concurring in result: I agree fully with the Court in its. opinion, as delivered by Justice Allen, that the tax provided for in the-statute is for a general and not a special purpose, and therefore is not authorized by the Constitution under Art. V, secs. 1 and 6. But I do-not agree that section -6 permits a tax exceeding the constitutional limit as fixed by section 1. It was intended to establish the proportion between State and county taxation, providing, and providing only, that the latter shall not exceed the double of the former except for a special purpose and with special approval of the General Assembly. There is nothing said about exceeding the limit of taxation, and Uo distinction is. made in section 1 or section 6 between ordinary and extraordinary expenses. The language is: “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 (clause as to exemptions omitted), and the State and county capitation tax combined shall, never -exceed two dollars on the head.” (Italics ours.)
*94I will not repeat bere wbat was .said by me in Collie v. Comrs., 145 N. C., at p. 177, and later in Moose v. Comrs., 172 N. C., 451. We are not permitted to construe tbe Constitution by a consideration of subsequent conditions and circumstances, and if tbe growth and development of tbe State, since it was adopted, bas made necessary a bigber limit, tbe remedy is not in interpretation, but by amendment as provided in tbe instrument itself. For some time after its adoption, there was plenty of room within tbe limit it prescribed for tbe counties to more than double tbe State tax; but however this may have been, we must ascertain tbe meaning of tbe Constitution by considering only its language. These principles are so very elementary as not to require further discussion or tbe citation of authority. I considered this question fully in tbe cases cited above and will not go over tbe argument again.
I agree' with tbe statement in tbe opinion that this Court bas tbe power to declare a statute invalid as being in conflict with tbe Constitution. To be more accurate, it is not that tbe statute conflicts with tbe Constitution, but that tbe Legislature bas exceeded its power as fixed by it, and to tbe extent that it bas done so tbe legislation is unwarranted, and therefore invalid. Whether in any particular case tbe Legislature was without authority under tbe Constitution to act is so plainly and palpably a question of law that it would be more than idle or vain to demonstrate it. It is really not now an arguable question. Standard text-writers, commentators and publicists, and also tbe largest majority of tbe courts and jurists, agree that this question bas been set at rest by a long line of cases in tbe Federal and State jurisdictions, which have virtually closed tbe door to all discussion. If any Court in tbe Union bas been thoroughly and irrevocably committed to this doctrine, it is this Court. If it was not tbe first, it was certainly among tbe first to announce it as a clear and unquestioned principle in constitutional law. Tbe Legislature bas no more right to act beyond tbe scope of its power, as limited by tbe Constitution, than this Court bas to exceed tbe jurisdiction allotted to it in tbe distribution of governmental powers made by that instrument to tbe three coordinate departments — that is, legislative, executive, and judicial — and when it attempts to do so, all that it does beyond that limit is just as void as would be a judgment of this or any other’ Court rendered in excess of its jurisdiction.
Tbe legislative power not granted in tbe Constitution, expressly or by clear implication, was retained by tbe people, to be exercised or delegated as they may see fit. Tbe people did not exhaust all of their sovereign power when they framed the Constitution, but there was a large residue still retained by them. Tbe Legislature'is not, therefore, a sovereign body with plenary powers, but within tbe proper and prescribed limit, as set by tbe Constitution, it is entitled to have — and so far as this Court is concerned will have — perfect freedom of action.
*95Among the powers denied to it is the one now being considered; that is, the power'to levy taxes beyond the limit fixed' by the Constitution in Article V, sections 1 and 6.
It is strangely claimed by some that it has unlimited right to decide for itself, and finally, whether it has a given power, and if this be so, it would manifestly result that the Constitution, instead of being a charter of fimdamental principles and policy, would have no more binding force and effect than a statute, as it could be repealed or set at naught, according as the Legislature might will, meaning one thing today and another thing at some day in the future, or nothing at all, as partisan whim or eaprice might determine. Such a doctrine is wholly inadmissible and is entirely at variance with every proper conception and notion of constitutional government. It has been so held by nearly all, if not all, of the American courts. As early as 1780 the Supreme Court of New Jersey, in Holmes v. Walton, Amer. His. (Vol. 4), 456, laid down this doctrine, and that case was followed in New York by Rutgers v. Waddington, Fiske Cr. Period, Am. His., p. 127, decided in 1784, and in this State by Bayard v. Singleton, 1 N. C., 42, cited in the opinion of the Court.
The same Constitution that created the Legislature and gave it the power to legislate also created this Court, and expressly prescribed its jurisdiction, giving it final, appellate jurisdiction of matters of law and legal inference. Art. IV, sec. 8. And this brings us to consider the conclusive argument of the illustrious Chief Justice Marshall in Marbury v. Madison, 1 Craud (U. S.), 137, who said, when speaking for the Court: “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution — if both the law and the Constitution apply to a particular case, so that the courts must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law — the courts must determine which of these conflicting rules governs the case. This is the very essence of judicial duty. If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.” That case has been approved and its doctrine fully accepted and followed by practically all the courts and text-writers.'
This comports with the language of'our Constitution, which requires us to decide ripoh “all"questions of law or legal inference.” We must needs first" determine what the law 'is before we can' pass upon it or apply if to'individual "cases dr controversies, and in discharging'this *96important duty, or in exercising our jurisdiction, we must necessarily decide, when the validity of a statute is challenged or brought into controversy, whether it is valid or not, just as we would do if a judgment of a court of this or any other State is attacked for want of the necessary power or jurisdiction to render it; we must say whether it is valid, or not.
