dissenting: In August, 1915, the Board of Commissioners of Cherokee-regularly levied 19 cents for county general tax and (under the authority of chapter 33, Laws 1913) a special tax of 2% cents on $100 valuation of all property listed in Cherokee County. This special tax was levied as authorized by the General Assembly by section 9, chapter 33, Laws 1913, and chapter 88, Laws 1913, and the amendments thereto, for the purpose of providing for the deficiency caused in the revenue of said county in 1914 by said chapter 33 and by section 3, chapter 201, Laws 1913, which rendered it necessary in order to take care of certain outstanding indebtedness of Cherokee which could not be met for the year 1914 out of the revenue raised by the 19-cent levy for said year.
The property of the plaintiff, the Southern Railway Company, in Cherokee County, consisting of some twenty-four miles of railroad track and its proportion of the equipment, engine, cars and investments and its franchise, was assessed for taxation at more than a million dollars, and the 2% cent special tax levied against this property in aid of education (as against all other property holders in the county) amounted to $275.56. This action is brought to recover said sum which had been paid into the county treasury by the railroad company.
Said section 9, chapter 33, Laws 1913, provides: “The board of commissioners of any county in North Carolina be and they are hereby authorized and empowered to levy a special tax in excess of the constitutional limitation, not exceeding five (5) cents on the one hundred dol*99lars ($100) valuation of all property listed for taxation in tbeir respective counties, to provide for any deficiency in tbe necessary expenses and revenue of said respective counties wbicb may be caused by tbe provisions of tbis act.”
Said act was passed to increase tbe revenue of tbe State for school purposes so as to provide for a six-montbs school term. Said act describes tbe levy authorized to be “a special tax,” and tbe “special purpose” for wbicb it is authorized is recited to be “to provide for any deficiency in tbe necessary expenses and revenue” of any county wbicb might be caused by raising tbe State levy to 47% cents. Not a dollar of tbis $275 was spent for schools, but was spent exclusively for other necessary county expenses.
In Connor & Cheshire on Cons., 281, it is said: “Tbe equation and limitation placed upon taxation by Art. Y, sec. 1, has no application to taxes levied hereunder for a special purpose, when levied with tbe special approval of tbe General Assembly,” citing Board of Education v. Comrs., 137 N. C., 310; Jones v. Comrs., 107 N. C., 248; Street v. Comrs., 70 N. C., 644; R. R. v. Holden, 63 N. C., 410; R. R. v. Comrs., 148 N. C., 220. Tbis has always been tbe necessary and indeed tbe only resource when a county has gotten in debt for necessary expenses. There is no other way for tbe county to redeem its credit. Tbis deficit was not for schools but for tbe necessary expenses of tbe county, wbicb was not allowed to levy over 19 cents by reason of tbe State tax.
Tbe Constitution, Art. Y, sec. 6, prescribes: “Tbe taxes levied by tbe commissioners of tbe several counties for county purposes shall be levied in like manner with tbe State taxes, and shall never exceed tbe double of tbe State tax, except for a special purpose, and with tbe special approval of tbe General Assembly.” Adding tbis 2% cents to tbe 19 cents already levied for county purposes makes a total of 21% cents. Tbis levy, far from exceeding “double tbe State tax,” tbe limit named in tbis provision, is in fact considerably less than one-balf tbe State tax, wbicb was 47% cents on tbe $100. -Laws 1913, eb. 201, sec. 3.
Tbe tax here in question is authorized for a special purpose “to provide for any deficiency in the necessary expenses and revenue of said respective counties,” and received tbe special approval of tbe General Assembly, sec. 9, eh. 33, Laws 1913. Tbis levy, therefore, is exactly within the authority of the General Assembly and tbe restrictions of tbe ■Constitution of tbe State. Art. Y, sec. 6, above set out.
It is alleged, and correctly, that tbe insufficient levy of 19 cents to defray tbe county expenses was due to tbe fact that tbe State, in order to make adequate provision for tbe six-montbs schools, raised tbe tax levy for all State purposes to 47% cents, and hence tbe margin between that and tbe normal 66% cents left only 19 cents for tbe counties. It *100became necessary, as is found as a fact by tbe county commissioners and also by tbe judge, and is not controverted, to levy tbe extra 2% cents per $100 in order to defray tbe county expenses for necessary purposes. Tbis levy in excess of tbe 19 cents being for necessary purposes did not require a vote of tbe people.
