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

pay LOT sucn grazing ana paving"
| 1t was held that the Act was constitu-
tional, aud that "the 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 ad.
judged unconstitutional for unjust ine-
quality" (Malchus ys. Highlands, 4
Bush. 547.)
The Constitution of California provides
that call property in the State shall be
Supreme Court Of that State held that
this clause referred to the general or or.
dinary taxation to defray 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
dd vdloren principle, but the Legislature
is at liberty to adopt different basis of
| pportionment-such es frontage, SUPER
ficial contents, or benefits received. (Em-
cry vs. Gas Company, 28th Gal. 345; See
Dillon on Munic. Cor. Vol. 2, Sections
69S-6O3; and Burroughs on the Power of
Taxation 1851
! 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 le.
| gally bound to pay the assessment levied
on their property to defray the cost of
said work.
Upon this question Of fact ten (1O)
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-
tion at the Shoals did not extend more
than mile above the Shoals. 1t was in
proof that the lands of the Defendants
that are assessed to pay the cost of such
excavation are situated from four az to
SIX (6) miles above the Shoals. Mr.
Moore, the contractor, testified to the
same effect as Major Lee, end both con.
| Cured in the statement that neither of
the Defendants had derived s;;y benefit
from the work done. The Plaintiff Fant.
Chairman of the Board of County Com,
missioners, testified in tho 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-judged excavation.
effected at q cost of $2,3O4.
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
s.5 drainage 0f TIC lands within tho area
designated in the said petition. Tho
commissioners did not even stipuIats
with the Contractor that the drainage
prayed for should be effected by the pro.
posed excavation. It was simply q con-
tract to excavate an indeterminate mum.
ber of cubic yards of earth and rock.
The depth Of tho excavation was not
stipulated, but vas left to the discretion
OF the engineer, who supervised the work
on behalf of the Commissioners. I am
constrained to find, rs a matter of fact.
that tile 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.
gelly liable to assessment to pay the cost
OF the same? On this point the learned
counsel on behalf of the Commissioners
insists arguendo that they, in effect, acted
as the agents of the Defendants in the
prosecution of this work, being moved
and autL -rized thereto by Defendants
| petition, AID that the Defendants thereby
contracted with these Plaintiffs to pay
the assessments necessary To defray the
cost of said work, the same having been
executed in pursuance of their said peti-
ton. 1t does not appear to me that this
position Is :eHs5le. The Cling &C :ae
petition was simply part of the machin-
cry OF the Act. The condition precedent
on 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
q matter confided by the statute to the
Judgment of the County Commissioners.
That Judgment the Defendants had no
power to 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 judp.
ment of the County Commissioners.
This clearly appears from the closing
paragraph of their petition, which is in
the following words:
"Your petitioners therefore pray that
your honorable body shall ascertain the
Jacts stated above, and, if satisfactory,
shall have an estimate made of the cost
of seid proposed drainage in said river,
creek and tributary streams, and proceed
to have such water courses ditched and
shoals blasted out and drained. according
to the true intent and meaning of the
statute on such subject made and pro-
yided."
But the Commissioners had no "esti-
mate made of the proposed drainage"
for they simply entered into a contract
to have an excavation made in Majors
Shoals, for which they were to pay q
specific sum per cubic yard, the number
of cubic yards being left undetermined.
The cost of the work was therefore an
unknown quantity at the date of the
contract for excavating. The Defendants
cannot in any legal sense be held to have
entered into contract with the Commits
sioners to pay for the proposed work
without regard to its beneficial results.
1t is of the essence of a contract that
it shall, for legal consideration. bind
ali the parties thereto. its obligation is
mutual. It is an essential incident of
every contract that the party who Justly
complains of q breach of its terms shall
have right of action to enforce it. But
tho Defendants could not, under the
statute, have enforced demand that the
Commissioners should grant their peti.
tion, or compelled them by any legal
proceeding to execute the proposed