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

pay Tor Such grading ana paving.
1t was held that the Act WAS conslitu-
tional, and that "thc levy of tax on the
petition of the requisite number of land
owners on the land abutting the roads
improved, rated by the number of acres
of each owners tract, could not be adj
Judged unconstitutional for unjust inc
quality" (AIalchus VS.. Highlands, 4
Bush. 547.)
The Constitution OF California provides
that call property in the State shall be
taxed in proportion TO its value" The
Supreme Court Of that State held that
this clause referred to the general or or
dinary taxation to dclray the ordinary
expenses of the State, and its subordinate
local governments, and not to assessments
for local improvements; that assessments
for such purposes need not be laid on the
al raiorcm principle, but the Legislature
is at liberty 10 adopt different basis of
apportionmcnt-such rs frontage, super
fetal contents, or benefits reccirci En-
cry VS.. Gas Company, 2Sth CAL 34j; See
Dillon on Munic. Cor. Vol. ,, Sections
59S-603; and Burroughs on the Power of
Taxation 125.
The defence upon the merits under the
Statute is based upon the ground that the
Defendants have not been benefited by
the work done, and are therefore not lc-
gally bound to pay the assessment levied
on their property to dcfray the cost of
said work.
Upon this question of fact ten (l0)
witnesses were examined at the hearing
before me. Maj. T. b. Lee, the engineer
in charge of the work, testified that the
area of drainage effected by the excava-
ton ut the Shoals did not extend more
than q mile above the Shoals. 1t WAS in
proof that the lands of the Defendants
that arc assessed to pay the cost of such
excavation arc situated from four (4) to
six (6) miles above the Shoals. Mr..
Moore, the contractor, testified to the
same effect rs Major Lee, and both con-
Cured in the statement that neither of
the Defendants had derived any benefit
from the work done. The Plaintiff Fant,
Chairman of the Board Of County Com
missioners, testified in the cause, and
stated that he could not say that the
Defendants had received any benefit"
from the work which they are assessed to
pay for.
Not one witness testified that the De-
PENDANTS had been benefited thereby,
while, on the contrary, nine out Of the
ten witnesses testified that neither of the
Defendants had received any benefit
whatever from this ill-judgcd excavation,
effected at cost of S2,30I.
The Defendants petitioned under the
Act to have the lands lying along the
waters of Rocky River and Beaver Dam
Greek drained" for the reasons set forth
in their petition The benefit to be con-
ferred by the proposed Improvement was
the drainage OF the lands within the area
designated in the said petition. The
Commissioners did not even stipulate
with the Contractor that the drainage
prayed for should be effected by the pro-
posed excavation. 1t was simply con-
tract to excavate an indetcrminatc num-
ber of cubic yards of earth and rock.
The depth of the excavation was not
stipulated, but was left TO the discretion
of the engineer, who supervised the work
on behalf of the Commissioners. / am
constrained to find, rs q matter of fact,
that the Defendants herein have not been
benefited by the work done for which
their property has been assessed.
The Defendants having received no
benefit from the work done, are they le
gally liable to assessment to pay the cost
of the same? On this point the learned
counsel on behalf of the Commissioners
insists aryUend0 that they, in effect, acted
as the agents of the Defendants in the
prosecution of this work, being moved
and authorized thereto by Defendants
petition, and that the Defendants thereby
contracted with these Plaintiffs to pay
the assessments necessary to dcfray the
cost of said work, the same having been
executed in pursuance OF their said pcti-
ton. 1t docs not appear to me that this
position is tcnable. The filing of the
petition was simply part of the machin-
cry Of the Act. The condition precedent
OIL which the County Commissioners were
empowered to make contracts for such
drainage" What the terms and condi-
tions of such contracts should be, or
whether they should contract at all, was
a matter conf;dcd by the statute to the
judgment of the County Commissioners.
That judgment the Defendants had 10
power 10 control. While expressing the
"opinion" in their petition that the blast
ing out of the lower and upper Majors
Shoals would effect the desired drainage,
they remit the whole matter to the judg-
ment of the County Commissioners.
This clearly appears from the closing
paragraph Of their petition, which is i'll
the following words:
"Your petitioners therefore pray that
your honorable body ShaN ascertain the
.iacts stated above, and, if satisfactory,
shall have an estimate made Of the cost
of said proposed d.uinoyc in said river,
creek and tributary streams, and proceed
to have such water courses ditchcd and
shoals blasted ont and drained, according
to the true intent and meaning of the
statute on such subject made and pro-
yidcd."
But the Commissioners had no "csti
mate made of the proposed drainage"
for they simply entered into contract
to have an excavation made in Majors
Shoals, for which they were To pay a
specific sum per cubic yard, the number
Of cubic yards being left undetermined.
The cost Of the work was therefore an
unknown quantity ut the date Of the
contract for cxcavating. The Defendants
cannot in any legal sense be held TO have
entered into contract with the Commits
sioncrs 70 pay for the propose! work
without regard TO lis beneficial results.
1t is OF Tie essence OF Il contract that
it shall, for Il legal consideration bind
all the parties thereto. lis obligation Is
mutual. 1t is an essential incident Of
every contract that tl!c party who justly
complains of breach Of lis terms shall
have right Of action to enforce it. But
the Defendants could not, under the
statute, have enforced II demand that the
Commissioners should grant their petit
ton, or compelled them by any legal
procccdim" 10 execute thc proposed
drainage after they had decided 10 grant
II IL