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

without an Act OF the Legislature au-
thorizing them so to do, then this clause
of the Constitution might be successfully
invoked against their action in the prem
ises, as without the consent of the pco-
pie or their representatives lawfully as
sembled." In this case, however, the
tax has been levied by special legislative
authority. So far from forbidding by
implication the delegation Of the power
of taxation by the Legislature to public
corporations, the Constitution in express
terms authorizes the delegation of such
power, for ii declares (Section S, Article
0.) that "the corporate authorities of
counties, townships, school districts,
cities, towns and villages may be vested
with power to assess and collect taxes for
corporate purposes.
The third objection does not appear to
be we'll taken. The right of trial by jury
is not involved in the case at bar. 1t is
a settled rule of construction applicable
alike to constitutions and statutes, that
whenever common law term is used in
a statute, without any express statutory
definition, we are remitted to the COM
mon law to ascertain its full force and
true meaning. The term Fright of trial
by jury" is derived from the common
law. 1t is that inviolable right-the
most potent safeguard of the life and
liberty of the citizen-which every per-
son accused of crime in the Courts has
of being tried by jury of his peers, con-
sisting of twelve good and true men, law
fully drawn and empanellcd and duly
sworn. 1t is the mode of trial prescribed
in criminal accusations, and the term rs
used in the Constitution relates to the
trial of persons accused of criminal Of
fences. 10 hold that every party to a
civil action is entitled under the Consti
tuition to have the issues of fact arising
upon the pleadings determined by a jury,
would be to abolish our whole system of
equity jurisprudence, which is more an
cient even than the right Of trial by jury.
But whatever may be the rights of par
ties in other civil actions, the defendants
herein having voluntarily set this statute
in motion, and invoked the judgment of
the Court under its provisions, are clearly
estoppcd from urging this objection.
Where constitutional provision is de-
signed for the protection of the property
rights of an individual, it is competent
for him to waive the protection and con-
sent to such action as would be invalid
if taken against his will. Cooley Con.
Linn. ISL; Baker VS.. Braman, 6 Hill, AZ
The reasons given for overruling the
third objection apply equally to the
fourth, which is urged upon the same
grounds.
The fifth objection is, in my judgment,
as untenable as those which prccede it.
The objection that the Act is unconstitu-
tional because it provides that the decis-
ion of the Circuit Judge shall be final,
on appeal from the judgment of the
County Commissioners, cannot prevail
when urged by party who has himself,
by own voluntary action, sought such tri-
bunal. He must be deemed by his acts
to have waived every such constitutional
objection This has long since been set
tied law in this State. In the case of
People VS.. Murray Is Hill, 1885, it Was
held that where parties were authorized
by statute to erect dam across river,
provided that they should first execute a
bond to the people conditioned to pay
such damages rs each and every person
might sustain in consequence of the ercc-
tion of the dam, the damages to be as
sessed by a Justice of the Peace, in an
action on the bond to recover those dam
ages, the party erecting the dam was pre-
cIuded by acting under the statute from
objecting to its validity, and insisting on
his right to common law trial by jury,
(See also Lee VS.. Tillotson, 81 Wendell
I shall now proceed to consider the
sixth and last objection urged against the
constitutionality of the Act, on the
ground that it authorizes system Of tax
alton, other than ad caLorem, contrary to
the provision of the Constitution, that
"all property subject to taxation shall be
taxed in proportion to its value" 4
provision similar to this has been incor-
porated into the Constitution of every
American State, and it has received judi
cial exposition in long line of authori-
tative decisions. 1t may be now safely
held that the constitutional requirement,
that property shall be taxed in proper
ton to its value, relates only to the gen.
eral tax levied to deiray the ordinary
charges of the State government, and
does not prohibit the levying of an as
sessment or tax for local improvements,
based upon the special benefit conferred
upon the owner of the property, the value
of which is enhanced by such improve
ment. Indeed, this is in effect tax ac-
cording to value, for it is presumed that
the property benefited shall alone be
taxed. Says that eminent jurist, Mr..
Justice Cooley, in his admirable work on
Constitutional Limitations, (pp. 1919, J
'it would seem that the constitutional
requirements that taxation upon proper
ty shall be according to value Go not in
clude every species of taxation. Assess
mcnts for the opening, making, improv-
ing or repairing of streets, the drainage
of swamps, and the like local works, have
been generally made upon property with
some reference to the supposed benefits
which the property would receive there
from. Instead, therefore, Of making the
assessment include all the property of
the municipal organization in which the
improvement is made, new and special
taxing district is created, whose bounds
are COlNlCQ W lHc HILLS NllIlll hulSll
property receives special and peculiar
benefit in consequence Of the Improve
ment."
The Constitution of Michigan provides
that "all assessments shall be on property
at its cash value. The Supreme Court Of
that State, however, held that local tax,
levied in the city Of Detroit to meet the
expense of having public street, al
though levied not i'll proportion to value
but according to an arbitrary scale OF
supposed benefit, was not invalid under
the constitutional provision. Civilians
VS.. Detroit, Mich. j60)
In the case of Weeks VS.. Milwaukee,
10 Wisconsin 2+2, the Court held that
these local burdens are generally imposed
updcr the name of assessments instead of
t0res, and that therefore they are not
covered by the general provision in the