Yorkville enquirer. [volume] (Yorkville, S.C.) 1855-2006, 1873-09-18

and authority to make every bylaw or regu-
laton that shall appear to them requisite and
necessary for the security, welfare and conve-
nience of the said city," and "to make such
assessments on the inhabitants of Charleston,
or those who hold taxable property within
the same, for the safety, convenience, benefit
and advantage of the said city, as shall ap-
pear to them expedient."
The city council of Charleston, acting upon
their construction Of this provision of the city
charter, did. of their own motion, subscribe in
the aggregate, s2,300,000 to the capital stock
of various Railroad companies, whose lines,
then in course of construction, commenced
within the corporate limits and extended into
neighboring States The Court of Errors of
this State sustained the action of the city
council as warranted by the charter-powers,
and as not improper exercise of the author
ity incident to the governmental admnistra-
tion of munici pal corporation.
The Mayor and Aldermen of city and
Board of County Commissioners, are vested
with cognate powers, from the nature of their
offices, as the "proper" or representative au-
thorities of their respective corporations. In
the case of the State of South Carolina, Ex
Rel c. E. Lartigue ct al, rs. the Board of
County Canvassers Of Barnwell coun:y, deci-
ded by our Supreme Court at the April term,
1878, the Court say, incidentally "the said
county being corporation, the representatives
Of sohich are the County Commissioner"
The plaintiffs further alege that "the sub
scription, in the manner proposed by the de-
PENDANTS, will result in taking the private
property of the plaintiffs, by taxation, for the
use of corporation, without the consent Of
the plaintiffs, or just compensation to them
therefor, in violation of section %, of Article
/, of the constitution of this State"
The clause of the Constitution referred to is
not pertinent to the matter in issue, nor is the
proposed tax in anywise repugnant thereto.
Section %, Article of the State constitution
relates to the exercise of the right of eminent
domain by the State, and imposes restriction
thereon. This is a right entirely distinct in
its origin and operation from the power of
taxation. In exercising the right of eminent
domain, the State takes from the property
owner, in property, more than the share that
he is bound to contribute, as citizen, to the
general good, and the State compensates him
therefor. In exercising the taxing power, the
State takes from the property owner his exact
proportionate share, in money, for the advance
ment of the common interest, aoitiout conapen-
sation, save in those advantages reflected back
upon the individual from the promoted well
fare of the community.
The 18th and 9th clauses of the complaint
were abandoned by the plaintiffs, in the argu.
ment, as untenable.
The further objection, by plaintiffs, that
even though the defendants have the author
ity to subscribe to the capital stock of the
said Railroad Company, they are not author
lied to issue the proposed bonds, cannot be
sustained. The power TO issue the proposed
bonds is corollary from the authority to
subscribe. In every grant Of power, there is
conveyed the means necessary to make it ef-
fective.
1 have considered the questions at issue
solely upon their merits, and without inter
posing those technical rules of practice which
would have justified the Court, sua sponte, in
dismissing the complaint A recent eminent
authority on the law of injunctions, says that
"the issuing of bonds and the levying and
collecting of a tax, in aid of subscriptions to a
railroad by County Court, will not be en-
joined on the ground of want Of jurisdiction
in the Court to take such proceedings without
vote of the people, since sale of the tax
payers property, under such proceedings,
would not divest the owner of his title, and
he can maintain an action at law for the
property, and for damages for its detention"
(High on the Law of Injunctions, p. 215 and
393) Vide also, State Us. Parkville, etc., 80
Mo. 400; approving Sayre Us. Tompkins, %
Mo. 443.
In view, therefore, of the law and the facts
in the premises, ! am of the opinion that in
subscribing to the capital stock of the Chester
and Lenoir Narrow Gauge Railroad Compa-
ny, the County Commissioners of the county
of York have exercised a discretion within
the scope Of their legal powers, and that in
aiding in the construction ofa railway through
the said county, they will be giving much
needed impulse to the civilization and mate
rial development of the county, of which they
are, by the Constitution and laws, the chief
administrative officers.
do, therefore, order and decree, that the
preliminary injunction heretofore granted by
me, in this case, be and is hereby dissolved,
and that the complaint be dismissed with COSTS
T. j. MACKEY, Circuit Judge.
September s, 1873.