The opinion
"WaxkeR, I.,
concurring in result: I cannot agree that section 20, chapter 6, of the Public Laws of 1917, requires that where the people of a township or road district vote in favor of a loan for road construction and maintenance that the bond shall be issued and tendered by the county as its independent obligation, and that it thereby becomes liable to tbe State thereon and must look to tbe township or road district which applied for the loan for reimbursement in case of any loss by it. It appears to me to have been intended that the bond should be issued by tbe county in behalf of tbe township or road district to be benefited, as has been done in similar cases mentioned in the dissenting opinion of the Chief Justice, and others might be added to them. This is the usual and customary method adopted in sucb cases .and the method held by tbe majority to be that which was contemplated by the Legislature is not tbe usual one, but I believe the solitary instances in which the county bas been made to assume solely and independently the obligation of a township or road district where the entire benefit would accrue to *150 tbe latter. It is contrary to the spirit, if not the letter, of our Constitution, and also is in violation of every principle of justice and equity, that one should reap the whole benefit and another be made to pay for it. The statute should be very clear, therefore, before we adopt such a construction of it and bring about such a result. I agree with the majority that such a law would be unconstitutional and invalid, and we should follow the rule of interpretation that even where the language is of doubtful meaning, we may call, in aid of a proper construction, the fact that the statute will be void if a certain meaning is given to it, while it will be valid if it receives another construction. Of course, we cannot force a construction for the purpose of sustaining its validity by avoiding any conflict of its provisions with those of the Constitution, but in this case I do not think we are driven to any such necessity, as the language of the statute will well warrant the construction that the obligation of the county will extend no further than the assumption of the debt or liability of the township, for and in its behalf only, and not as a separate obligation of its own. But if the bond to be issued, where a township or district applies for the loan, is that of the beneficiary alone, and not of the county, which acts merely as an agent in its behalf, it seems to me that even in such a case the bond may be void upon grounds not necessary to be now stated, nor until so grave and serious a question is directly and squarely presented and necessary to be decided. I do not say that a statute cannot be so framed as to avoid the constitutional difficulty, but I will decline to express an opinion upon the subject until a concrete case is presented which requires me to do so. It is sufficient for the present to say, that as the majority are of the opinion, and have so decided, that the bond to be issued and exchanged for a State bond of like amount, at a lower rate of interest, is that of the county, and as that decision must stand until it is changed, and must be taken as correct unless reversed, my view is that, in this aspect of the ease, the statute, at least so far as it affects this particular suit, is invalid, being in direct conflict with the Constitution.
It is a principle which has been deeply rooted in our jurisprudence that no man’s property shall be taken from him and devoted to private purposes or uses except upon fair and just compensation. The great opinion of Chief Justice Ruffin, in Raleigh and Gaston R. R. Co. v. Davis, 19 N. C., 451 , established this proposition long ago beyond any question, and it never has been doubted since, but frequently affirmed in so many, perhaps, as a hundred cases. We have recently said, in Lloyd v. Venable, 168 N. C., at p. 535, citing S. v. Hanie, 169 N. C., 277 : “The right to a just compensation for property taken by the sovereign or by any corporation possessing a part of the sovereign power, springs from our sense of natural justice,” and “is a principle so salu *151 tary to the citizen and concerns so nearly the character of the State” that this Court, in R. R. v. Davis, 19 N. C., at p. 460 , declared it to be “an essential restriction upon the exercise of the power of eminent domain, even though no express provision may be found in our Constitution authorizing it, or requiring it to be made, when property is so taken for a public purpose; and we have adhered to this rule ever, since.” And Chief Justice Ruffin said in R. R. v. Davis, supra, at pp. 455 and 456: “The right of the public to private property, to the extent that the use of it is needful and advantageous to the public, must, we think, be universally acknowledged. 'Writers upon the laws of nature and nations treat it as a right inherent in society. . . . When the use is in truth a public one, when it is of a nature calculated to promote the general welfare or is necessary to the common convenience, and the public is in fact to have the enjoyment of the property or of an easement in it, it cannot be denied that the power to have things before appropriated to individuals again dedicated to the service of the State is a power useful and necessary to every body politic. Theoretical writers have derived it from the original and full property, in its highest sense, existing in the community or sovereignty of the State before any division among individuals, and they deem the right of resumption for common use to be tacitly reserved by implied agreement. Thus derived, the power has the sanction of compact, which probably furnishes the motive for tracing it to this source as constituting a sanction founded in morals and nature. But practically, it is immaterial whether the right be supposed to have been impliedly reserved because it ought not to be granted, or because it is a portion of the national sovereignty which is inalienable by the Government, or whether the right is created by the public necessity, which at the time calls for its exercise; its existence in every State is indispensable and incontestible.” He then gives different examples of the exercise of this power, in this way: “A familiar instance of the exercise of the powér is the levying of revenue, by taking from the citizen, from time to time, such portions of his property as may be requisite to conduct the government instituted by the nation. Another instance essentially of the same character is that of devoting private property to public use as a highway. A nation could not exist without these powers, and they involve, also, the welfare of each citizen individually. An associated people cannot be conceived without avenues of intercommunication, and, therefore, the public must have the right to make them without or against the consent of individuals.” He then further argues' in favor of compensation as an inherent or a sacred right to be implied from several provisions of our Constitution, as follows: “The principle is, however, so salutary to the citizen and concerns so nearly the character of the *152 State that it may well be urged that it must be consecrated by its adoption in some part of tbe free Constitution of this State. Ve should be reluctant to pronounce judicially our inability to find it in that instrument. If it be not incorporated therein, the omission must be attributed to the belief of the founders of the Government that the Legislature would never perpetuate so flagrant an act of gross oppression, or that it would not be tolerated by the people, but be redressed by the next representatives chosen.”
