
    The State, ex relatione Henry Horlbeck, et al., vs. The City Council of Charleston. The State, ex relatione Mary T. Sullivan vs. The Same.
    
      Constitutional Law— Widening Streets — Private Property taken for Public Use.
    
    Tlie Act of 1850, authorizing the City Council of Charleston, where a street has been widened by taking a strip of land off the lots on one side and adding it to the street, to assess the expense, or a portion of the expense, upon the lot-holders upon the opposite side of the street, whose lands have not been taken for public use, is unconstitutional.
    BEFORE MUNRO, J., AT CHARLESTON, JUNE, 1856.
    This was a suggestion praying’ a writ of prohibition to restrain the City Council of Charleston from enforcing the payment of certain assessments.
    His Honor refused the motion for a writ of prohibition, and the relators appealed.
    
      After argument in tbe Law Court of Appeals, tbe ease was ordered to this Court, where it was first heard in January, 1859. At that Term an order was made as follows:
    The Court is satisfied on all the grounds of appeal except the eighth in the first case, and the second in the other case. On those grounds, involving the constitutionality of the assessments, and their enforcement, “ grave doubts” are entertained, and upon them a re-argument at the next Term is ordered; and the attention of the attorneys concerned is directed to the Act of 1764, entitled “An Act to empower certain Commissioners therein mentioned to keep clean, and in good order and repair, the streets of Charleston, and for establishing other regulations in the said Town,” to be found in miscellaneous Acts from 1740 to 1778, marked C, in the Library of the Court of Appeals, at page 3 of the Acts of 1764 therein contained, and to the other previous Acts on the same subject, which may be found in the same and the other preceding volumes.
    ^ JOHN BELTON O’NEALL,
    
      President.
    
    31si January, 1¿59.
    The case was nd|w reargued upon the eighth ground of appeal.
    
      Lesesne, for appellant.
    In discussing this question, we must distinguish between the right of the State to take the property of particular individuals for some important public object, and the right to compel particular individuals, or the owners of particular property, to pay the expense incurred by the State in accomplishing the object. The latter is the question no w before us. Can the State (and I concede that the City, by virtue of its charter, may do all that the Legislature itself could lawfully- do in the premises), use the land of an individual for some public improvement, and then charge the compensation paid to the owner of the land, on certain individuals, because of tbe peculiar benefit conferred on their property? We do not gainsay, as was implied in tbe printed beads of argument of tbe City Attorney, the right- of tbe State to use a citizen’s property, even without compensation, if it is required for an important public road or street, or any other important public object. In other words, we admit tbe right of eminent domain in its fullest extent. But tbe right of eminent domain is entirely beside tbe question in this case.
    Tbe reason on which the propriety and justice of tbe right of eminent dopiain rest, is in its very statement an argument against tbe right now claimed. “ Tbe right of eminent domain,” says Ob. Kent, “gives to tbe Legislature tbe control of private property for public uses, and for public uses only.” 4 Kent Com. 389. It is essential, then, to tbe lawful exercise of tbe right of eminent domain, that tbe property taken away from its owner shall be taken for tbe use and benefit of tbe public — of tbe community at large, not of any individual or individuals. But if tbe whole community are benefitted by tbe appropriation of tbe individual’s property, tbe consequence is as logical and irresistible, as it is just, that tbe public should pay tbe expense. Tbe expense, whatever it may be, should be taken out of tbe public treasury.
    Again: it is only on tbe ground of public necessity, or great advantage to tbe public at large, that tbe land of tbe citizen can be taken and used by tbe sovereign. But tbe acts we are considering charge tbe owners of tbe adjoining lands, with one-half of tbe cost, expressly o.n the ground of peculiar benefit to them. Tbe language is “in consequence of tbe particular and local advantages resulting from tbe widening of tbe same.” Tbe city have used tbe land of individuals to widen George street. If tbe act was lawful >and proper, it must have been so because the widening of tbe street was a matter of benefit to the public at large. And I admit it to be so. If it be a benefit at all, it is so to the public at large. But if the benefit conferred is on the whole community, how can the cost be charged on a few individu- ' ais, and not on the public treasury ? In the Railroad Company vs. Chappell, Eice 888, it was decided that railroads are public improvements, and therefore private property may be taken and used for their construction. (P.-899.) But suppose the State were to build one for the public benefit, the adjoining proprietors would certainly be peculiarly benefitted. But no one would contend that they could constitutionally be compelled to pay the cost. And I am not able to perceive any difference between that case and the present one.
    I confess the proposition involved in these grants of power to the City Council is, to my mind, very startling. I can understand why, if a great public improvement were needed, and it could not be accomplished without using my land, it would be right and proper to take it. But it seems to me equally clear that I have a right to enjoy my land according to my own pleasure, so far as I do not render it a nuisance to my neighbors or to the public. If, for example, it becomes a pool of stagnant water, so as to generate disease, it is proper that it should be drained or filled up at my expense, if I refuse to have it done myself. But, if it is inconsistent with my taste or my pecuniary means that it should be improved in a particular way, my sense of liberty and justice revolts against the idea of power in the State or city so to improve it, contrary to my wishes, and compel me to pay the cost. The principle is of the very essence of arbitrary power, and if it were extensively carried out in the administration of affairs, I cannot conceive of anything that would be a more fruitful source of indignation and resistance.
    And to render this law more objectionable, the notion that tbe widening of a street necessarily confers a peculiar benefit on those who own lots bounding on the street, is a fallacy. As to this particular case, it may be that some of the property on the street has been benefitted. But as to a large part of it, it certainly has not been. St. Philip’s Church owns some of the lots on the south side of the street, which are rented out from year to year, as well as some which are on long building leases, and the rent has not in any instance been increased one dollar. Again, this part of George street ■is intersected by several cross streets — Coming, Glebe, St. Philip — and the buildings of some of the parties assessed front on the cross streets, and their entrances are on these cross streets. Their lots bound on George street, but do not front on it, and they make no use of George street. The widening of George street is of no manner of consequence to them; ■while, on the other hand, it is decidedly beneficial to the pro- ■ prietors of the house on Coming street, opposite to George street, giving him, as it does, a fine view down this broad street, and also to many persons at a distance, who find George street a convenient thoroughfare. But none of those persons pay any thing for the improvement.
    
