dissenting-.
The town of Narrows was not in existence when the Constitution of 1902 went into effect.
Section 117 of the Constitution of 1902, so far as material to this case, provides as follows: ‘‘General laws for the organization and government of cities and towns shall be enacted by the general assembly, and no special act shall be passed in relation thereto, except in the manner provided in article four of this Constitution, and then only by a recorded vote of two-thirds of the members elected to each house,' * * *”
The object of this constitutional provision was to relieve the legislature from the burden of granting charters and legislating by special acts for municipalities in future and to secure uniformity of municipal government in the State, certainly as to municipal corporations thereafter coming into being, by requiring that they should be organized and governed in accordance with general laws.
Accordingly the General Assembly has provided by general laws for the creation of municipal corporations of cities by certain court proceedings (Pollard’s Code, sec. 1013-b; 3 Pollard’s Code, p. 644 et seq.). It has not as yet relieved the legislature of the burden of granting charters for the creation of towns; but it has amply provided by general laws for the government of all towns, except perhaps in regard to some matters with respect to which some town or towns may be peculiarly or differently situated from other towns of the State.
*592There is an important difference between the language of the previous Constitution on this subject and the language of said section 117. Section 20 of Art. VI of the Constitution of 1869 contained the following provision: “General laws shall be passed for the organization and government of cities, and no special act shall be passed, except in cases where, in the judgment of the general assembly, the object of such act cannot be attained by general laws.” (Italics supplied.) As a part of the history of the subject, it is well known that this constitutional submission to the judgment of the general assembly of the question of whether the object of such legislation, could be attained by general laws, in practice rendered the foregoing provision as to the enactment of such general laws as to cities nugatory. The Constitution of 1902, sec. 117, aforesaid, omitted the language permitting special acts to be passed, “in cases where, in the judgment of the general assembly the object of such act cannot be attained by general laws,” (also added “towns” to the provision of the Constitution), and thereby withdrew from the legislature the discretion of providing, in the exercise of its judgment aforesaid, for the organization and government of cities and towns in a manner different from the provisions of the general law, and substituted the constitutional .provision for the legislative discretion, i. e., made a positive constitutional requirement which is, in effect, not only that general laws on the subject should be enacted, but that such laws when enacted should govern the subject, the judgment of the general assembly to the contrary notwithstanding. The construction of this constitutional provision and the application of this test, as of all other constitutional limitations on the legislative power, is the function of the courts, not of the legislature. When general laws have in fact been enacted on the' subject and they are ample for the practical accomplishment of the organization and government of a particular town in ques*593tion in conformity with the organization and government of other towns in the State alike situated, the very existr ence of such general laws demonstrates that every legitimate object of such municipal organization and government can be attained by such laws. Such is the case before us.
When general laws have not been enacted, and a particular special law is passed on the subject, whether the powers it may confer can be exercised by the particular municipality which claims the benefit of it will depend, when the constitutional test aforesaid is applied, upon whether such municipality is situated so differently with respect to the subject of such special act that it is in a class by itself so that its exercise of such powers will not result in lack of uniformity of its organization and government when compared with other municipalities of the State alike situated. And this test is to be applied as aforesaid by the courts to the facts of the particular case. Such, however, is not the case before us.
Now, in this situation of the law, there are two views which may be taken of the meaning of the latter portion of section 117 of the Constitution above quoted, which section is as follows: “* * * no special act shall be passed in relation thereto, except in the manner provided in Article IV of this Constitution, and then only by a recorded vote of two-thirds of the members elected to each house.”
One view of the subject is that after the Constitution went into effect cities and towns thereafter created can be organized and governed only in accordance with general laws, which have been enacted therefor. That charters may be granted by the legislature creating cities and towns, and acts may be passed amending such charters, provided the special acts therefor be passed in the manner provided in Article IV of the Constitution and by the two-thirds recorded vote aforesaid, but when such charters are granted, or amended, the city or town must be organized and gov*594erned in accordance with general laws. This view regards the language of the Constitution last quoted as having reference only to the manner in which all of such special acts must be passed, and interprets such language to mean, when read in connection with the preceding language of the section of the Constitution under consideration, that it is not intended thereby to authorize the legislature by any special act, however passed, to nullify the requirement that all cities and towns thereafter created must be organized and governed, so far as it is practical so to do, in accordance with the general laws enacted therefor. This view of the law gives effect to the manifest purpose of the Constitution. It prevents the nullification of the constitutional provision by the exercise of legislative judgment and discretion in the matter, which, as we know, was the result of the former constitutional provision concerning cities, which has been left out of the Constitution of 1902. It accords to such provision the vitality which is essential to enable it to accomplish the important reform in the direction of uniformity of municipal government which is its chief object.
