The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1872-03-26
THE SOUTH CAROLINA LICENSE LAW
Is IL Unconstitutional :
K1NesrREE, 8. G., March Is

KINGsrREE, 8. G., March Is.
TO THE EDITOR OF THE NEWS.
Having observed by the papers that the
question of the constitutlonality of the recent
license law is soon to be brought before the
courts, propose to make few suggestions,
with your permission, which I hope may be
of some service to those who may be engaged
In preparing the case for formal presentation
to the court.
treatise on Constitutional Limitations, page
IS, says:
''In considering the powers which may be
exercised BY the legislative department OF
one of the American. States, 1t Is natural that
we should recsr TO those possessed by the
Parliament OF Great Britain, after which. In
measure, the American Legislatures have been
modelled, aud which We derive our legislative
usages and customs. or parliamentary COM
mon law, as we'll as the precedents oy 1,hicn
governed. 1t is natural, also, that we should
Incline to measure the power of the legislative
department In America by the power Of the
IKE department In Britain, and to concede
without reflection thatl whatever the leg
islature of the country, from which we derive
our laws, could DO, might also be done by the
department created for the exercise OF leglsla,
against being misled BY comparison between
the two, we must bear In mind that the i'm.
portaut distinction already pointed out, that
with the Parliament rests practically the s0V-:
erelgnty of the country, 80 that 1t may exer-
else all the powers Of che government II IL
Wills 80 to do; while on the other hand the
Legislatures of the American States are not the
sovereign authority, and, though vested WIN
the exercise of one branch Of the sovereignty,
they are. nevertheless, In welding 1t, hedged
In on all sides by important limitations, some
of which are imposed In express terms, and
others by implications which are equally I'm.
perative."
The author of the above extract next goes
on to point out more particularly and definite
ly the powers of Parliament, and, also. 70
show very clearly that 1t is mistake to sup
pose that the American Legislatures are vest
ed with similar powers, for the reason that
thew are all controlled by written consiilu-
lions. But the common Idea is that q Leg,sla-
ture, even In this land of written constitutions,
is all powerful to enact any law 1t pleases,
unless such law should be In conflict With
the constitution. Ch. ]. Redaeld, Of Vermont,
discourses on this point as follows: ut has
never been questioned, so far as know, that
the American Legislatures have the same
unlimited power In regard to legislation which
resides in the British Parliament, except
where they are restrained by written constitu-
tions. That must be conceded, think, 10 be
a fundamental principle In the political organ
zation of the American States.n (Taorpe vs.
Rutland & Burlington Railroad Company, II
vt, l42.) Ordinarily, this Is true and the cor
rect doctrine, but doubt Ii 1t be true or correct
In South Carolina under the present constitu.
tlon.
In one respect, at least, South Carolina now
has the most peculiar constitution OF any one
OF the American States, 30 far ss have exam,
ined them. In q government OF enumerated
powers, such as the Government OF the United
States, it was exceedingly wise and proper
that the tenth amendment ito wit: "The
powers not delegated to the United States by
the constitution, nor prohibited by 1t to the
States, are reserved to the States respectively
or to the people, should have been adopted.
In the South Carolina Constitution, now the
fundamental law OF the State, there is, strange
in Sec. Al, Art. 1, in these words: 1.-THE emu
meration of rights In this constitution shall
not be construed TO impair or deny others re-
tanned by the people. and all powers not herein
delegated remain with the people,"
Now, the ordinary rule OF practice is where
stitutlonal, TO require him who makes the al
legation to point out the clause of the con-
stitutIon which .Jor6ids such law; whereas,
under the present constitution, lake II, the
rule will be somewhat reversed, and require
those who claim the power to point cut the
section or clause wherein 1t has been delegated
"Au po,oers not herein delegated remain 1olts
the people" Where Is the clause of the consli-
tuition which delegates The po,Der to enact
license law This, 1t will be observed, Is very
different from the question, where is the
clause which prohibits such law which
would be the question proper to be PROFOUND.
ed were II not for this singular clause In the
constitution. Were it not for this clause,
those who alleged the unconst!tutionality OF
the law would be compelled to point out the
clause wherein such q law Is either expressly
OF impliedly forbidden, OF else tall, on the
general ground stated above that all rower
to legislate is lodged with the Legislature ex.
cppt when restrained by the prohibitory pro-
visions Of the constitution.
But let us now turn to the constitution and
see what powers are delegated as to the Inn.
portant question of taxation. Remember
that the powers not delegated remain with
the people, that is to say the Legislature can
not enact any particular law unless the power
go to do has been delegated, either expressly
or by necessary Implication. The constitu-
tion, In its several clauses upon the subject,
is as follows:
to taxation shall be taxed in proportion to Its
value.n
Art. 2, Sec. SO: eAll taxes upon property,
real or personal, shall be laid upon the actual
value OF the property taxed, as the same shall
be ascertalned by an assessment made for the
purpose of laying such tax"
Art. IL, Sec. /: 1.-THE General Assembly
shall provide by law for a uniform and equal
rate of assessment and taxation, and shall
prescribe such regulations as shall secure a
Just valuation for taxation OF all property,
real, personal and possessory," &c.
Sec. 2 (same Art.:) "The General Assem-
bly may provide annually for poll-tax, not TO
exceed one dollar on the poll. which shall be
applied exclusively TO the public school fund.
And no additional poll-tax shall be levied by
any municipal corporation"
Sec. 8 (same Art.:J 1.-THE General Assembly
shall provide for an annual tax sufficient to
defray the estimated expenses of the State for
each year." :,
Art. <, Sec. S: ssThe General Assembly shall
levy at each regular session, after the adop-
tion of this constitution, an annual tax on all
taxable property throughout the State for the
support of public schools. There shall be as
sessed on all taxable polls In the State an an
nual tax of one dollar on each poll, the pro.
ceeds of which shall be applied solely to edu'
cational purposes: Provided, That no person
shall ever be- deprived Of the right OF suffrage
Tor the non-psyment of said tax. No other poll
or captation tax shall be levied In the State.
nor shall the amount assessed on eacn poll
exceed the limit given In this section.'
From even q cursory reading OF these pro
visions 1t will appear that the only suo)ects o.
taxation, as contemplated by the trainers o.
| the constitution, are property and td1a0s