    The power to exact these assessments, I have said, cannot be derived from the right of eminent domain. It cannot be maintained unless it can be deduced from the right of taxation. And the argument of the City Attorney seems to make that point (p. 3,) by putting it on the same footing with the power to lay assessments for pavements, and affirming that the latter “is as constitutional as the general power of the Legislature to lay taxes upon the people of the State.” I take issue with him upon that.
    The proposition will not be disputed, that taxation, to be lawful or constitutional, must be equal, and must be for public objects. “ Every person,” says Ch. Kent, “ is entitled to be protected in the enjoyment of his property, not only from invasions of it by individuals, but from all unequal and undue assessments on the part of government.” 2 Com. 331. Equality implies that if one citizen’s property is taxed, similar property of every other citizen in the same- community must bear the same tax. The government must not undertake to decide that certain persons are benefitted by a certain improvement, and raise the amount it cost by taxing their property. The money raised by taxation can only be legitimately laid out on public objects, and public objects must be paid for out of the public treasury.
    I contend then, that upon principle, this tax or assessment is unequal and unconstitutional; that it is exactly that •“ partial legislation” which our Court has said, in Dunn vs. The . Gity Council, Harper’s Eep. 199, is “ contrary to the law of the land,” and unconstitutional! And this position does not conflict with any of our decided cases. Numerous instances of establishing, widening, and extending streets have occurred, and this, I have been informed, is the first case in which the City Council has ever attempted to ’ collect the assessments against the will of the lot owners. The case of Lindsay vs. The Commissioners, 2 Bay, .58, was cited on the 'other side at the last hearing. In that case the plaintiffs were not only owners of the lots assessed, but also of the land over which the new street was to pass. And the only point made was, whether the State could take the citizen’s land for the purpose of making a street, without compensation. The right to assess the adjoining lots was not questioned. It was yielded by the plaintiffs, and, of course, was not considered nor decided by the Court.
    The other cases relied on are, all of them, cases in which the Court sustained assessments made on adjoining lots, for the purpose of defraying -the cost of pavements and drains Now these cases are certainly not so identical with that at present under discussion, nor so exactly analogous to it, as to make the decisions amount to res judicata, and preclude the Court from determining this case differently, without overruling former decisions. Besides that those were cases of building pavements and drains, and this is a case of enlarging a street — very different things — and that the power to assess is' conferred in the two cases by distinct Acts of Assembly, there is also an obvious difference in point of the justness of the power. Pavements and drains are established in all the streets of a city, as the streets are built up and improved. There is, therefore, an equality in taxing the adjoining property to pay for them, because every lot will have its turn in time. But the widening, or even the opening of a street, is a thing of rare occurrence. A view similar to this was entertained by the Court in the case of the Gity Council vs. Pinckney, 8 Brevard, 224. “It has been the, constant and uniform practice of the old Commissioners of the Streets, and of those acting under the City Council,” says Mr. Justice Grrimke, “to assess those persons before whose houses the pavements are made; and a contrary mode of proceeding would tend to make those who have long ago paid for their own pavements, pay a double tax, if they were now to be assessed for the pavements of the city generally; and those who never yet have paid any assessments for pavements, if they were now required to do so, by a tax on the whole city, would be much better off than those who have been compelled to pay heretofore. A tax should operate in a general way, on all the citizens at large, and not partially.” And indeed in the last case on the subject of drains, Yeadon vs. The City Council Eckhard’s Digest, Appendix YL, the Court decided in favor of the power to assess, not on principle, but expressly on the authority of the previous decisions in such' cases; and intimated that if the matter were res integra, their decision would have been different. But the present case is one of widening a street, and the Court will not be embarrassed in deciding it upon principle, by the decisions in the cases of pavements and drains.
    
