The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1870-06-10

Such being the character of this opinion, it
will be respected only to the extent to which 1t
is Of authority, rs the Judgment of the court
upon the point before it. and that was, that
the State, by act of confirmation, was estop-
ped from inquirins whether the subscriptions
were or not violation of the city charter.
But, it is said, the other judges did not con-
cur. In the decision on the point at issue,
they did, doubtless, for none appear dissent
ing, and they would scarcely have done other
wise. But that they concurred in other dcta
ofthe Judge, delivering the opinion, am slow
to believe, and particularly since the decision
of this same court in case few years after.
In Horbeck VS.. the City Council. l3 Rich
ardson Law Reports, 702, the plaintiff, charged
with a portion of the expense incurred by
Council in widening street, for reason ofthe
advantage resulting therein to his adjacent pro-
perty. as estimated by committee. moved the
court for prohibition on the ground that the
Slate itself had no power to authorize the col
lection of such claim by assessment. 1t was
questioned if the State had claim on indlvid-
uals for any advantage so resulting, or, II SO,
court decided, Chief Justice Dunkin, de-
livering the opiniou-an opinion which
had all the consequence an opinion can
take from the character and abilities of the in
dividual Judge by whom pronounced-tha
the State Is limited In its power of assess
ment; that 1t can assess only the share Of each
citizen for public duties; that it can only dele
gate the power to the extent only to which it
may possess it.; that the share of advantage
charged to a citizen, from the widening of
street, is no such duty, and cannot be assess
ed. The judges making this decision, could
not have actively concurred in that we have
considered. If the State may not assess the
share Of advantage from widening street,
it surely may not assess such share of advan-
,Of0
State. In the one case it is necessarily GER
tain there is advantage; in the other, that
there Is not.
If the Council may not assess to other than
public duty. when specially instructed by
the State to do so, it may not SO assess with
out the letter or the implication Of such in
struction, and the judges who decided Horl-
beck vs. Council, in 1860, could scarcely have
considerably concurred In the dicta of Judge
O'Neale. in Copes VS.. Charleston, in 1857. II
they did, it could not have continued their
opinion, or, If it did, it was but their opinion.
There were no rights determined by it. 1t
was in the nature of Judgment on plea in
abatement, which does not touch the merits
Of the cause, and which did not bind even
the relator himself in any other form of
action. And profound as may be our respect
for the opinion of those judges, 1t was not
judicial expression of the law, and cannot
bind the interest of any party who may assert
the right it undertook to determine.
1t has been decided, therefore, that the act
of confirmation renders binding The subscrip-
tions made by Council; 1t is apparent that 1t
does not 1t has not been decided that there
was original power in Council to make these
subscriptions; 1t Is apparent that there was
not. Without power the Council cannot
charge these subscriptions upon citizens; with
power, upon the principle of Horlbeck VS..
Council, it cannot charge them by assess
ment; and, as legal proposition, therefore,
the debt is not chargable on individual prop
erty.