The clause of the Constitution that “no freeman shall be disseized of his freehold or deprived of his life, liberty, or property but by the law of the land” seems to have impressed him with the belief that it was intended in general terms, it is true, to protect the citizen from the taking of his property, either directly, by the exercise of the power of eminent domain, or indirectly, by the- exercise of the power of taxation, without just compensation, for he also says that the “clause in question is restrictive of the right of the public to the use of private property and impliedly forbids it, without compensation,” though not so obviously as other considerations.
“Under the guaranty of this article, it had been held, and in our opinion properly held, that private property is protected from the arbitrary power of transferring it from one person to another” is another clear and emphatic declaration in favor of the citizen and the enjoyment of his property without fear of having to surrender it, or any part of it, and receiving no just equivalent for the loss he thereby sustains. I could not cite a stronger or more conclusive authority to show that it is a well-recognized principle in our jurisprudence that no citizen can be made to give up what he has for another’s exclusive benefit, and not even for the most important public purposes, without receiving a just compensation for it. But the question has been absolutely and forever settled by more recent decisions' of this Court. Harper v. Comrs., 133 N. C., 106 ; Faison v. Comrs., 171 N. C., 411 ; Keith v. Lockhart, 171 N. C., 451 ; and the cases in the other jurisdictions, and the text-writers, support this position very strongly and almost, if not quite, unanimously.
The Harper case is sufficiently illustrative of the rule, and has been affirmed in numerous cases. There it is said, quoting two of the head-notes which accurately report the principle: “2. The Public Laws of 1903, chap. 554, if regarded as an act authorizing the imposition of special assessments, is invalid because it authorizes assessments on the real estate of the entire county, including the real estate of the township withdrawn from the benefits of the stock law and which would receive no benefits from the fences erected by the commissioners. 4. The Code, sec. 2824, providing that for the purpose of building stock-law fences the county commissioners may levy a special assessment on all *153 taxable real estate ‘within the county, township, or district which may adopt the stock law,’ does not authorize the imposition of an assessment on the real estate of a township withdrawn from the benefit of the stock law by express legislative enactment for the purpose of raising money to replace the money withdrawn from the general fund to pay the expenses of fences erected by the commissioners.”
This righteous principle has been approved by every authority known of, because it is the one that contains the essence of honesty and fairness and the very germ of the moral law, and especially that of the Golden Eule. If we adopt any other principle it would lead to intolerable wrong and gross oppression. All the Judges now on this bench concurred in this principle of justice, as stated in that case, the Chief Justice and the writer of this opinion in the case itself and all that it decided, and the other members of the Court in subsequent cases by citing that decision and approving it without a dissenting or doubting word.
I believe in a strict adherence to those principles which are, or should be, the basis of all laws, without exception, whether they come to us from the body of the common law or the statutes enacted to adjust that great system of jurisprudence to present condition, or to supplement it by such, new provisions as will round it out so that it may be adapted to modern requirements. Any man having a just conception of the rights of his neighbor, using that word in its broadest sense, must accept this doctrine as applicable to any phase of human life, for our laws are founded upon the Decalogue; not that every case can be exactly decided according to what is there enjoined, but we can never safely depart from this short but great declaration of moral principles without founding the law upon the sand, instead of upon the eternal rock of justice and equity. Do not exact from your neighbor what you would most unwillingly give up to him. It is, therefore, manifestly right that our law should have declared that nothing shall be taken from the citizen, whether in the form of seizure directly for public uses or indirectly by way of taxation, unless he is fairly paid for it, and that is the reason why every man is so deeply jealous of his property rights, for he rebels against an act of injustice. It is an innate principle and easily finds its expression in every constitution and generally in every statute where any invasion of the citizen’s property is attempted. The- Legislature never attempts, except in rare instances, to take from him that for which it does not pay, or for which it does not provide for payment. It cannot resist the united voice of man in a cry for justice and fair play.
So I say that the Legislature had no power to declare that the people of the county of Johnston, in this case, should be made to pay for that for which they do not receive, and cannot receive, any benefit. A con *154 trary doctrine would lead to tbe gravest wrong and imposition and would put a weapon in tbe bands of tbe Legislature by wbicb to crush and even destroy tbe citizen. We know that tbe Legislature would not consciously or advisedly use it, but that is not tbe question, wbicb is one of conceding tbe existence of tbe power itself. Our system of government was built upon no such foundation. It was intended to stand forever (and we all confidently hope it will), and not to fall by its own iniquities and tbe weight of its own wrongs against tbe people. It is just because I firmly believe, and have, a confident hope, in tbe perpetuity of our institutions that I give expression to these views, so essential to make that belief and that hope assured facts.
