concurring: This appeal involves a constitutional question of much importance and, while I concur in *199tbe judgment of tbe court, I deem it not improper that I should state briefly my reasons for so concurring. .
Article Y., Sec. 1, of tbe Constitution of N. C., provides that, “Tbe G-eneral Assembly shall levy a capitation tax on every male inhabitant of tbe State over 21 and under 50 years of age, which, shall be equal on each to a tax on property valued at $300 in cash, * * * and the State and county capitation tax combined shall never exceed $2 on the head.”
The legislature of 1897, in an “Act to raise Revenue,” enacted that ‘ con each taxable poll, or male, between the ages of 21 and 50 years, * * * there shall be annually levied and collected a tax of $1.29. And in the next section of the same Act it is provided that “there shall be levied and collected annually an ad valorem tax, * ' * * making a tax of 46 cents on every $100 value” of property in the State. This presents the question for our consideration and determination.
The Constitution says the poll tax shall be equal to the ad valorem tax on $300 valuation of property — -equal to-no more and no less; or you may turn it over and say the ad valorem tax on $300 valuation of property shall be equal to, no more, no less, than the tax on one poll, and you have precisely the same result--the equilibrium established by the Constitution between taxable property and taxable polls. They must be absolutely equal. In this Act the poll tax is fixed at $1.29. This is plainly written in the Act and cannot be construed to mean anything else, as it refers to nothing else and depends upon nothing else. The property tax is as certainly fixed by the Act as is the .poll tax. It is declared that this tax shall be 46 cents on the $100 valuation of property. Three times 46 cents is $1.38: and as $1.29 is not equal to $1.38, the equation required by Article Y., Sec. 1 ,of the Constitution has not been *200observed. These provisions of the A ot, and Article Y., Sec. 1, of the Constitution do not stand together. They are in conflict, and one or the other must give way; and tbe Constitution being the superior, the legislative Act must give way. Then what shall we do w hen v\ e find an Act of the legislature in conflict with the provisions of the Constitution? What can we do but to declare it void and of no effect? We find that this is what was done in University v. Holden, 63 N. C., 413; Barnes v. Barnes, 53 N. C., 366; Hoke v. Henderson, 15 N. C., 1; and in every case to be found in the judicial history of this State. I do not hesitate to say that not one can be found where the court has not declared the Act, or that part of it found to be in violation of the Constitution, to be void.
But in this case it is contended, to do this — to declare this part of the Act void — to do what every court in this State without a single exception has done, “is judicial legislation.” And, as I am free to admit, indeed, I declare that we have no power to legislate. Then, as we cannot legislate the offending act into constitutional shape, and cannot declare it void without “judicial legislation,” what can we do? Our mouths are closed, and we should be as silent as the tomb. This contention would utterly destroy the powers of the court on any constitutional question. I can agree to no such position.
But, again, it is contended that the Constitution requires that the equation between the poll tax and the ad valorem tax on $300 should be preserved and that, as this has not been done in the Act of 1897, this court should proceed to write into the Act $1.38 on the poll instead of $1.29. And it is contended that this would uot be “judicial legislation,” while it would be judicial legislation to declare it .void. I must again say that I cannot assent to this proposition. To assent to these two propositions — that to de*201clare the Act -void would be judicial legislation, but for us to make the poll tax $1.38 instead of $1.29 would not be judicial legislation — would be to destroy every idea of logical deduction I have ever had.
It is contended that the property tax is the standard and the poll tax must be made to conform to this. Chief Justice Pearson, in University v. Holden, supra, says just the contrary — that the poll tax is the standard by which the equation is to be fixed, What more constitutional warrant have we for saying the property tax governs the poll, than we have for saying the poll governs the property? . If the tax on the poll shall be equal to the tax on $300, why does it not equally follow that the tax on $300 shall be equal to the tax on one poll? Judge Pearson thought so in University v. Holden, supra, and I can see no reason why each is not equally dependent upon the other.
But suppose this contention is correct — that the property tax governs. What difference does it make? They are still in conflict with the Constitution, just the same. And we have no more power to change and amend the A.ct if the property tax governs than we would have if the poll tax governed. The result is the same, whether regulated by one or the other — a violation of the Constitution.
It is contended that, if the court declares Sections 2 and 3 of the Act of 1897 unconstitutional and void, this destroys and renders the whole Act void. I have always understood the law to be otherwise; that it was declared by this court as early as the 4 N. C., 428, in Berry v. Haines, that one or more sections of an Act might be unconstitutional and void, and the rest of the Act constitutional and valid. This opinion has been followed and approved in McCubbins v. Barringer., 61 N. C., 554, Johnson v. Winslow, 63 N. C., 552, and-in other cases.
