concurring in result: The statute sought to be enforced, ch. 347, Public-Local Laws 1921, entitled “An act to appoint road commissioners for Hertford County,” under which the plaintiff asks a mandamus to levy this tax, specifies that its sole purpose is the construction and maintenance of the roads, and for that purpose authorizes a levy of 25 cents on the $100 worth of property, and 75 cents on the poll, and section 26 of said act further authorizes a special and additional *155tax, not exceeding 10 cents on tbe $100 worth of property and 30 cents on the poll in Murfreesboro Township, to discharge the existing indebtedness for roads in that township. The opinion recognizes the validity of this legislation upon general principles, from which I do not dissent, but it is proper to note, however, that so much of this statute which authorizes the levy of a tax on the poll “for road purposes” is invalid because in violation of an explicit provision in the State Constitution, which, as adopted in 1868, provides, Article Y, section 2: “The proceeds of the State and county capitation tax shall be applied to the purposes of education and the support of the poor, but in no one year shall more than 25 per cent thereof be appropriated to the latter purpose.”
This provision of the Constitution remains unaltered. When there has been a levy for general purposes the validity of the poll tax has not always been brought in question, because, presumably, when collected the proceeds of the poll tax would be applied to the constitutional purposes to which it is restricted, i. e,., education and the poor. But this particular act is restricted to a specific purpose, therein expressed, that the tax is to be levied for the construction and maintenance of roads. So much of the act as levies a poll tax for such purposes is therefore unconstitutional and invalid.' This, however, can be struck from the act without impairing the validity of the property tax. This course has been pursued in several cases.
As we have now declared a legislative policy of incurring an indebtedness of $50,000,000 for the construction and maintenance of roads, it is well to note that however laudable such purpose may be, the Legislature is forbidden by the Constitution to derive any funds for that purpose from the levy of a poll tax.
It is true that at common law, at a time when there was a monopoly of land ownership by the barons in England, there'was inaugurated a system by which those who had no wheels or produce to require the use of roads were conscripted without pay to render labor to make the roads for those who had need to use them. When our Convention met' in 1868, while we did not abolish the poll tax entirely, as nearly all the other States have done, we did restrict the State and county capitation tax to $2, and inserted as a further and just protection that the proceeds of the poll tax should be applied to the purposes of education and the support of the poor.
The question now presented, under the Constitution as now amended, whether if a mandamus issue to enforce collection of taxes under this statute, it shall embrace an order to collect a capitation tax for that purpose, has never heretofore been before this Court in any ease. .
*156Under the Constitution as it stood before the amendment ratified in November, 1920, there was a requirement that “the State and county capitation tax should never exceed $2,” but there was also a provision that the “State and county capitation tax shall be equal to a tax on property, valued at $300 in cash.” By reason of this requirement of an equation between the capitation tax and the property tax on $300 there were conflicting decisions whether when the tax on property exceeded that limitation the tax on the poll should also exceed it, and there were also conflicting decisions whether when there was such excess the tax on the poll could be applied for the benefit of bondholders and other purposes, or was restricted to “education and the support of the poor.” In an. unanimous ojúnion by Judge Connor, R. R. v. Comrs., 148 N. C., 220, and Perry v. Comrs., ib., 522 (Hoke, J.), it was held that the poll tax “could never exceed $2 on the head,” and must be applied to “education and the support of the poor.” And there were other cases to the same effect. On the other hand, in Moose v. Comrs., 172 N. C., 419, it was held by a divided Court (Clark, C. J., and Walker, J., dissenting) that the limitation of $2 applies only where the levy is for the ordinary expenses of the State and county government, and only under such levy was theTestriction to be observed that the poll tax should be applied only to “education and the support of the poor.”
We also had decisions that inasmuch as the restriction to $2 on the poll, in its terms, applied only to the “State and county capitation tax,” that cities and towns were under no such limitation, and instances were frequent where the total tax levied upon a laboring man who had nothing to be taxed except his head often amounted in the aggregate to $9 or $10.
