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

The rock excavation to be without slope
The excavation "to be taken down to tht
full depth directed by the engineer, anc
with uniform bottom"
While the work was in progress, ant
after the plaintiffs had levied the first rs
sessment for payment of the same, tht
defendants herein, with others of the
original petitioners, filed their protes
against the further prosecution of th'
work under the contract. In this protes
the defendants state that, "at the time o
filing the petition referred to, as is knowr
to your body. q survey was made of sale
stream for nine miles, commencing a
Enoch Majors Shoals, by competcn
engineer, and estimates were made of The
cost of draining said stream. The engi
neer so 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 pu
down at the sum of six hundred dollars
This work is still unfinished, and the
aggregate assessments on the landowner:
along said stream and within the nine
miles aforesaid amount to something over
nineteen hundred $4,000 dollars. II
the work, as originally contemplated, Is
to cost as much more as this work alone
has exceeded the estimate, twill take al
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 fol
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-fve cents $3.50 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 filed their complaint in this ac-
ton. 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 ., Stat. Large,
Vol. Is, p. 623) "that 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 next 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 empowering the County Com
missioners to levy the assessment COM
planned of on the following grounds:
First: That it violates Sec %, 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.
l, of the Constitution, which declares
that "no subsidy, charge, impose tax or
duties shall be established, fixed, laid or
levied, under any pretext whatsoever,
without the consent of the people, or
their representatives lawfully assembled" /"
Third: That it violates Sec. II, Art. l,
of the Constitution, which declares that
"the right of trial by jury shall remain
inviolate."
Fourth: That it violates Sec. II, Art.
l, of the Constitution, which declares
that "no person shall be arrested, impris-
oned, despoiled or dispossessed of his
property'immunities 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. 10, Art. /,
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.
.Sirth: That it violates Sec. Sc, Art. !,
of the Constitution, which declares that
sail 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 of the public against the
will of its owner.
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 to
claim special compensation; while in the
exercise of the 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-
cording to value. In the latter case the
citizen receives no special remuneration,
but shares only in the general benefit re-
fcctcd back upon the community by the
just application of the whole proceeds
derived from taxation. To exercise the
righ of eminent domain there must be q
taking of property from its owner by the
power of the State. To constitute Il tax.
ing the owner must be disposscssed of hi,
property or be deprived in some form oI
its use, to which he is solely entitled
Until he is disturbed in the possession
or free Use and enjoyment of his proper
ty, there is no taking, and he has no right
of action, and is not entitled to compen