The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1880-12-16


lcAl or Logical subileties
or Tor the exercise Of philosophical acutenes
I Ct Judicial research. They are in struments
practical hatare, founded on the commo
+ business OF lie. adapted u common want
The people make them; III
I people adopt them the people must be suppo.
1 ed 70 read them with the help Of common sense
and canDO. BE- presumed to admit in them an
reconcile meaning" Story on Const. 45l.
constitution OF government does not an
can not from its nature depend ia any grea
/ degree upon mere verbal criticism or upon tn
import Of single words, .. That mus
I he tie frues, exposition which best harmonic
with It's design, its objects and its genera
structure Nattel b., 2 ch II, 235-6.
The suggestion - plausible at least. that tn
meaning Of 10 twics adopted by this court
Is Its most obvious one
By y, art g. of the constitution 1t is pro
| YIded that i've persons shall be elected II
each county VINO shall constitute q board o.
supervisors, with fun jurisdiction over roads
ferries and bridges, and who shall order coGn
- elections, etc. Certain matters for thell
cognizance are specified by the constitution
leaving it for the Legislature TO provide other
proper duties
Among the " General Provisions in art
II, l. z l6. No county shall be denied the
ri sht 10 raise etc.
Ihls as equivalent TO saying: Every couu-
~ shall have the right, etc.
The right shall not be withheld or refused
because II Is the intent Of the instrument that
1t shall be possessed by every county, secure
from denial By THAT power which, but for this
limitation, might deny it.
A n anal ysis of section 16 shows that its pro
Visions are Inconsistent with me assumption
OF mere address to the Legislature, aud in
dicates a purpose to exclude legislative inter
vention.
Why. the minute details of the section, tine
specification of the right to raise money, the
manner OF raising it. the amount, the object
for which is may be raised, and the exclusion
OF the abuse OF the right 10 raise money for
the specific purposes, by prohibiting it, ap-
preparation for any other purpose If the
section confers on the counties the right men,
toned, those details are appropriate; if 1t IS
merely admonitory to the legislature, they
seem out OF place.
When the constitution declares a right and
defines the circumstances under which, and
the manner in which it may be exercised, the
specification Is prob bItion against legisla.
tive infringement of the right.
The fact that he section says mo county
shall be denied, and does not mention the
board of supervisors, does not alter the case.
The county was mentioned in that connection
to adapt the clause to the existing order of
things and the laws in force at the time the
was adopted.
This constitution found in force this statute
ry provision The board of police of any
county may levy special tax for the erection
Or repair of the court house, iail or other coun-
ty buildings, ami bridges, whether the same
shall exceed the state tax or not, to be applied
10 no other purpose" Code 1871, p. All, art.
y.
1t is apparent that this suggested the con-
stitutIo nal provision now under considera-
ion. The intention must have been to invest
with the force OF fundamental law the right
IF the counties to raise money and pay for
hese local affairs. 1t was fit that they who
were to bear the burden of maintaining them
should have the right to determine their char
icter and pay for what they chose to have.
The right Of the legislature to regulate the
manner of exercising the power conferred IS
dan l.
BY legislative action. Any conditions may be
attached 10 the exercise OF the right that do
lot amount to an infringement of it. Since
he right is secured the county, it may be
hat the legislature can require even vote of
he people of the county upon the question
o the character and amount of the expendi-
ures.
The fact that the trainers of the constitution,
n the face OF provisions in the constitutions
If other states restrictive of the power of local
aXation, inserted the section under consid-
grafton, strengthens the conviction that they
Intended to secure to each county. beyond the
each OF legislative denial, the right specifcal-
y conferred.
And the fact that the provision was not in
he constitution of 1882 but that the subject
vas under that constitution, left to legislative
shows that change was intended by
asserting it in the present constitution, and
hat 1t meant something. To say that the
conscience merely of the legisla, ure is ad-
dressed, is to fritter away the provision. The
viii Of the sovereign is that the
light shall not be denied.
The word sufficient does not suggest the
dea of legislative determination of the amount
% be raised. The authority is TO raise enough
money, not too much, for the objects named
What * necessary and suite eHt is to be de-
ermined by the facts in each case. The board
If police under the statute formerly exer-
Used the power of determination. This power
vas by the new constitution continued in the
same body by its new ma ne.
The words, "and other necessary convent
,nces for the people of the county" aye add
ID to the objects before specified to embrace
Kings Of the same kind, considered necessary
or he public good. Being for the people Of
he county it seems harmonious with the prin-
;iple OF local government that they who are
Immediately concerned should be the jul ges
If what are nece sary conveniences to them.
The division of the state into counties and the
to local management every thing
except what pertains 10 the state at large Is
'avOrite theory, and has characterized the
government Of this state. This feature is pre-
served in the present constitution, and the
light of each county 10 do certain things, with
-estric ions on abuse of the right, is elevated
o the security of constitutional quantity. 1t
his be not the meaning of the section under
review, its insertion was folly.
There is danger of constituting the cOnsti-
ution by the varying circumstances of sOcie-
Y and the apprehension that may arise of the
abuse OF rights in some localities. The consti-
utiOn treats all counties alike. We must look
10 the system as applicable to all, and give
Effect to it, Local matters can best be left to
ocal control
ContemLOraneous contraction by legislative
action IS entitled to little weight in ascertain
ng the meaning of the cons iitution. This court
BAN not accept Legislative perversion as
guide 10 eXpound the constitution correctly,
and guard it from violation.
1t has been tte practice of the boards of
supervisors, in some of the counties at least,
10 levy taxes under Is without regard to
he limit imposed by the legislature; and
has this court, in cases calling for a
decision of this question, held that the boards
had the right to disregard the limitation.
This caused no revolution nor surprise, and
ed to no proposal to amend the constitution
ia this particular, although ii has been
amended in another matter.
In the acts passed since the decisions were
made, the legislature may have intended to
restrict only as it had the right.
Owing to the varied wants and conditions
Of the different counties, the legislature can
not adopt a rate of taxation suited to all. A
rate of taxation to be general must be large
enough for those which require most, and to
establish that Is to subject those counties
needing little to the very evil which it is urged
would result from the possession of unlimited
power of taxation in the counties. Authority
by the legislature to raise more
money than is needed is just as harmful as
power derived from the constitution.
Hence the argument d6 ineOnUeRieRh and con-
siderations of policy are not in favor of leg
SlatlVe control IN THIS matter
Power must be lodged somewhere, and the
nearer it is to those whom is to fall the cost
Of its exercise. the better.
There is danger of unwarranted distrust of
boards of supervisors, caused by unfortunate
experience under unfavorahle conditions.
The constitution creates this tribunal, and
entruss it with important functions. Within
its constitutional sphere, it Is as much entitled
TO confidence as is the leg islature or this
court.
The decision cited by Judge George from
North Carolina, to the effect that counties
from time immemorial had possessed the right
Of local taxation, is a strong argum ent in
favor of the view that the purpose in adopt
ing the section under consideration was to
continue this right in the counties, and place
it beyond denial by the Legislature
Pittman, Pittlnan s. Smith, for appellant.
Cowsn s McCabe, contra,
To be reported.l