The news & observer., 1897-04-24

tied An Act to RalSe Revenue WMcn
fixed the amount of capitatiOn tax and
the tax ON property, are repugnant to the
Constitution because of their violation
of the constitutional equation between
the tax on property and that on the poll.
And if these parts of those sections are
unconstitutional, then of course the act
which the plaintiff seeks to have per-
formed by the Auditor cannot be done
and the demurrer should have been sus-
tained. Section fixes the capitation tax
at $1.29 without conditions and without
reference to any other section or prOvi-
sion Of the act There is therefore no
room for inquiring into the intention of
the lawmakers. It cannot be said that
when they wrote $1.29 they meant $1.3S.
1t must be presumed that they knew
what they were doing and that they
meant to do what they did. The act
was perfectly regular on it's face, had
passed its several readings and was duly
ratified, and no proof as to mistake or
error can now be heard in this court
to contradict it's provisions. Carr VS..
Coke, III N. G. So, we arrive at the
conclusion that upon the face of the act
the Auditors duty would be to send out
the forms with the amount of the capita
ton tax fixed at $1.29-the amount speci-
fed in the act-if that portion of the act
is in accordance with Article V. Section
1 of the Constitution. We will now dis
cuss that part of the question.
The capitation tax under the Constitu-
ton can never exceed 81, and the tax on
each head subject to taxation shall be
equal to the tax ON property valued at
$500. The position of plaintiff in this
action is that the language of the Con-
stitution makes the tax on property the
basis from which the capitation tax is
calculated and determined; that one thing
cannot be said to be equal to another
thing unless that other is clearly known
and certain, and that therefore the tax
on property is FIRST to be levied and
fixed before the capitation tax can be
adjusted to fit it property taxi
under the Constitution; that the
General Assembly followed this course,
placed the property tax at 46 cents on
the 500 worth and by mathematical
calculation apportioneds the taxes on
property to the several purposes of State
necessities i'm detail, i. e., % % cents for
State purposes, 3 1-3 for pensions, 20
though that body ON the face of the act
failed to preserve the constitutional
equation when they levied the poll tax at
81 % and the tax on $500 worth of prop
erty at $1.3S, yet, nevertheless: in the
attempt to levy a poll tax. having fixed
the tax on property at S1.3S on $500
worth, the capitaton tax is. by force of
the Constitution itself, fixed at $1.3S and
hat tl,ar hn tn no
into the act and deemed in law to have
been levied.
The claim of the plaintiff means simply
this: That although the General Assem-
bly, in language entirely free from doubt.
has violated provisions of het Con-
stitution by disturbing the equation of
taxation. vet the Auditor cannot
he compelled to give force to
II law unconstitutional on its
face because the Constitution has
fixed the equation The Constitution
does not levy any tax upon anything.
That instrument simply provides that
public revenues may be raised by taxa
ton. and fixes the equation to be OBJ
served by the Legislature between the
poll and property taxes. and leaves the
Legislature solely the duty of levying
the public taxes and the discretion of
fixing the amount necessary-alWayS
keeping in mind the limitations preScrlb-
ed If the General Assembly should at
any time levy tax ON property and fail
to levy Il capitation tax, it could not be
contended that the provisions of the Con
stitution in regard to the equation of
taxation could supply the omission and
read into the defective law a capitation
tax equal to the property tax levied ON
$500 value Of property Such a section
in a revenue law would be void. because
of the failure of the lawmakers to levy
the taxes under the constitutional re-
quirements. Neither can the Constitu-
ton be invoked in a case like the one
before us to fix the poll tax in a different
amount from that prescribed in the act
on the alleged ground that as the Gen
eral Assembly had fixed the tax ON prop
erty though the constitutional pro-
vision by it's own force applies its cor
rective influence. over-rules the amount
fixed By the General Assembly and ad-
justs the equation. The Constitution is
Il chart which must be consulted and
followed. but in the matter Of taxation
it is absolutely indispensable that the
General Assembly, by proper enactment
give life and effect to the provisions of
the Constitution by making the levy and
providing the machinery for collection.
If the Legislature failed to discharge
it's duty. there is no help. If in its action
it disturbs the equation of taxation. the
sections or parts of sections containing
the violation are void. and the courts can
lend no aid by judicial decision, but
must declare the offending provision of
law void.
In view Of the great public interest
concerned we think it proper to say
Though not necessary to a decision of
this case), that while the parts Of sections
and 3 of the act above referred to,
which concern the amounts of the capita
ton tax, are void because they disturb
the equation beween property and poll
taxes, yet the remainder Of the act is
valid; and that although the Revenue
Act of 1897 contains clause which re-
peals all acts and parts of acts contrary
to its provisions, yet the parts Of sections
2 and 3 of the act of 1897, being uncon-
stitutional and void, it follows that those
parts of sections 2 and 3 Of chapter 116
of the Acts of 1895, which levy the
l. L.