    The order for the re-hearing directs the attention of counsel to the Act of 1764, (which is to be found in 9 St. 697, as well as in tbe volume referred to by the Court.) That Act empowers certain commissioners to repair tbe bridges and causeways in tbe town; to fill up a certain moat, and all boies in tbe streets; to repair all common drains; to sink and repair wells; and provides'that the expense of doing those things shall be borne, in general, by the inhabitants and others interested in the town. It also empowers the commissioners to sink common drains and wells, to pave and level the principal streets, and erect posts in them; and provides that the expense of these last mentioned things shall be borne (not by the inhabitants at large, but) by the owners of the lands lying on the streets benefitted thereby, rateably and proportionably. And the commisioners are authorized to assess the owners of the lands, and to collect the asssessments by warrant of distress issued (not against the lands, as in this case, but) against the goods and chattels of such persons.
    Three things are worthy of notice in this Act:
    1. It carries out the idea of equality on which I have commented, namely: that while such improvements as are likely to be eventually made in all the streets, such as sinking drains and building pavements, shall be paid for rateably by the owners of the adjoining lands — those which do not occur in all the streets, such as repairing bridges and causeways, shall be paid out of the common treasury.
    2. That when the expense is to be raised by assessing certain individuals, the assessments shall be collected by distress against their goods and chattels, and not by execution against the freehold, as in the present case.
    3. That it does not provide at all for the opening, widening, or extending a street.
    The power, therefore, which the City Council have attempted to exercise in the case before the Court, of assessing the adjoining proprietors to defray the cost of widening a street, is not within the enactments of the Act of 1764, and is also contrary to its spirit.
    Thus far, I have endeavored to show that, conceding to the Legislature full power to lay out and enlarge public roads and streets, and to take the lands of the citizen for the purpose, the expense must be paid out of the common treasury, and cannot, constitutionally, be raised by assessing only the adjoining proprietors.
    But supposing even that may be done without violating the Constitution, still the assessments cannot be enforced by levy and sale of the freehold, without the verdict of a jury.
    Under the right of eminent domain, the Legislature may take the land that is needed for a public object, and may exercise the power through commissioners or agents of their appointment. But here the design is to collect a tax by seizure and sale of land without the intervention of a jury.
    These relators are to be disseised of their freehold by a summary proceeding. But the Constitution of the State (Art. 9, sec. 2) declares that " no freeman shall be disseised of his freehold,” or “ deprived of his property, but by the judgment of his peers, or by the law of the land;” and (sec. 6) that "the trial by jury, as heretofore used in this State, shall be forever inviolably preserved.”
    These persons are to be “disseised of their freehold” and “deprived of their property,” without any “judgment of their peers;” and the question then arises, is it in accordance with the “ law of the land” to do these things, under the circumstances ?
    In Coleman vs. Maxy, 1 McM., 501, these words were said to embrace the common law, as adopted here at the date .of the Constitution, and the statutes of Great Britain and of this State, made of force and in operation at that time. “ A free man is not to be deprived of his property but by the judgment of his peers or the law of the land; that is to say, -by the judgment of some competent judicial tribunal known to the law.” The proceeding in the present case is this: The Commissioners appointed by the city assessed the amounts to ■ be paid by the relators, respectively, and made their report accordingly to the Council, and thereupon the Treasurer issued an execution, directing the Sheriff to levy on the relators’ land to satisfy the amount. Can it be demonstrated that this report of the Commissioners is the judgment of a competent judicial tribunal, Tcnown to the law, at the time of the. establishment of the Constitution? and that it was according to law, at that time, to seize and sell the freehold to satisfy such judgment. The burden of doing so rests on the defendant.
    In While vs. Kendriclc, 1 Brev. 471, it was decided, that an Act extending the jurisdiction of magistrates to thirty dollars was unconstitutional. And in Commissioners of Neio Town Cut vs. SeabrooTc, 2 Strob. 564, the Court in commenting on that decision, says: “It was held that the sections (of the Constitution) under consideration established an epoch from which legislative innovation on the trial by jury should cease; and the Act was decided to be unconstitutional, on the ground that the trial by jury was to be preserved ‘ as heretofore used;’ and in no instance, at the time the Constitution was adopted, had justices of the peace ever exercised jurisdiction as far as thirty dollars.” We ask, whether, at the time the Constitution was adopted, a case had ever been known of the sale of the freehold by the sheriff, except under a judgment and execution founded on the verdict of a jury?
    In the case last cited, the Court held that the fines imposed by these commissioners were lawful, although they exceeded twenty dollars, expressly because the power to impose-and collect such fines, without a jury, belonged to the Commissioners of Cuts at the time of the adoption of the Constitution.
    