Referring once again to the authorities, my clear belief is that the very recent decision of this Court (Faison v. Comrs., 171 N. C., 411 ; S. E. Rep., 481), wbicb was approved by all of us, is decisive of this case. It j>resented the very question we have here to consider, and none of us then doubted, but all unreservedly agreed, that taxation of the many for the sole benefit of the few was not only unjust, but unconstitutional, and wholly in conflict with our sense of fairness and right. This has been the constant and unchanging view of this Court whenever the question has been presented to us for decision, and I hope it always will be, for whenever we reverse this wholesome doctrine it will open the gates to a flood of intolerably harsh legislation. Tbe constitutional principle of uniformity, as all the authorities say, forbids the taxation of the many for the sole benefit of the few, or the taxation of the few for the sole benefit of the many. In whatever form this odious system appears, it is wrong, unjust and burdensome, and opposed to every just principle of law and of the Constitution. It must cease, or we can never redeem the promise wbicb, by our compact,'we adopted with the sanction of the people; they were assured that this shall be a government founded upon the right, and not one of injustice and oppression. Freedom and security of the weak against the strong and mighty can never exist under any other principle of government.
It appears to me that there is absolutely no analogy between the aid of this State to one township and that to its great public highways, such as the North Carolina Railroad, the “Wilmington and Weldon Railroad, and the other great arteries of commerce within our borders extending across our entire domain and permeating nearly every section by their lateral branches. These are surely and essentially public highways of the first class, beneficial to the general public, and the very foundation of our hopes for the enlargement and development of our industries of all kinds. They affect the general public in a very material way, and their beneficial effect in promoting the general convenience and welfare and in contributing to the general prosperity cannot reasonably be *155 doubted. It was on this ground that the subscription of the State to their stock was upheld by this Court. But here we have the whole county paying for the- construction of a neighborhood road within the confines of a single township and saddling its obligation to pay for this local benefit upon the other sections of the county which derive no benefit from it.
I would not utter one single word against road building in this State. Nothing contributes to the convenience, comfort, and prosperity of the people more than good roads, and if I entertained any doubt as to the validity of any statute providing for them it would quickly be resolved in their favor. In many respects they are of greater benefit to the State and her people than even railroads are, but we must not surrender a great principle of right and justice to a single cause, however deserving it may be, lest the concession once yielded and established may be recorded as a precedent, and thereby many evils may creep into the State. Better to do right all the time and tread upon the beaten way. It is safe and sound doctrine and has averted many misfortunes to those who would pursue the other course. A precedent, as Disraeli once so wisely said, embalms a principle, the product of wisdom and experience, and we do well when we follow it, at least so long as it is right. We must pursue this sane policy even against attack from every side, for it must be remembered that sometimes it is much easier to be critical than to be correct. Jones v. Comrs., 137 N. C., 579 , has no application to this case. There the Legislature merely required the county to pay its own legitimate debt. The other eases relied on by plaintiffs are no more in point.
My conclusion is, that if it was intended by this statute that the county should issue its own bond for the debt, the proper obligation of the township, which this Court now decides to be the case, the Legislature had no power under the Constitution to-require it of the county, and that in this respect the legislation is void and of no effect. What the Legislature may do within its rightful power and how far it may go without exceeding it are questions not now before us. I believe that my conclusion is sustained not only by the cases decided by this Court which I have cited, but also by many decisions in other jurisdictions and the text-writers, which it is not necessary to collate, as our own cases are quite sufficient as authorities.
There is more difficulty in dealing with the larger question involved in the defense — that the entire statute is invalid — and I forbear to discuss it, as I cannot foreshadow in what particular form it will be presented, if it ever comes before us, nor upon what special facts. It is much too big a question to be anticipated by me alone, and as the majority have deemed it wise to pretermit any reference to it, I will follow *156 their example and also be silent, though I am not sure that in a certain phase of the case we would not be justified in giving expression to our opinion in regard to it; but, as I have said, it is better perhaps to wait until we are required to decide it before doing so, owing to its great importance and the far-reaching consequences of such a decision one way or another. This induces me to withhold my opinion.
We all will hail with gladness the day when a great system of highways will penetrate every section of the State, reaching to every city, town and hamlet, or easily accessible therefrom, producing a larger measure of so'cial and commercial intercourse among our people, and thereby bringing them into closer communion, with a better and ever-increasing understanding of each other and of their common interests, resulting at last in a united endeavor to coordinate their efforts in behalf of the general welfare and prosperity, so that every citizen may ultimately and fully enjoy the blessings of our free institutions under our Constitution and laws. This will all come to us, we hope, some time, and we should strive without ceasing to hasten the day of its coming. But we should not begin this great work of internal improvement except in accordance with the Constitution and the sanction of the law. It may be that this act in other respects has such a sanction, and if not, the* voters will soon have, if they see fit to take advantage of it, an opportunity to declare their supreme will concerning it.