Let me quote the impressive words of another great constitutional lawyer, Judge Cooley, in his standard work on. Constitutional Limitations. He said at p>. 228: “The courts sit not to review or revise the-legislative action, but to enforce the legislative will; and it is only where-they find that the Legislature has failed to keep within the constitutional limits that they are at liberty to disregard its action; and in doing so-they only do what every private citizen may do in respect to the mandates when the judges assume to act and to render judgment or decrees-without jurisdiction. In exercising this high authority the judges claim no judicial supremacy; they are only the administrators of the public will. If an act of the Legislature is held void, it is not because the-judges have any control over the legislative power, but because the act is forbidden by the Constitution, and because the will of the people, which is therein declared, is paramount to that of their representatives-expressed in any law.”
To the same effect is the Federalist (Dawson’s Ed.), No. 78: “There is no position which depends on clearer principles than that every act of a delegated authority contrary to the tenor or commission under which it is exercised is void. No legislative act, therefore, contrary to the Constitution can be valid. To deny this would be to affirm that the deputy is greater than the principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that mere men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.” And Judge Dicey observes that it is now considered not only the right but the duty of every judge in the United States to treat as void any enactment which violates the Constitution, and Judge Cooley adds that it is now generally agreed that the courts cannot properly decline to overrule the acts of the Legislature when it has exceeded the authority set by the Constitution to its limits. Dicey’s Law of the Constitution (2d Ed.), 125.
As early as 1795, Justice Patterson of the United States Supreme-Court said: “I take it to be a clear position that if a legislative act impugns a constitutional principle, the former must give way and be rejected on the score of repugnance. I hold it to be a position equally clear and sound that in such a case it will be the duty of the Court to adhere to the Constitution and to declare the act null and void.” Vanhorne's Lessee v. Dorrance, 2 Dall. (U. S.), 304. The whole subject is-*97treated very fully and very clearly in Modern Am. Law (Vol. XI), pp. 64 to 80.
It hardly need be said that no Court would declare a statute void unless the violation of the Constitution is so manifest as to leave no room for reasonable doubt. It need only be added that this Court, in numerous decisions, has exercised this power without dispute or cavil, and for many years since Bayard v. Singleton was decided. The following are examples: Jones v. Crittenden, 4 N. C., 55 (suspension of payments of debts); Trustees of University v. Foy, 5 N. C., 59 (resuming escheated lands); Allen v. Peden, 4 N. C., 442 (emancipating slaves without owner’s consent); Robinson v. Barfield, 6 N. C., 391 (validating improperly executed deeds); Bank of the State v. Bank of Cape Fear, 35 N. C., 75 (impairing obligation of contract as to payment of bank notes); S. v. Moss, 47 N. C., 66 (jurisdiction of intendant of police of Charlotte); Stanmire v. Taylor, 48 N. C., 207 (grant of land already sold by State) ; Barnes v. Barnes, 53 N. C., 366 (stay law) ; King v. Comrs. of Lincoln, 65 N. C., 603 (tax collector case); Wesson v. Johnson, 66 N. C., 189 (common-law right of dower as to prior marriages); Galloway v. Chatham R. R. Co., 63 N. C., 147 (State subscription to railroad company stock); People v. Bledsoe, 68 N. C., 457 (government of penitentiary) ; Bailey v. Caldwell, 68 N. C., 472 (compensation of C. C. P. commissioners) ; People v. McGowan, 68 N. C., 520 (election of Keeper of Capitol) ; Latham v. Whitehurst, 69 N. C., 33 (requiring mortgage debts to be reduced to judgment). There areas many more cases, since decided, which expressly acknowledge this power without a dissenting voice, and some of comparatively recent date.
It also must be remembered that every case in which the question of the validity of a statute is considered by the Court, although the decision be in favor of it, is a concession of the principle that the Court may pass upon its constitutionality and declare it void in a proper ease, for why discuss the question if the Court cannot decide upon it? See the Constitution of North Carolina annotated by Connor and Cheshire, p. 543, for cases.
In Purnell v. Page, 133 N. C., 125, it was held that the income of a Federal judge could not be taxed by the State, and vice versa, and that any attempt by the Legislature to impose such a tax would be futile, and when properly questioned would be declared void, and this position was conclusively maintained in a strong and able argument by the present Chief Justice, who referred to the opinions of Attorney-General Batchelor, adopted by the Supreme Court, composed then of Nash, Chief Justice, and Pearson and Battle, Judges (4 N. C., 555), and that of Attorney-General Gilmer, 131 N. C., 692, approved by the Court as denying the *98power of the Legislature to tax the salaries of the judges, which would plainly be a diminution of them, forbidden by the Constitution.
It may be taken, therefore, as finally settled by this Court that the power to declare a statute invalid, as being unauthorized by the Constitution, exists, and that while the consideration of the question should be approached with great caution and the question itself examined with the most careful scrutiny, it will be pronounced invalid if it so clearly and obviously appears to be so that all reasonable doubt has been excluded. The Constitution is of paramount authority, and prescribes the rule to all departments of the government, to this as well as to the others, and each of them owes to it submission and obedience, and we should most willingly and cheerfully acknowledge its supremacy and render our allegiance to it accordingly as the highest law. Any other course, instead of perpetuating the blessings of the government, so happily designed by our forefathers and transmitted to us, would eventually lead to confusion, disorder and anarchy. Our oath, so carefully and impressively framed, binds us most solemnly to the performance of this higher duty to preserve and maintain the fundamental law.