*202It is further contended that Sections 2 and 3, though unconstitutional, repeal the corresponding sections of the Revenue Act of 1895, and the court cannot by “judicial legislation” re-enact that part of the Act of 1895. I most thoroughly agree to the proposition that this court cannot legislate the Act of 1895 or any other act into life, that has been repealed. The court, as I maintain, cannot legislate at all. But if the Act of 1895, or any part of it, has not been repealed, it is in force, not by judicial legislation of this court, but by force of legislative legislation. The Act of 1895 is in force unless it has been repealed. The only Act that it is contended repeals the Revenue Act of 1895, is the Revenue Act of 1897. This Act of 1897 repeals all Acts and clauses of Acts in conflict with the provisions of the Act of 1897. And I admit that sections 2 and 3 of the Revenue Act of 1897 are in terms, in conflict with the corresponding sections of the Act of 1895. And if these sections in the Act of 1897 are law, then I admit the corresponding sections of the Act of 1895 are repealed, and that it would be a gross and flagrant act of “judicial legislation” for this court to “re-enact them.” But this all depends upon the fact as to v hether Sections 2 and 8 in the Revenue Act of 1897 are or ever have been law.
If they are unconstitutional, they are absolutely void, are not, and never have been, any part of the law of this State.
Mr. Cooley says: “Indeed the term unconstitutional law, as employed in American jurisprudence, is a misnomer and implies a contradiction: that enactment which is opposed to the Constitution being in fact no law at all.” Cooley Const. Lim. 6th Ed., p. 5. Therefore, Sections 2 and 3 of the Revenue Act of 1897 never have been the law. They have not and cannot repeal any law heretofore enacted. And Sections 2 and 3 of the Revenue *203Act of 1895 are still the law by virtue of the legislature, and not by any judicial legislation on the part of this court.
But it is further contended that even if Sections 2 and 3 of the Revenue Act of 1895 be re-enacted and declared in force, there would be a loss of revenue to the State, estimated from §50,000 to §150,000 annually. I know the same amount of revenue cannot be raised under Sections 2 and 3 of the Revenue Act of 1895, that could have been raised under Sections 2 and 3 of the Revenue Act of 1897, if the poll tax had been put at §1.38 so as to make the Act constitutional. But I have no means of knowing what the difference would be, and, for the purposes of my opinion in this case, 1 do not want to know. I cannot allow my judgment upon a constitutional question to depend upon the amount of revenue an act will or will not produce. This kind of argument was brought to bear upon Chief Justice Ruffin in the now celebrated case of Hoke v. Henderson, supra, to which that great judge replied as follows : “To a court, the impolicy, the injustice, the unreasonableness, the severity, the cruelty of a statute by themselves merely, are and ought to be urged in vain. The judicial function is not adequate to the application of those principles, and is not conferred for that purpose. It consists in expounding the rules of action prescribed by the legislature, and when they are plainly ex pressed, or plainly to be collected, in applying tnem honestly to controversies arising under them, between parties, without regard to the parties or the consequences.” “In the Act under consideration, as far as it concerns the controversy between these parties, there is no ambiguity; the words are plain, the intention unequivocal, and the true exposition infallibly certain. We cannot, under the pretence of interpretation, repeal it and thus usurp a power never confided to us, which we cannot usefully exercise, and which we do not desire.” Chief *204Justice Pearson says, in Barnes v. Barnes, supra, at p. 369, the court being pressed with the policy of what was called the ‘ ‘stay law, ’ ’ passed as it was contended fo r the protection of the people, engaged in war, in response to the question of policy: “Whether in the present condition of the country the statute be expedient, is a question of which we have no right to judge. Our province is to give judgment on the question of the constitutional power of the legislature to pass the statute.” In both cases the Act was declared unconstitutional and void.
I feel that I will be pardoned for making these lengthy quotations from the opinions of two of the Chief Justices who have left behind them reputations at least equal to any .of the other great judges who have presided over this court. I quote them to show that the court is not guilty of judicial legislation in rendering its judgment in this case, and has'only done what has always been done when the court declared an Act of the. legislature unconstitutional.
It is said there is no limitation except that the poll lax shall never exceed $2, and that there is no limit on the property tax except that $300 worth shall never exceed $2; and that, as the property tax levied in the Act of 1897 does not amount to $2, it is constitutional. This cannot be true as a proposition of law; it leaves out of consideration the question of equation. When the poll tax does not amount to as much as $2, its limit is as much a limitation on the property tax as if the amount of the poll tax had been written in the Constitution. That is, when the poll tax was fixed at $1.29, the tax on $300 valuation of property can no more exceed $1.29 than if that amount had been written in the Constitution; and any levy of taxes in excess of $1.29 is 'ultra vires, in conflict with the Constitution and void. There is error in the judgment appealed from.