Another view of the subject is that since the language last quoted permits special acts to be passed in a certain manner, if they are passed in that manner there is no constitutional limitation on the character of such legislation, and that the legislature may by such acts confer any special power it may choose upon municipalities created after the Constitution went into effect, with respect to municipal organization and government, however diverse and out of accord. This view of the subject gives no effect to the language of the first part of the section of the Constitution under consideration. It gives to the subsequent provisions quoted the effect of nullifying the limitation contained in the preceding portion of the same sentence and provides an easy method for the legislature to thwart the aforesaid constitutional purpose. For, as we know, special acts con*595cerning cities and towns, are passed as a rule by the vote of members of the legislature without scrutiny or consideration except by the representative of the particular locality affected. And it gives the same meaning to the constitutional provision under consideration (which leaves out the former constitutional provision of submission of the subject to the legislative judgment, or discretion, as aforesaid), as attached to the former Constitution, and which did in fact prevent the accomplishment of uniformity in city organization and government under the old Constitution, and would unquestionably have the same result upon the accomplishment of uniformity in the city and town organization and government under the new Constitution.
On principle, and in accordance with the settled canons of construction of all writings, I think that the former is the correct view to be taken, and that such is the proper construction of the section of the Constitution of 1902 aforesaid.
And upon authority, we find that in Campbell v. Bryant, 104 Va. 509, at p. 513, 52 S. E. 638, this court held: “* * * it is clear that cities and towns not in existence when the Constitution went into effect can only be organized and governed in accordance with general laws. This provision of our present fundamental law” (referring to sec. 117 of the Constitution of 1902) “prohibiting special legislation, and providing that general laws for the organization of cities and towns shall be enacted, and that no special act shall be passed in relation, thereto, is second to no other provision of the Constitution in value and importance, and cannot be too carefully observed or strictly enforced.
“Of course the legislature can, as formerly, grant charters creating cities and towns, but when such charters are granted the city or town so chartered must be organized and governed in accordance with the general laws, other*596wise the charter would be obnoxious to the constitutional provision forbidding special legislation.”
The case of Miller v. Pulaski, 109 Va. 137, 63 S. E. 880, 22 L. R. A. (N. S.) 552, does not overrule the holding in Campbell v. Bryant with respect to cities and towns not in existence when the Constitution of 1902 went into effect. There are expressions in the opinion in. the former case which on the face of them may seem somewhat in conflict with the holding in the latter case; but the Miller v. Pulaski Case involved an amendment by special act of the charter of the town of Pulaski which was in existence prior to the said Constitution, and that case in truth merely holds that, “it is within the power of the legislature” (by special act) “to amend the charter of a municipal corporation if it pursues the mode provided in Article IV of the Constitution and the special act is passed by a recorded vote of two-thirds of the members elected to each house, as provided by section 117.” The opinion does not discuss or enter at all into any cotísidération of the character of legislation which, under section 117 of the Constitution, may be so enacted by special act. The special act which was there under consideration attempted to give the town of Pulaski the power of condemnation for a private as well as a public use, the two being so combined that, they could not be separated, so that the case was the same as if such power had been attempted to be conferred for a private use only. . On this ground the legislation was held to be invalid. Hence, the court did not pass upon what character of legislation may be enacted by special act in amendmént of a municipal charter, under section 117 of the Constitution. So that it seems to me the authority of Campbell v. Bryant remains unaffected and unimpaired in its holding aforesaid, certainly with respect to municipalities created since the Constitution of 1902 went into effect.
All three of the acts drawn in question in this case are admittedly special acts.