Tbe levy of tbis tax in 1915 is stated by tbe-board, and is found as a fact by tbe court, to be for tbe special purpose of taking up a note in bank made by tbe board of commissioners for a deficiency in meeting tbe necessary expenses of tbe county for 1914, and was authorized by chapter 88, Laws 1913, which recites tbe fact that tbe increase of taxes for tbe purpose of increasing school facilities would probably “leave tbe counties without sufficient revenue with which to pay their current necessary expenses.” It therefore, has tbe special approval of tbe General Assembly. Why refund it to plaintiff when tbe county must again collect it?
It is true that tbe General Assembly of 1913 increased tbe general State taxes 5 cents for tbe purpose of increasing tbe terms of the public schools to six months, but if there is any unconstitutionality it attaches to tbe increase of tbe general State tax by tbis 5 cents, and there can be no unconstitutionality in allowing tbe counties to levy additional taxes for necessary county purposes when tbe deficiency is not caused by county action or lack of legislative special approval. Tbe complaint, if any, of tbe plaintiff should not be directed against tbe levy of tbis special tax for necessary county purposes with tbe special approval of tbe General Assembly, but against tbe legality of tbe 5-cent additional State tax levied by tbe Legislature for State purposes. In tbe language of tbe market-place, tbe plaintiff “has tbe wrong sow by tbe ear.”
Tbe county must pay its necessary expenses or it cannot continue to discharge its legitimate functions. Its credit will be destroyed and tbe county government will become inefficient. Its commissioners have not levied to exceed double tbe State tax, and tbe 2% cents was for a special purpose, for which tbe General Assembly has given its special approval. Tbe deficiency was caused by tbe action of tbe General Assembly, which has not been called in question in tbis or any other proceeding.
North Carolina not only stands at tbe foot of tbe States in illiteracy and in tbe shortness of school terms, but its levy of taxation for schools, for good roads, and public health is the lowest of any State in the Union, being less than half the average for such purposes levied by the other States of tbe Union. To meet tbis situation and remove tbis reproach, and enhance tbe welfare of tbe people whom they represent, the General Assembly of 1913 increased the school term to six months. And knowing that tbe appropriation therefor would render tbe margin left for county purposes insufficient for their administration, tbe General A&-*101sembly gave its special approval for tbis additional taxation by tbe counties. If there is any nnconstitutionality in tbe action of tbe General Assembly it is in tbe levy for tbe six-montbs schools by tbe General Assembly, wbicb is not impeached by tbis proceeding.
Tbe people of tbe State, by a vote of more than 100,000 majority, have endorsed tbe action of tbe General Assembly of 1913, wbicb has been followed by tbe General Assemblies of 1915 and 1917, by adopting tbe constitutional amendment requiring six-months, term for public schools. At tbis term we have bad three cases calling in question special taxation to extend school facilities. In each of tbe three tbis Court has invalidated tbe effort to do so. In Williams v. Polk County tbe act of tbe General Assembly authorizing tbe special tax was, however, not set aside by tbe Court, but tbe result of tbe election was invalidated because of an illegality.in tbe manner of bolding tbe election, and tbe Court was unanimous. In Hill v. Lenoir, tbe act of 1911 authorized any county to vote a special tax for school purposes, as tbe General Assembly has a right to do under tbe Constitution, and prescribed that at such election, if tbe entire county gave a majority for such tax, it should be a county measure, but that if it did not carry for tbe entire county it should be valid for each township in wbicb such measure received a majority. Tbis manner of voting was a matter within tbe good judgment of tbe General Assembly, and there was no provision of tbe Constitution pointed out wbicb forbade tbe Legislature to authorize such manner of voting,'nor any provision of tbe Constitution authorizing tbis Court to invabdate tbe action of tbe General Assembly. Besides, tbe act was a general one passed in 1911, and under it elections have been held in many counties, in some of wbicb tbe counties, and in some townships, bad adopted tbe special tax. A dissent was entered by me as to that decision and in tbis case.
Tbe Supreme Court of tbe United States has repeatedly said that it would not bold an act unconstitutional unless it was so “beyond all reasonable doubt.” Ogden v. Saunders, 12 Wheaton, 270; S. v. Perley, 173 N. C., 791; Cooley Cons. Lim. (7 Ed.), 254. For that reason, besides for those given in tbis dissent, it would seem that these measures wbicb tbe General Assembly has enacted to give tbe children of tbe State a better opportunity for an education should not be disapproved and invalidated by tbis Court.
