dissenting: Tbe Constitution at Halifax in 1776 made no reference to tbe poll tax, and it was unknown in England, where it bad been tried only in tbe very distant past, and, having caused two insurrections, bad soon been repealed. Even in that country, which was then far more ruled by tbe classes than now, taxation of the poll was not tolerated.
In tbe Revised Statutes in 1885 tbe poll tax was 20 cents and was levied also upon slaves, who were not taxed ad valorem, as well as on whites. In tbe Revised Code of 1854 tbe 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.
When tbe Constitution of 1868 was adopted a poll tax was authorized up to '$2, but it was restricted by two explicit provisions. Art. Y, sec. 1, provided: “Tbe State and county capitation tax combined shall never exceed $2 on tbe bead.” Another section, Art. Y, sec. 2, provided: “Tbe proceeds of tbe State and county capitation tax shall be applied to tbe purpose of education and the support of tbe poor, but in no one year shall more than 25 per cent thereof be appropriated to tbe latter purpose.”
Tbe Court has no more power than tbe Legislature to strike out those two provisions from tbe Constitution. They could not be made more explicit. Tbe whole subject was thoroughly reviewed by this Court in an unanimous opinion, R. R. v. Comrs., 148 N. C., 220, in which all t.he eases on the point were reviewed, and thfe Court held that only one of the previous cases, Board of Education v. Comrs., was in conflict with the result then reached. The very able and exhaustive opinion, written by Connor, J. (now the distinguished Federal judge of the Eastern District of North Carolina), held that the wording of the Constitution, “ ‘The State and county capitation tax combined shall never exceed $2 on the head’ is imperative and prohibits the levy of any tax upon the poll for any pv/rpose in, excess of that sumj that section 2 applies the poll tax to the purposes of education and the support of the poor and withdraws it from any other purpose,” adding (p. 245) : “This question cannot again arise.”
This opinion was repeated in R. R. v. Comrs., 148 N. C., 248, written by the same judge, and Ferry v. Comrs., 148 N. C., 521, by Hoke, J. These decisions have never since been questioned till now. Four of the judges who concurred in those opinions are still on the Bench. There is but one member of the Bench now who was not on the Court at that time, and if the change in personnel of one-fifth of the Court authorizes the reversal of these able and thoroughly considered opinions upon a grave constitutional question in accordance *446with the express language o£ the Constitution, as all men may read it, then reliance can no longer be placed upon any opinion whatever, for the views of the Court, so liable to change, have become
“As variable as the shade
By the light quivering aspen made.”
If precedents are to govern, these last three opinions reviewing the whole subject are conclusive. If the Constitution itself is to control, its language, “The State and county capitation tax shall never exceed $2,” and “The proceeds of the State and county capitation tax shall be applied to the purposes of education and the support of the poor,” can admit of no other construction than the plain and explicit pledge therein given to the laborers and men of small means that they shall not be taxed for the mere privilege of breathing the air more than $2 per year, and that that sum shall be applied to no other purposes than “education and the support of the poor.”
It is true that Article V, section 1, does provide that the capitation tax shall be equal to the tax on property valued at $300 in cash, but there is no provision that the tax on $300 worth of property shall never exceed $2, and hence the Court has repeatedly held that this equation only extends and is to be observed up to $2, and, therefore, when the tax on property exceeds $2 the equation ceases, because the poll tax “can never exceed $2.”
This does not invalidate any bonds heretofore issued in which a capitation tax has been authorized, because the purchasers of such bonds are fixed with notice that the State Constitution forbids the levy of a capitation tax in excess of $2, and that such tax can only be applied to education and the poor. The holders of such bonds have the right to have the levy of taxes upon' property for the payment of their bonds, but they have no interest in the poll tax, which cannot be applied for such purpose; and whenever the aggregate poll tax provided for in all the statutes authorizing a tax levy for bonds or other purposes reaches $2 the board of commissioners must stop. They cannot go beyond that figure.
The language of the Constitution is too plain to admit of discussion, and it is of no value to criticise or compare previous decisions of this Court. The last three decisions quoted from 148 N. C. above are equally conclusive. The unanimous Court gave to the public the pledge, a.s explicit as that in the Constitution, that the poll tax should never exceed $2, and said, four of the present Bench concurring: “This question can never again arise.”
In R. R. v. Comrs. Judge Connor quotes Judge Cooley: “Capitation taxes are not a common resort in modern times, and only in a few cases could they be just or politic,” and cites from other States showing *447that only a few States levy a poll tax. In fact, in 36 States, as in England, no poll tax at all is levied, and in tbe other 12 it cannot exceed $1, and that is applied to the public schools.
In California, one of the States which allowed this small poll tax, an.amendment to the Constitution, striking it out, was adopted last year by 125,000 majority. In our State the county and municipal poll tax combined has frequently reached the oppressive figure of $6, $7, and even $8. And, as stated in R. R. v. Comrs., 148 N. C., 253, “This is criticised by Hollander on State Taxation, 104, who points out that in this State, in which 60 per cent of the taxes are paid by persons owning less than $500, the result is that the small taxpayer, if he pays a poll tax, 'also pays nearly double the rate of the larger taxpayers.”