*597There are in the charter of the town of Narrows provisions relating to the time for holding the town elections, and attempting to confer certain powers and jurisdiction upon the mayor and upon the council of the town which are absolutely inconsistent and in conflict with the provisions of the general laws which have been enacted by the legislature for the organization and government of towns.
There is also a provision in all three of the charters, attempting to authorize the town of Narrows to take out of the county treasury a certain per cent, of all the road tax levied by the county on the inhabitants of the town and expend such tax within the limits of the town on its streets and roads under the supervision of the town council, which is likewise absolutely inconsistent and in conflict with the provisions of the general laws aforesaid.
Section 27 of the act approved March 27, 1914 (Acts 1914, p. 573), entitled “An act to provide a new charter for the town of Narrows, Virginia,” contained the following provisions:
“The said town of Narrows shall have the right to collect three-fourths (%) of all the road tax levied by the county on the inhabitants of Narrows. Said amount shall be .expended within the limits of the corporation on the streets and roads therein under the direction and supervision of said council.”
Section 6 of the act of 1904 (Acts 1904, p. 256), which first incorporated the town of Narrows, contained in substance the same provision except that the proportion of the road taxes mentioned which it provided that the town should have the right to “collect” was “one-half.”
Section 6 of the act of 1908 (Acts 1908, p. 543), entitled “An act to amend and re-enact an act approved March 14, 1904, entitled an act to provide a charter for the town of Narrows, in Giles county, Virginia,” contained, in substance the same provision as the first above mentioned act of March 27, 1914.
*598None of these acts, nor any other, created the town of Narrows a separate road district or required it to keep its streets in order. Nor does it appear in the record that the town of Narrows in fact undertook to maintain its own streets so as to relieve the county of that burden. On the contrary, section 26 of the said act of March 27, 1914, expressly provides that any bridges which have been or may be hereafter built within the town by the county are to “be maintained and kept in good repair by the board of supervisors or other officials of Giles county having the same in charge.”
No such power as that of “the right to collect” any part of “the road tax levied by the county” in which an incorporated town is located, whether such tax be a district or county road tax, has been conferred on the other towns of the State by general laws. And it is manifest that the town of Narrows is situated with regard to that source of town revenue in no way differently from the other towns of the State, the territories of which form parts of counties.
There is a general law (Pollard’s Code 1904, sec. 944-a, clause 11, amended by act approved March 15, 1915 [Acts 1915, p. 121], which exempts from the “road tax” which the board of supervisors of each county may annually levy along with the county levy, property, real and personal, subject to local taxation which is “included within the corporate limits of any town in such county which maintains its own streets.” Such general law has been properly upheld by this court as not in violation of section 168 of the State Constitution requiring uniformity of taxation, because it in effect creates separate road taxing districts of the towns which maintain their own streets. Watkins v. Barrow, 121 Va. 286, 92 S. E. 908, and cases therein cited. But the power attempted to be granted to the town of Narrows by the acts in question of the right to collect a part of the “road tax levied by the county” is not in accordance with *599the general law just mentioned. If such power be regarded as the same thing, in effect, (as in truth it is), as exempting the real and personal property subject to local taxation which is included within the corporate limits of the town of Narrows from one-half or three-fourths of the road tax levied by the county, it would be so lacking in uniformity in its provisions as to be obnoxious to section 168 of the Constitution, since the town of Narrows, as we have seen, has not been created by law a separate road taxing district.
In any view we may take of the matter, it is plain that the provisions of the three acts under consideration are not in accord with the general law on the subject governing the towns of the State. They attempt to confer a peculiar power on the town of Narrows of collecting a portion of the road tax levied by the county in which it is located, as well as to levy a town tax, all of which revenue may be used for road and street purposes within the town — a power which, if enjoyed, would set such town apart as governed in that particular by special legislation not applicable to other towns of the State of like character and in precisely the same situation, thus making it specially favored by legislation. This would be in direct violation of section 117 of the Constitution as it is construed in Campbell v. Bryant, and, as I think, there correctly construed, as aforesaid.
For the reasons stated, and also for those stated in the dissenting opinion of Judge Prentis, in which I concur, I am of opinion to affirm the decree of the court below which is under review, and hence cannot concur in the majority opinion in the case.