On tbe face of tbe Federal and State Constitutions it was' clearly contemplated that tbe legislative department should be tbe guardian of tbe Constitution fully as much as tbe judicial, and that legislation held by it constitutional should be conclusively so, as in all other countries, subject only to tbe veto of tbe executive (where tbis is given) and to the' approval of tbe sovereign at tbe ballot box. There is certainly no indi*102cation given in any Constitution of sux>eriority or supremacy of tbe judicial over tbe legislative department.
Those who believe in the supremacy of tbe courts over legislation and the law-making body stress tbe fact that tbe judges are sworn to obey the Constitution, and therefore they must judge whether the Legislature has complied with the Constitution or not. But the members of the Legislature and of Congress are equally sworn to obey the Constitution, and therefore they, and not the courts, are charged with the duty of deciding whether'legislation is in accordance with the Constitution or not. For the same reason, the Legislature is not empowered to hold that decisions. of the courts in matters committed to them are unconstitutional.
If there was any provision in the State Constitution which empowers the Court to go behind such finding of the Legislature, it would be in effect giving an appeal from the Legislature to the Court. On an appeal from the Superior Court to this Court, five judges review the trial judge to insure uniformity in the law, because the Constitution confers the power. There is no such provision in the State Constitution as to the Legislature and the jurisdiction of the Court to go behind the finding by the two Houses of the General Assembly that an act is in conformity to the Constitution is logically and necessarily based- upon the assumption that the Legislature has either ignorantly or intentionally violated the Constitution, and that therefore, of necessity, the Court, by reason of its superiority of wisdom or virtue, must have power to invalidate the action of the law-making body. This assumption has not been warranted by experience, and has no foundation in fact.
On an average, two-thirds of each House of the General Assembly and of both Houses of Congress have usually been lawyers. They have the intelligence to read the Constitution and the patriotism and integrity to observe it. The numerous instances in which the courts have overruled their own preyious decisions on so-called “constitutional questions” (and others in which they should, or may yet, do so) are a judicial holding that the courts themselves have acted unconstitutionally. Certainly when the far greater number of lawyers in the law-making body, entrusted by the Constitution to make the laws in the discharge of the duty committed to them, hold an act constitutional, and a minority of the Court agree in that view, it cannot be held that the Legislature, “beyond a reasonable doubt,” either ignorantly or intentionally, have violated their oaths to support the Constitution.
In the Convention at Philadelphia in 1187, which created the Federal Constitution, James Madison (afterwards President) and James Wilson (afterwards Justice of the U. S. Supreme Court) offered an amendment that all bills should be submitted and approved by the courts before be*103ing enacted. Though presented and pressed with, great force, the proposition was voted on four times, and on each occasion defeated, receiving at no time the vote of more than three States. The authority of the courts to invalidate an act of Congress or State Legislature is not expressed in the Federal or any State Constitutions, but is derived from the decision in Marbury v. Madison by the U. S. Supreme Court in 1803, deducing it as a legal inference. It was denied then by President Jefferson, the founder of one of the great parties, and later by Abraham Lincoln, the leader of another. In view of the increasing number of cases involving matters of public policy in which the views of the courts are such as to invalidate legislation it may be wise (if the courts are to continue to assert this supreme and irreviewable power over legislation) to submit legislation to the courts for approval, as suggested at Philadelphia, before it is enacted, instead of having it vitiated afterwards. It would be a great economy of time and expense.
In this State, a somewhat similar decision, derived, like Marbury v. Madison, by legal deduction or inference, in Hoke v. Henderson, 15 N. C., 1 (Dec., 1833), for seventy years was an obstruction to legislation and a constant source of conflict between the Legislature and the judiciary until after being affirmed sixty times, it was finally overruled as unfounded in Mial v. Ellington, 134 N. C., 131 (1 Dec., 1903). One Federal Supreme Court decision was corrected by the Eleventh Amendment and another by the Seventeenth Amendment, and in the Adamson Law case the Court overruled, and thereby held unconstitutional, its previous decision in the Lochner case. Courts make errors as well as Legislatures and Congress (as shown by overruling decisions and others which should be overruled), and their correction by constitutional amendment is too dilatory, for a progressive age and people and too costly a deference to a merely hypothetical and supposed infallibility in the courts.