In our State, also, the amendment ratified in August, 1900, provides that every person “before he shall be entitled to vote shall have paid, on or before the first day of May of the year in which he proposes to vote, his poll tax for the previous year.” . As Judge Connor forcibly said in R. R. v. Comrs., 148 N. C., at p. 242, “It is a strange anomaly to say that while the right to vote is restricted by the payment of a poll tax which ‘shall never exceed $2,’ the voter may be disfranchised for failure to pay a poll tax the amount of which is left to the discretion of the General Assembly, the Constitution thus guaranteeing to every citizen otherwise qualified the right to vote by paying a poll tax of $2, and by construction giving the General Assembly the power to increase it to any amount they may deem proper.”
It is true that formerly the roads were worked by conscription of labor. This was a most unjust provision, enacted by the influence of the landowning class, at a time when no one could vote for State Senators unless he owned 50 acres of land. The property owners who used wheels over the roads paid very little of the cost of making the roads, while those who only walked by the side of them worked the roads for those who used them.
The inefficiency as well as the injustice of this system, in France, where they were called Gorvées, was one of the chief causes of the great French Eevolution. In this State the progress of civilization and the impossibility of getting effective roads by that system, as well as a sense of its inherent injustice, has caused the almost universal adoption of the present method of working the roads by taxation; but this does not justify the violation of the pledge in the Constitution by increasing the burden on the head of the laborer beyond the $2 limit pledged by the Constitution, binder the guise of working the roads by taxation this is placing part of the cost of working the roads back on the laborer by taxing his head in excess of the constitutional limitation.
*448The Constitution cannot be misunderstood when it pledged the laborer and the man of small means that no tax should he laid on his head in excess of $2, and that this should be applied solely to education and the poof.
The tendency of the age is towards a more equitable levy of taxation upon the superfluity of the wealthy, and therefore Congress has levied a graduated income tax, exempting those under $4,000 and ranging from 1 per cent on that sum to 13 per cent oil larger amounts. In like maimer there is a graduated tax on inheritances, exempting small estates. The State has also adopted the same policy of graduated taxation upon incomes and inheritances. The sense of justice and the political economy of this age require a more equitable distribution of the public burdens by putting the heavier tax on those most able to bear it instead of the reverse, as is the case under an unlimited poll tax.
The practical effect of this decision is to strike out of the Constitution by a vote of 3 to 2 of the members of this Court the protection against excessive capitation tax and thus to leave it without any limitation whatever. The effect will be necessarily to precipitate, from a public sense of justice, an agitation, as in California, to strike out the capitation tax entirely. No people can-stand an unlimited poll tax, and will not tolerate it when there is a solemn constitutional pledge and previous unanimous decisions of this Court that the poll tax can never exceed $2, and shall he applied to no other purpose than education and the poor. The holders of these bonds are entitled to have their principal and interest paid by a levy on the property of the county, but they cannot tax the polls of those who create its wealth and who should be protected, according to the Constitution, from paying any poll tax for other purposes, and in any larger amount than therein specified.
The General Assembly must be construed, to have understood the Constitution and to have intended to conform to it. In Jones v. Comrs., 107 N. C., 248, it was held that “The equation and limitation of taxation apply only to taxes levied for the ordinary purposes of State and county.” This has been sustained ever since. It means that the equation must be observed up to the $2 limitation for ordinary purposes, but when a tax is levied for a special purpose it can exceed the $2 limitation on property, but, in the language of the Constitution, “The State and county capitation tax can never exceed $2” — that is, for no purpose and on no occasion. There is no such limitation as to the taxation of property. The bondholders have no interest in the poll tax exceeding $2, for in no event can any part of the capitation tax be 'applied to any other purpose than education and the poor. The Constitution forbids it.
*449Section 4 of tbe act before us, providing for “a special tax on all polls, real estate and personal property . . . always observing the constitutional equation between the taxes on the property and the taxes on the poll,” is a constitutional act, but it must be construed, within the terms of the Constitution, to mean that all the taxes levied on the polls, including that provided in this act, shall not exceed $2 on the poll, nor be applied to any other purpose than education and the poor. Thus construed, it conforms to the Constitution and to all our decisions as reviewed, and was so held by a unanimous Court in R. R. v. Comrs., 148 N. C., 220; R. R. v. Comrs., ib., 248; and Perry v. Comrs., ib., 521.
The Constitution is so plain and explicit and all our authorities have been so clearly reviewed and summed up in those cases that it is simply' a waste of time and a "threshing over of old straw” to go over and review them again. The plain letter of the Constitution is the guide by which we must go, and that cannot be changed by placing upon our precedents a different construction from what has been done in the three cases in which this matter has already been fully and carefully discussed and settled.
