concurring: I concur fully in the opinion of the Court by Justice Walker and in the concurring opinion of Justice Allen.
No member of this Court h'as ever permitted a legal technicality to stand in the way of public education. On the contrary, they have done all in their power to-foster it, consistent with their oaths to support the Constitution, the paramount law of the State.
Article 9 of that instrument declares that “religion, morality, and knowledge, being necessary to good government and the happiness of *585mankind, schools and the means o£ education shall forever be encouraged.” The same article enjoined upon the General Assembly the duty of providing four-months public schools.
In construing that article in a notable case, this Court unanimously declared that it was never intended that the limitation upon taxation in articles 5 and 7 should thwart the provisions of article 9, providing for four-months free public schools. This decision unshackled the Legislature in dealing with them. Collie v. Comrs., 145 N. C., 172. In rendering that decision, we were compelled to overrule two long standing decisions rendered by some of the ablest judges this State ever had.
While we are glad to advance the cause of education in any legitimate way, we cannot strike down other plain provisions of the Constitution intended for the just protection of the taxpayer and voter.
In construing article 7, section 7, of the Constitution, this Court, with unanimity, has declared in numerous cases that no special tax for school purposes can be levied by any county, city or town unless the proposition is submitted to and carried by a majority of the qualified voters. Con-nor & Cheshire on Const., p. 320.
The statute under review provides for an election to determine whether a special county-wide school tax shall be levied. It further provides, in substance, that if the county tax fails to carry, that the tax shall be levied in any township wherein a majority of the qualified vote is cast for the county-wide tax. No election was ordered or held to determine whether a township tax should be levied, but the voter who votes for a county-wide tax is legislatively presumed to have voted for a township tax. This is an unwarranted presumption, for many voters may have favored a county tax who were against a township tax. Thus the voter who desires a special tax levy by the county, but opposes it as a township levy exclusively, is constrained against his will to vote for the proposition to get any special tax whatever. If the county tax fails to carry, then the very thing he is opposed to comes to pass. But another fatal and insuperable omission is to be found. The act fails tp provide any means whatever by which a voter who is opposed to a county tax, but favors the township tax, can register his will at the polls. If he desires to vote his convictions he cannot vote at all. One of the elemental principles of a legal election is that every voter must be afforded the opportunity of recording his vote on either side of the proposition. The statute fails in this respect.
I am aware that elections have been held under this statute in several counties. In my own native county of Beaufort an election was held to levy a county-wide special tax, and I made a special trip to my home to have the pleasure of voting for it. It is true that there was no complication in those counties, and the tax was levied, but that was because *586the tax received the approval of the majority of the qualified voters of the county.
In Lenoir County a large majority voted against the tax as a county proposition, and only Kinston Township voted for it. But the voters of that township who favored a county tax, but were against an exclusive township tax, had their votes legislatively construed into favoring the latter, while those who opposed a county tax and favored a township tax had no opportunity to vote their real convictions.