These conflicting decisions have ceased to have any bearing because under the Constitution' as now amended the “equation of taxation” between the poll and property has been stricken out, and the Constitution, Article Y, section 1, now reads: “The General Assembly may levy a capitation tax on 'every male inhabitant of the State over 21 and under 50 years of age, which tax shall not exceed $2, and cities and towns may levy a capitation tax which shall not exceed $1. No other capitation tax' shall be levied.” Section 2 of that article of the Constitution which provides that “the proceeds of the State and county capitation tax shall be applied to the purposes of education and the support of the poor” remains unaltered.
It will therefore be seen that there is no equation of taxation under any construction of which the poll tax can now ever exceed $2 for State and county, or be applied to other purposes than for education and the support of the poor, nor can the cities and towns levy more than $1 as a capitation tax. The language of the Constitution is now made plain, “No other capitation tax shall be levied.” There' is no equation of *157taxation to authorize a judicial construction to the contrary. It is also clear from this language that no capitation tax can be levied upon women, or upon men except between 21 and 50 years of age.
It follows that the mandamus, if it shall issue in this ease, cannot require the levy of any capitation tax for the maintenance and construction of roads. So much ■ of the statute as provides therefor must be disregarded and stricken out. The valid portion of the statute which authorizes the levy of a property tax for that purpose is not affected by the invalid requirement of a poll tax.
In England, from which we derive so much of our legislation, a poll tax was twice levied for short periods over 500 years ago, and then it caused what was known as the “Jack Cade,” and also the “Watt Tyl'er” rebellions. It was each time promptly repealed, and has never been collected since except for 2 or 3 years in the reign of William III., more than 200 years ago, when, again, it was very promptly repealed'.
The poll tax was not mentioned in the Constitution made at Halifax in 1776. In the Eevised Statutes of 1835, the poll tax was 20 cents which was levied also on slaves, who were not taxed ad valorem. In the Eevised Code of 1854 the poll tax was 40 cents, and it is current history that it was levied largely because slaves were not taxed according to their value as property.
The Constitution of 1868, in view of this steady growth of the poll tax in amount, placed a limit by providing: “The State and county capitation tax combined shall never exceed $2 on the head,” and added a just provision that its proceeds should be applied to “education and the support of the poor.” In Judge Connor’s well considered opinion, R. R. v. Comrs., 148 N. C., 220, 248, he emphasized these provisions, and adds: “This question can never arise again.” It did, however, arise again, and a contrary view was taken by a majority of the Court in Moose v. Comrs., supra. The question is now settled, as already stated, by the amendment which, striking out the equation of taxation, restricts the amount of the capitation tax absolutely, and adds: “No other capitation tax shall be levied.”
In R. R. v. Comrs., 148 N. C., 253, it is said that our poll tax “is criticized by Hollander on State Taxation, 104, who points out that in this State 60 per cent of the taxes are paid by persons owning less than $500, with the result that the small taxpayer, if he pay the poll tax also, pays nearly double the rate of the larger taxpayers.”
It was doubtless considerations such as these that procured the adoption of the amendment by which the equation of taxation was stricken out, and the total capitation tax, including that by municipalities, was restricted to $3 total, with the unequivocal declaration that “no other *158capitation tax shall be levied” and retaining, unaltered at the same time, in the Constitution the provision that “the poll tax shall be applied to education and the support o£ the poor.”
It is not without significance that simultaneously with the adoption of the policy of appropriating $50,000,000 for roads there should be this constitutional protection extended to the “man with the hoe” — sometimes called “the forgotten man,” for the same Legislature (1921) took notice of the constitutional provision authorizing the exemption of personal property “to a value not exceeding $300,” and by ch. 38, sec. 72, p. 270 (6), enacted the exemption of that amount for the first time, though the authority had been in the Constitution for more than 50 years.
We must take notice of the evident intent of the Constitutional amendment and of the Legislature that no part of the apprppriation for roads or any other purpose than “education and the support of the poor,” shall be raised out of a capitation tax, which, besides, is absolutely limited in amount — even for education and the support of the poor — if levied by the State and county, to $2, and to a levy of $1 by municipalities.