Jackson v. Breeland

• Decision Date: 25 February 1916
• Docket Number: 9263.
• Parties: JACKSON v. BREELAND ET AL., BOARD OF DRAINAGE COM'RS.
• Court: South Carolina Supreme Court

88 S.E. 128

103 S.C. 184

JACKSON v. BREELAND ET AL., BOARD OF DRAINAGE COM'RS.

No. 9263.

Supreme Court of South Carolina

February 25, 1916

Appeal from Common Pleas Circuit Court of Orangeburg County; Geo. E Prince, Judge.

Action for injunction by T. P. Jackson against M. L. Breeland and others, as the Board of Drainage Commissioners of and for Rum Neck Drainage District. Judgment for defendants on agreed case, and plaintiff appeals. Affirmed.

The decree of the circuit court was as follows:

"The complaint herein is for injunction. The allegations of the complaint briefly are that the defendants are the duly appointed and qualified board of drainage commissioners for Rum Neck drainage district, which has been organized under the drainage laws of this state for the purpose of draining certain swamp and low lands in Orangeburg county, and that the plaintiff is the owner in fee simple and in possession of a tract of land within the limits and bounds of the drainage district which will be affected by the organization of the district, the issuance of bonds, and the levy of assessments and that the drainage commissioners are about to issue bonds and levy assessments pursuant to such drainage laws. These allegations are admitted by the answer of the defendants. The complaint further alleges that the drainage laws of the state are unconstitutional, and therefore null and void, upon numerous grounds set forth in the complaint, which will be referred to hereinafter. The answer denies these allegations but admits that the amount of bonds to be issued is greatly in excess of the amount of 8 per centum and much more than 15 per centum upon the assessed value for taxation of all property located and assessed for taxation in the aforesaid Rum Neck drainage district.

Upon hearing the verified complaint herein, I issued a rule requiring the defendants to show cause why they should not be enjoined. The rule and entire case was heard before me by consent at my chambers at St. Matthews, S. C., on the 18th day of November, 1915, on the complaint and the answer filed by the defendants by way of return. The matter was argued by counsel on both sides. The case is one of considerable public interest, and I have given careful consideration to each of the objections made to the constitutionality of the drainage law.

In the outset, I am clearly of the opinion and so hold, that the validity of the drainage law depends upon the amendment to the Constitution of this state duly approved February 8, 1901, which is as follows: 'The General Assembly shall provide by law for the condemnation through proper official channels, of all lands necessary for the proper drainage of the swamp and low lands of this state, and shall also provide for the equitable assessment of all lands so drained, for the purpose of paying the expenses of such condemnation and drainage.' The drainage act and the amendments thereto I find were enacted in accordance with this amendment to the Constitution. In my opinion, at least some of the objections urged by the plaintiff, if not all of them, would be well taken, but for this amendment.

The first objection to the drainage law, as set forth in the complaint, is as follows: 'The aforesaid drainage laws deprive the plaintiff and others in like interest of his and their property without due process of law, and likewise take his and their private property for public use without just compensation previously made, in violation of article 5 of Amendments to the Constitution of the United States.' This objection is not well taken for the reason, inter alia, that the provision of the federal Constitution referred to has no application to the state government.

The fourth objection is as follows: 'The aforesaid drainage laws, when enacted by the General Assembly of South Carolina: (a) Did not originate in the House of Representatives, as all revenue acts are required to originate; (b) the title relates to more than one subject and such subject or subjects are not plainly expressed in such title or titles; and (c) were not read three times on three several days in both the Senate and the House of Representatives, in violation of section 15, 16, and 18 of article 3 of the Constitution of the state of South Carolina.' These objections were doubtless taken under a misapprehension as to the facts. I find that they are not supported by the official records, and they are therefore overruled without further comment.

The sixth objection is as follows: 'The aforesaid drainage laws are special laws, in violation of subdivision 9 of section 34 of article 3 of the Constitution of South Carolina.' This objection is overruled because the drainage acts are not special laws, but are general in their operation.

The third and ninth objections are as follows:

'The aforesaid drainage laws deprive the plaintiff of his property without due process of law, and also denies him equal protection of the law in respect to the full enjoyment and use of his aforesaid property, in violation of section 5 of article 1 of the Constitution of South Carolina.'

'The aforesaid drainage laws provide for rights of way over and across the property of the plaintiff without his consent, and without due process of law, and without compensation of reasonable amount first made, in violation of section 17 of article 1, and of section 20 of article 9 of the Constitution of South Carolina.'

I hold that these objections are not valid or well taken, for the reason that pursuant to amendment of 1901, above quoted, the drainage act does provide for the condemnation through the proper official channels mentioned in said act of all lands and rights of way necessary for the proper drainage of swamp and low lands in the said district, and further provides for the assessment of damages claimed by any one that is justly right and due to them for land taken or for inconvenience imposed because of the construction of the improvements, or for any other legal damage sustained, which shall be considered separate and apart from any benefit to such lands. I further find that the act provides ample remedies for the assertion and protection of the rights of all persons concerned.

The second, fifth, seventh, and eighth objections to the constitutionality of the act in

question are as follows, and will be considered together:

'The aforesaid drainage laws allow the taxation of the property of the plaintiff not in proportion to its value, but according to its local and physical condition, in violation of section 6 of article 1 of the Constitution of South Carolina.'

'The aforesaid drainage laws lay taxes upon the property of the plaintiff without assessment, and not upon the actual value thereof, in violation of section 29 of article 3 of the Constitution of South Carolina (1895).'

'The aforesaid drainage laws allow the levy and collection of taxes not in pursuance to law and without distinctly stating the purpose of such taxation, in violation of section 3 of article 10 of the Constitution of South Carolina (1895).

The aforesaid drainage laws provide for an assessment for taxation different from that upon which taxes for ordinary purposes are levied and collected, in violation of section 13 of article 10 of the Constitution of South Carolina (1895).'

These objections overlook the well established distinction between taxes and assessments. The drainage law does not provide for the levy of taxes, but, pursuant to the aforesaid amendment of 1901, provides for an equitable assessment of lands to be drained. The distinction between taxes and assessments is so well

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