The Anderson intelligencer. [volume] (Anderson Court House, S.C.) 1860-1914, 1879-08-28

While the work was in progress, and
after the plaintiffs bad levied the first as
sessment foc payment of the same, the
defendants herein, with others of the
original petitioners, filed their protest
against the further prosecution of the
work under tho contract. In this protest
the defendants state that, "at the time of
filing the petition referred to, as is known
to your body, surrey was made of said
stream for nine miles, commencing at
Enoch Majors Shoals, by competent
engineer, and estimates were made of the
cost OF draining said stream. The engi-
neer 80 employed represented the neces-
sity of blasting out the rock in said
shoals to the depth of four feet below the
bed of said stream, and the estimated
cost Of doing this work alone was put
down at the sum of six hundred dollars,
This work 10 still unfinished, and the
aggregate assessments on the landowners
along said stream and within the nine
miles aforesaid amount to something over
nineteen hundred (s1900) dollars. If
the work, as originally contemplated, is
to cost as much more as this work alone
has exceeded the estimate, it will take all
their lands assessed to pay for the work,
and perhaps more"
The work of excavating having been
completed according to the contract, the
plaintiffs levied an assessment, to pay for
the same, on all lands within the area
designated for drainage. The assessment
was not made upon the value, but upon
the acreage, at the rate of about two dol
lars and eighty-five cents ($2.95) per acre.
Before proceeding to decide the issues
OF law and of fact that arise upon the
pleadings, it is proper for me to observe
that after the Defendants had given due
notice of appeal from the Judgment of
the County Commissioners levying the
assessment in question, the plaintiffs
herein fled their complaint in this ac-
zion. The cause, however, was heard as
an appeal Pursuant to the Act constitu-
ting the County Commissioners the Com
missioners of Health and Drainage.
which provides (Section 2, Stat. Large. J..
Vol. Is, p. 623) 'sthat should any party
feel aggrieved by the decision or action
of the County Commissioners in the
premises, it shall be lawful for him to
appeal to the Judge of the Circuit at the
term Of the Court aeyt ensuing. whose
decision in the matter shall be final"
The complaint and answers were there.
fore considered only as serving to exhibit,
respectively, the judgment of the County
Commissioners in the premises, and the
reasons given therefor, and the grounds
of appeal from said judgment.
The learned counsel on behalf of the
defendants assail the constitutionality of
the Act e.crc@%ee--;;:ss .hc County Con.-
missioners to levy the assessment COM
planned of on the following grounds:
First: That it violates Sec. 20, Art. L,
of the State Constitution, which declares
that "private property shall not be taken
or applied for public use, or for the use
of corporations, or for private use, with
out the consent of the owner, or Just
compensation being made therefor"
Second: That it violates Sec. 81, Art.
/, Of tho Constitution, which declares
that "no subsidy, charge, impose tag or
duties shall be established, fixed, laid or
levie1, under any pretext whatsoever,
without the consent of the people, or
their representatives lawfully assembled. ;"
lhird: That it violates Sec. IL, Art. ],
of the Constitution, which declares that
".the right of trial by jury shall remain
inviolate."
Fourth: That it violates Sec. IA, Art.
1, of the Constitution, which declares
that "no person shall be arrested, impris-
oned, despoiled or dispossessed of his
propertylimmunities or privileges, put
out of the protection of the law, exiled
or deprived of his life, liberty or estate,
but by the judgment of his peers or the
law of land"
Fifth; That it violates Sec. IS, Art. 4,
OF the Constitution, which provides that
in all cases there shall be the right of
appeal to the State Courts from the de-
cisions OF the Board of County Commits
sioners, while this Act makes the decis-
ion of the Circuit Judge final.
t Sirth: That it violates Sec. SO, Art. 1,
of the Constitution, which declares that
''all property subject to taxation shall be
taxed in proportion to its value"
This case presents no feature that makes
the first objection to the constitutionality
of the Act at all pertinent No private
property has been taken either for public
use, or for the use Of corporation, or
for private use.
The Clause of the Constitution cited in
support of this objection is restriction
upon the State government in the exer-
else of the right Of eminent domain. In
the interest of the citizen it imposes q
limitation upon the sovereignty of the
State.
The right of eminent domain is that
supreme right of property, Inherent in
the sovereignty by which the private
property of the citizen, acquired under
its protection, may be taken or controlled
for the benefit osf the public against the
will of its owner. G
Pollards Lessee vs. Hogan, 8 Howard
In the exercise Of this right the State
compels the citizen TO surrender some
thing beyond his due proportion for the
public benefit, for which he is entitled 70
claim special compensation while in the
exercise of th;o power of taxation, the
State requires the citizen to contribute
only his due proportion in money for the
support OF its government at rate fixed
by law, which must be uniform and ac.
cordipg to value. In the latter case the
citizen receives no special remuneration
but shares only in the general benefit re.
aected back upon the community by the
just application Of the whole :proceeds
derived from taxation. 10 exercise the
righ OF eminent domain there must be q
taking Of property from its owner by the
power of the State. To constitute d TAX
ing the owner must be dispossessed of his
property or be deprived in sone form oi
its use, to which he is solely entitled
Until he ID disturbed in the possession
or FREQ use and enjoyment of his proper.
ty, there is no taking, and ho has no right
of action, and is not entitled to compen.
sation under this clause of the Constitu-
ton.
Gould va. Hudson River r. r. On. Is
Barb. GIG; Radcliff vs. Mayor, Sc, o.
Brooklyn, 4 N. Y; Fuller vs. Eddihgs
ii Rich. Law 2S9; Cooley's Con. Lin.