#### ROY M. BANKS v. CITY OF RALEIGH et al.

(Filed 17 September, 1941.)

1. Municipal Corporations § 3: Taxation § 1 — Proviso that annexed territory should not he subject to taxation if improvements and services were not afforded it held void as violating rule of uniformity in taxation.

The statute in question provided for the annexation of new territory by defendant municipality upon the approval of the annexation in an election provided for in the Act, but further provided that if any part or parts of the annexed territory were not afforded municipal improve*36ments and services comparable to those afforded like sections now within the city limits within two years after annexation, taxes should not be levied or collected on such part or parts of the annexed territory. Held: The proviso in the Act that taxes should not be levied or collected on the part or parts of the annexed territory upon the contingency specified is void as being contrary to the constitutional requirement of uniformity in taxation. Constitution of North Carolina, Art. V, sec. 3.

2. Municipal Corporations § 3: Statutes § 5b — Unconstitutional proviso held separable so that statute, with proviso deleted, stands as valid.

The Act in question provided for the annexation of additional territory by defendant municipality if the question of annexation should be approved in an election provided for in the Act. The statute also contained an unconstitutional proviso that taxes should not be levied or collected upon property in the annexed territory if it were not afforded public improvements and services comparable with other like sections of the city. A majority of the Court being of the opinion that the unconstitutional proviso is divisible and separable from the remainder of the statute, the Act, with the unconstitutional part deleted, is held valid.

Appeals by plaintiff and defendant from Thompson, J., at July Term, 1941, of Wake.

Proceeding under Declaratory Judgment Act. cb. 102, Public Laws 1931, to determine validity or constitutionality of cb. 463, Public-Local Laws 1941, instituted pursuant to authority of Allison v. Sharp, 209 N. C., 477, 184 S. E., 27.

Tbe Act in question provides for an extension of tbe corporate limits of tbe city of Raleigb, provided tbe matter of annexation of tbe new territory “shall be submitted to tbe vote of tbe qualified voters of said city and of tbe territory to be annexed, voting together” at an election to be held for tbe purpose not later than 1 November, 1941.

In section 4 of tbe Act, it is provided: “If at such election a majority of tbe votes east shall be ‘For Extension,’ then from and after tbe first day of January, one thousand nine hundred and forty-two, tbe territory and its citizens and property shall be subject to all tbe laws, ordinances and regulations in force in said city, and shall be afforded tbe same privileges, benefits and facilities as are afforded other comparable parts of tbe said city now within tbe city limits: Provided, that if after two years from tbe effective date of tbe extension, any part or parts of tbe annexed territory have not been extended tbe same privileges, benefits and facilities afforded comparable parts of tbe city now within tbe city limits, taxes shall not be levied and collected on such part or parts not enjoying such privileges, benefits and facilities until tbe same are extended to such part or parts of tbe annexed territory.”

Tbe plaintiff alleges that tbe .proviso in section 4 offends against tbe constitutional rule of uniformity and renders tbe entire Act void, and that tbe bolding of an election thereunder will result in useless waste *37of public funds; wherefore be asks for an injunction to prevent such waste.

It is further alleged that a wide difference of opinion exists among the qualified voters in the city and the territory to be annexed as to the validity of the extension Act; that such confusion hampers an intelligent expression at the ballot box, and that in the interest of fairness the matter should be clarified prior to the election.

The defendant contends that the Act is valid in its entirety.

The court being of opinion that the proviso in question was void, but that this did not affect the remainder of the Act, so declared, and taxed the defendant with the costs. Both sides appeal, assigning errors.

Willis G. Briggs for plaintiff.

Wilbur H. Royster and P. H. Busbee for defendants.

J. G. Little, Jr., J. G. B. Ehringhaus, Jr., W. G. Harris, Jr., and William G. Lassiter for Raleigh Junior Chamber of Commerce, amicus curiae.

Stacy, C. J.

The question for decision is whether ch. 463, Public-Local Laws 1941, providing for an extension of the corporate limits of the city of Ealeigh, is valid in whole or in part.

It is the opinion of a majority of the Court that with the exception of the proviso in the 4th section which offends against the constitutional requirement of uniformity in taxation, Art. V, section 3, Anderson v. Asheville, 194 N. C., 117, 138 S. E., 715, the Act in question is valid, and that the proviso is divisible and separable from the remainder of the statute. R. R. v. Reid, 187 N. C., 320, 121 S. E., 534; Comrs. v. Boring, 175 N. C., 105, 95 S. E., 43. The Act then stands with the proviso deleted as was decided in the court below.

The view of the minority is, that the presumption of inseparability should prevail and the entire Act declared void. Minton v. Early, 183 N. C., 199, 111 S. E., 347; Keith v. Lockhart, 171 N. C., 451, 88 S. E., 640; Electric Bond & Share v. Security Exchange, 303 U. S., 419.

The pertinent principles of construction are well settled. The divergence of opinion arises over a different conception of the significance to be ascribed to the unconstitutional provision in section 4 of the Act and the effect of its elision. The majority voting in favor of affirmance, the judgment will be upheld.

On plaintiff’s appeal, Affirmed.

On defendants’ appeal, Affirmed.