should be called, at great expense, to correct the inadvertence of some clerk. When such consequences can be averted by taking the unquestionably valid levy of 46 cents made on property by the legislature, and directing the Auditor to observe the unmistakeable requirement of the Constitution by inserting under the poll tax, levied by the legislature, an amount which “shall be equal to the property tax on §300,” it would'surely seem that it should be done. It is a matter in which the *195legislature had no discretion. If it had, the court could not control it. They had a discretion as to the property tax, and therefore the court has no power to set it aside, nor call into being a property tax enacted by another legislature, and which this legislature has repealed. But as to the poll tax, when the legislature fixed the property tax, the Constitution, more powerful than the legislature, fixed the poll tax at a sum ‘‘equal to the property tax on $300.” The unconstitutionality is not in fixing the property tax, but in the rate of the poll tax. It is the latter, not the former, which should be disregarded' and set aside. To set aside the property tax of 46 cents as to which the legislature had discretionary power, and to fail to make the poll tax, as to which the legislature had no discretion, conform to the Constitution, is for the court to intervene where it has no power, and to fail to do so where it has; it is to “do those things we ought not to do and to leave undone those things we ought to do.” When the tax levy exceeds $2 on the poll, the whole tax is not unconstitutional, but only the excess over the limitation. In like manner, when the equation is not observed, the power of the court is not to set aside the whole of the tax levy nor the standard — the property tax — but to observe the Constitution by requiring the poll tax to be entered on the tax list at a rate “equal to the tax on $300 of property.”
The learned and able counsel for the defendant frankly admitíed that, if the legislature had omitted to levy any poll tax, the court could enforce the constitutional guarantee by a mandamus to the Auditor requiring him to place on the tax list the poll tax “equal to the tax laid on $300 of property.” If this were not so, the constitutional provision, instead of being a guarantee to property owners, the purpose for which alone it was placed in the organic law, would be a nullity and a delusion. If the Constitution had *196contained a provision — “the poll tax shall be ^ 1.38*? — tne court would command the Auditor to put that upon the tax list whether the legislature should repeat it in the Revenue Act or not. If the legislature should venture to put it in as “$1.29 poll tax” this would not repeal the constitutional provision, nor would it render void any other tax. So, when the Constitution requires the legislature to fix the property tax, which it does at 46 cents, then the Constitution eo mstanti fixes the poll tax at $1.38 as imperatively as if that sum were named in the Constitution. What harm can come from enforcing a constitutional provision as to a matter not left to legislative power or discretion?
Among the many cases recognizing self-executing constitutional provisions, may be cited the following: Reynolds v. Taylor, 43 Ala., 420; Miller v. Marx, 55 Ibid., 322; Woodward v. Cabaniss, 87 Ib., 328; McDonald v. Patterson, 54 Cal., 245; People v. Hoge, 65 Ib., 612; Donahue v. Graham, 61 Ib., 296; Oakland v. Hilton, Ibid., 69 Cal., 479; State v. Woodward, 89 Ind., 110; Hills v. Chicago, 60 Ill., 86; People v. Bradley, Ibid., 398; People v. McRoberts, 62 Ibid., 38; Kine v. Defenbaugh, 64 Ibid,, 291; Mitchell v. Ill., 68 Ib., 286; Law v. People, 87 Ibid., 385; Cook Co. v. Chicago, 125 Ibid., 540; Washingtonian Home v. Chicago, 157 Ill., 414; Beard v. Hopkinsville, 95 Ky., 239; Thomas v. Owens, 4 Md., 189; Beechy v. Baldy, 7 Mich., 488; Willis v. Mabon, 48 Minn., 40 (citing many other Minnesota cases); Green v. Robinson, 5 How. (Miss.), 80; Glidewell v. Hite, Ibid., 110; Brien v. Williamson, 7 How. (Miss.), 14: Schools v. Patten, 62 Mo., 444; ex parte Snyder, 64 Ib., 58; Householder v. Kansas City, 83 Ibid., 488; State v. Weston, 4 Neb., 216; State v. Babcock, 19 Ibid., 150; Bass v. Nashville, Meigs (Tenn.), 421; Yerger v. Rains, 4 Humpn (Tenn.), 259; Friedman v. Mathis, 8 Heisk. (Tenn.), 488; Johnson v. Parkersburg, 16 *197W. Va., 402; Blanchard v. Kansas City, 16 Fed. Rep., 444; McElroy v. Kansas City, 21 Ib., 257; Cooley Const. Lim. (6th Ed.), 99, 100.
The power to issue a mandamus to the State Treasurer to execute an ordinance of the convention, notwithstanding subsequent legislation, was held in Railroad v. Jenkins, 65 N. C., 173. Mandamus to the Treasurer to discharge a purely ministerial duty was recognized in Railroad v. Jenkins, 68 N. C., 502, and as to the Governor, in Cotten v. Ellis, 52 N. C., 545, and as to other officers, County Board v. State Board, 106 N. C., 81, though of course it will not issue when any discretion by the officer is to be exercised. Burton v. Furman, 115 N. C., 166; Boner v. Adams, 65 N. C., 639; Brown v. Turner, 70 N. C., 93. But when the Constitution prescribes that the poll tax is to be equal to that levied on $300 of property, and the latter is dxed by the legislature at 46 cents, as they had a right to do, then by a standing constitutional enactment, which no legislature can repeal or impair, the Auditor should be commanded to place in the same tax list $1.38 poll tax.” This is not a matter of discretion in the Auditor. Nor indeed with the legislature; the neglect or inadvertence of that body will not repeal this constitutional provision when this would not have been accomplished if they had directly so enacted. Nor will their neglect in section 2 of the act to provide the proper rate of poll tax invalidate the property tax properly, correctly and legally levied in section 3.
It is a far greater exercise of power by the court and a far greater interference with the legislative authority to declare void the property tax, which has been fixed within the undeniable limits of legislative power, and to declare in force a property tax of a previous legislature, which has been repealed, than, respecting these discretionary exercises of legislative power, merely to require the poll tax, as *198to which the legislature can exercise no discretion, to conform to the Constitution. Besides, if the court can assume the power to set aside the property tax, it must do the same as to Schedules “B” and “0,” for the legislature is presumed to exercise the power of taxation to provide for the legitimate needs of the State government, and it has fixed those schedules with knowledge that the property is 46 cents. If the property tax is reduced to 43 cents, contrary to legislative enactment, then Schedules “B” and “C” should have been higher. To judicially reenact the tax laws of 1895 is to re-establish a taxation which the legislative department has changed because unsatisfactory and insufficient, and has expressly repealed. .Nor can the court direct how the Treasurer shall prorate. the fund. The legislature .alone has power to direct the disbursement and application of funds.
There are many instancés in which the courts have required a levy of taxes which had been omitted by the legislature, and even where the legislature had passed an act against their power forbidding it. 1 Hare Constitutional Law, 647, and numerous cases there cited; Cooley on Taxation, 733, 735; High Extraordinary Remedies, Sec. 124A. The pov er to grant a mandamus to tbe Auditor to placo a tax charge on the lists sent out by him was tacitly admitted, though not expressly decided, in Belmont v. Reilly, 71 N. C., 260. The court recognized the cause of action by not dismissing the proceeding, which the many eminent counsel appearing for the defendant would surely have moved for if there had been the least doubt on the subject. The judge below correctly held that the mandamus should issue as prayed for.