State v. Tucker

• Decision Date: 07 March 1900
• Parties: STATE v. TUCKER et al.
• Court: South Carolina Supreme Court

35 S.E. 215

56 S.C. 516

STATE v. TUCKER et al.

Supreme Court of South Carolina

March 7, 1900

Appeal from general sessions circuit court of Anderson county George W. Gage, Judge.

W. H Tucker and another were charged with neglecting to clean out a running stream. From a judgment of the circuit court dismissing an appeal from the magistrate's court, they appeal. Reversed.

The following is the decree of the court below (Gage, J.):

"This is an appeal from the judgment of a magistrate. The prosecution is under section 1273, Rev. St. 1893. The cause has been carried to the supreme court upon a constitutional question. 54 S.C. 251, 32 S.E. 361. It was remanded to the magistrate for trial. At the second trial before the magistrate, defendants moved to dismiss the warrant because the act of the general assembly was in violation of certain other provisions of the constitutions of 1868 and 1895, not before passed upon. The magistrate refused the motion, and the appeal to this court is from his order. The right of the defendants to appeal from the order was not questioned before me, and I shall therefore not consider that question.

"The provisions of the constitutions of 1868 and 1895 now invoked are: Const. 1868: Article 9, § 1: Taxation shall be uniform and equal. Const. 1895: Article 10, § 1: Taxation shall be uniform and equal. Article 1, § 6: Property shall be taxed in proportion to value. Article 10, § 5: Certain corporate authorities are vested with power to tax, etc. Article 1, § 5: The privileges and immunities of citizens shall not be abridged; persons shall not be deprived of life, liberty, or property without due process of law; persons shall not be denied equal protection of the laws. Article 17, § 11: Laws of force 1st January, 1896, and constitutional when enacted, are continued of force if consistent with the constitution of 1895. I shall take up these subjects in an inverse order.

"If the statute in question was constitutional when enacted (that is, conformed to the organic law of 1868), and if consistent with the organic law of 1895, then it is yet of force. The only inquiry, therefore, is, does the statute conform to the two constitutions? And that must be judged by the other provisions above cited and relied on by defendants. These provisions embrace two subjects, to wit, the taxing power, and what is known as 'due process of law.' And these subjects I will take up in an inverse order.

"The subject last referred to was not embodied in the constitution of 1868, nor in the constitution of 1790. It was taken almost verbally from section 1 of the fourteenth amendment to the constitution of the United States. It has three clauses, to wit: (1) The privileges and immunities of citizens of this state and of the United States under this constitution shall not be abridged; (2) nor shall any person be deprived of life, liberty, or property without due process of law; (3) nor shall any person be denied the equal protection of the laws. I must confess my inability to understand the meaning of the first clause when in the constitution of a state, unless it means that the guaranties to the citizen in the constitution of 1895 shall not be abridged by the general assembly. That is true without a declaration to support it. The second clause has a well-defined construction. 'Due process of law' undoubtedly means in the 'due course of legal proceedings, according to these rules and forms which have been established for the protection of private rights.' Cooley, Const. Lim. p. 437 et seq. The third clause simply means that enactments shall operate in the same way on all citizens in like plight. In my opinion, the statute under consideration does not fall under the inhibition of any of these clauses.

"I have had more difficulty with the subject of the taxing power. Is the power exercised in the statute taxation? Is it uniform? The contention of the state is that the statute is an exercise of the police power. If done to protect the public health, that is so. But was the legislature aiming to protect the public health? The act was passed in 1878, and applied only to Anderson and Beaufort; and the articles to be removed were trash, trees, rafts, and timber, and from running streams, and the service was to be done in March and September, and by landowners. An amendment changed the time of service to May and August.

Did the same conditions of health exist in Anderson and Beaufort at the same times? Was it in accord with the laws of health to allow trash to remain in stagnant water, while directing its removal from running waters? Did the laws of health demand that such service be done in March, May, August, and September? If the public health demanded the services, why exact it of the owner instead of the tenant? The statute does not declare its purpose, and its terms negative the idea that the purpose was to preserve the public health. If not to preserve the public health, what object did the general assembly have in view? From a history of the legislation begun in 1878, and from a knowledge of current events, public in their nature, I do not doubt but that the statute was passed to preserve the lowlands of the country from overflow, and the ruin consequent therefrom. If that be so, can the statute be sustained? Running streams were located by natural laws. The public has an interest in them different from its interest in land. These streams passed along their way long before the proprietor acquired title to their banks. The owner of the banks is not permitted to actively obstruct the flow, to the damage of the proprietors above him or below him. Shall he be permitted to passively obstruct that flow? Not if this statute is effective. The right of the citizen to enjoy his property is not unlimited. He must enjoy it in such a manner as not to injure that of another. The general assembly has the power to adjust these mutual rights. The exercise of it is sometimes called the 'police power,' sometimes the 'taxing power,' and sometimes the 'power of eminent domain.' See Cooley, Const. Lim. p. 741 et seq. (*594, *595). To secure the end in view, I think the general assembly might levy a money tax on landowners upon or near streams for the purpose of clearing them out, or it might exact bodily service from them to do the same thing, in default of which it may prescribe a penalty. I have come to this conclusion after mature reflection. My opinion, therefore, is that the cause be remanded to the magistrate for trial and judgment."

Bonham & Watkins, for appellants.

M. F. Ansel, Tribble & Prince, and J. E. Breazeale, for the State.

McIVER C.J.

This is the second appeal in this case, the first being reported in 54 S.C. 251, 32 S.E. 361. Under that appeal it was adjudged that sections 1273 and 1274 of the Revised Statutes of 1893 are not in conflict with subdivision 11, § 34, art. 3, of the present constitution, nor are they repealed by subdivision 3 § 11, art. 17, of the constitution of 1895. This was held upon the ground that these sections having been enacted prior to the adoption of the present constitution, which is not retroactive, such sections are not affected by the provisions of the present constitution forbidding local or...