This Court is without authority to amend the Constitution by striking therefrom the guarantee given the toiling masses and men of small means, that the “State and county capitation tax shall never exceed $2,” and that it shall be applied only “to education and the poor.” If by ingenious argument it could be shown that any previous decisions have held that this can be done (but they have not), so much the worse for those decisions. The argument would merely show that judges are not always infallible, and sometimes make mistakes. It would not authorize us to amend the Constitution to confoim to those decisions.
The public will feel slight interest in any argument claiming such precedents. But it will deeply concern them that faith should be kept with the masses to whom the constitutional pledge was given that the poll tax should be limited to $2 and applied only “to education and the poor.” It will be a serious matter, by a strained construction placed on the Constitution by a bare majority of this Court, to repeal those provisions, thus making the poll tax subject to.no limitation and applicable to all purposes, with the effect that those already sufficiently burdened with an undue share of taxation shall have their pro rata increased and themselves disfranchised if unable to pay an unlimited capitation tax.
As construed by this Court heretofore, the “equation” held only till the poll tax reached $2. As the tax on the poll could "never exceed $2,” the equation necessarily then ceased, for thereafter taxation could be *450laid only on property. Jones v. Comrs., 107 N. C., 248, and numerous cases since.
Can a majority of -this Court amend tbe Constitution? .The Constitution guaranteed that the State and county poll tax “shall never exceed $2.” As now amended by the vote of three judges, the Constitution must henceforth read: “There shall be no limit on the poll tax.”
The Constitution as written by the Convention and adopted by the people reads, the poll tax “shall be applied to the purposes- of education and the support of the poor.” As now amended by a majority of the' Court, it must henceforth read as if written: “The poll tax shall be applicable to any and all purposes.” This is a complete reversal of both propositions, by judicial construction. As now amended, the poll tax being laid without limitation and applicable to any purpose, there was no purpose to be served by putting any reference to it in the Constitution.
This judicial construction, which by a bare majority of the Court now makes the poll tax unlimited and gives its proceeds to those bondholders, will likely bring about its abolition — especially as a slight change in another decision will disfranchise every voter who does not pay an unlimited poll tax for the benefit of bondholders.
In Hollander on State Taxation, 104,-it is said: “The poll tax of North Carolina is clearly a regressive tax of a very heavy kind. It amounts frequently to doubling the rate on small property owners. Let us suppose, for instance, two property owners, one owning property worth $10,000, and another owning property worth $300. If we levy on each a property tax of 1 2/3 per cent (an average municipal tax in North Carolina) and a poll tax of $5, this amounts to taxing the richer man at a rate slightly above 12/3 per cent, while the poorer man has to pay $10 tax, or at the rate of 3 1/3 per cent. If a| poor man has no property, and thus escapes the payment of the extra poll tax, the very existence of this tax is an inducement to him never to acquire any property, since from his first savings the State, county, and city take away as much as the savings bank would pay him if he had $300. If he only saves $100, they take away far more than such bank would pay him. That this is a’ real and an important consideration is revealed by statistics from Wake County given by the Auditor in his report for .1896. Over 60 per cent of the taxpayers of this county pay on less than $500 of real and personal property, and the Auditor estimates that 80 per cent of the taxpayers of the entire State pay on less than $500 worth of property. On such persons the poll tax weighs heavily. The richer man does not feel it; the man with no property largely escapes it; but upon the small property owner it hangs as an *451incubus. It is not a tax proportioned to ability. It is not even, according to the theory of the general property tax, proportioned to wealth. In what manner its advocates would justify the retention of the tax is not clear.”
If the burden on this class is to be increased by making the poll tax unlimited, and applying it for the benefit of bondholders, such change should be made by a constitutional amendment and a clear expression by the people at the ballot box, and not by judicial construction in a divided Court.
The Constitution in a separate section, Article Y, section 2, pro-, vides that the poll tax shall be applied solely “for the purposes of education and the poor.” This is in no wise connected with the equation or limitation, and, therefore, when the poll tax is levied, whether within or beyond the limitation, no bondholder has any interest in the poll tax; whether its assessment in this act be stricken out or not by its limitation to $2, the) bondholder can in neither event have any interest in its proceeds, and failure to collect it because in excess of $2 in no wise concerns him. It follows that the bonds issued for.any valid purpose are valid, though the poll tax in excess of $2, out of respect for the Constitution, is not collected.
The three cases in 148 N. C., above cited, the last on the subject, reviewed all the authorities, including Herring v. Dixon, Tate v. Comrs., and by a unanimous Court it was held that no case (except one) conflicted with the doctrine therein again laid down, that the poll tax could not exceed $2, and should be applied only for education and the poor, and asserted that this question “cannot again arise.”
If the poll tax is unlimited, why did the Constitution provide that it should “never exceed $2”? If the poll tax can be levied and collected to an unlimited extent for the benefit of bondholders, why did the Constitution pledge that it should be applied only for education and the poor, and why was the whole subject reviewed and the constitutional provision sustained by a unanimous Court in the three latest eases on the subject?
The poll-tax payer was not “the forgotten man” when the Constitution was enacted and submitted for adoption.