    I have considered the analogy contended for between these assessments and assessments for drains. And, in reference to the point now under discussion, I would call attention to the striking difference between the modes provided for their enforcement. The Act of 1764, already referred to, gave the power to make assessments for drains, and provided that they shall be collected' by levy on the goods and chattels of the persons assessed. In Houston vs. Gity Council, 1 McO. 345, it was held that the Act of 1764 was repealed by the Act of 1783, and that the City Ordinance of 1806 is now of force, and that ordinance, Eckhard’s Dig. 59, directs that they shall be Collected as the city taxes are collected; and that is, by a sale of the goods and chattels; and if none can be found, then of a lease of five years of the land of the party. Eckhard’s Dig. 279.
    But, under the Act of 1850, the assessments are to be collected by seizure and sale of the freehold, and it is clearly a “legislative innovation on the trial by jury,” as it existed when the Constitution was established.
    In The State vs. Dawson, 3 Hill, 103, Mr. Justice Evans says: '‘The clause of the Constitution, as well as Magna Oharta, intended to guard the property of the citizen against the exercise of any new or arbitrary power.” And it is unquestionably a new power to seize and sell the freehold, except under a judgment and execution founded on the verdict of a jury.
    I conclude, then, that these relators are entitled to the writ of prohibition asked for, because:
    1. It is unequal, partial, unconstitutional, to make any public improvement, for the general benefit, and compel particular individuals to pay the expense, on„the idea of special benefit to them.
    2. It has not been decided in any of our cases, that it is lawful to raise the cost of improving a street by assessments on the adjoining proprietors.
    3. The cases of drains and pavements are not so analogous to the present as to make the decisions in them amount to res judicata.
    
    4. The mode of collecting the assessments under consideration, viz.: by seizure and sale of the land, without the intervention of a jury, was unheard of at the formation of the Oonstitution, and at that time “ contrary to the law of the land.” And, in fact, all the acts in relation to drains and pavements provide that the assessments shall be collected by levy and sale of the personal estate, not the real.
    
      Spratt, same side. The question is, as to the power of the City Council of Charleston to assess upon the owners of adjacent lots the costs of widening a street. The power, if possessed by the State, has been sufficiently conferred upon the Council, and the only question then remaining is, whether the State itself possesses the power it has undertaken to confer ?
    The several Acts upon this subject prop ose, fir st, to take the land necessary to that purpose, and, second, to exact from the owners of adjacent lands a contribution in proportion to the particular local advantages they may have derived from it, which contribution is to be taken by assessment.
    I will not question now the power to take the land that may be necessary to the object. That has been already taken, and the owners are content. But the Council has proceeded to issue execution for the share of advantage which, in its opinion, has resulted to the several lot owners. Prohibition has been prayed; and the question then is, whether it will be granted. If not, then two propositions must be true : First, the State must have the right to such contribution, and, second, the power to levy that contribution by assessment.
    
    Has it such a right ? 1st. If the State has the right to contributions for the share of advantage which has resulted to the owners of lots from this improvement, so also must it have the right to the share of advantage which shall result to individuals from any other improvement. If the question were, whether the State can exact a specific service of the citizen, that question would be determined by the further question, whether the service was necessary to the existence and well-being of the State; and the State may well require the citizen to do service on highways or in war, for instance, .without the right to service in a theatre : for these classes of service are clearly distinguishable from each other. But if the State have a right to compensation for the advantage that has incidentally resulted from a public work in any one case, so also may it have in every other; for advantage, merely, being the condition of the obligation, the obligation would arise in every other case in which advantage could be charged. If, therefore, the citizen may be charged for the advancement in the value of his property from the widening of a street, so also might he be charged for the construction of a courthouse or a railroad. Again, if there be the right to contribution for the advancement in the value of property from the construction of a public work, so also must there be the obligation to indemnify for any depreciation that results, for such rights and obligations must of necessity be reciprocal. Again, if there be the right in the State to contribution from any such a cause, so also must there be in the citizen; and if there be the right in the citizen to contribution, so also must there be the obligation to indemnify for damage.
    And again, if this State may levy contribution upon the owners of property adjacent to a public work, for the reason only that they receive advantage from it, so also may they levy contribution for the same reasons upon a class of citizens at any distance off, — and so, therefore, upon its discretion, the State may have tbe right to say what class of its people shall bear alone the burthens of the government.
    Such are the consequences which follow as corollaries from the original proposition ; and is, then, the proposition true ? One reason for believing that it is not, is in the fact that it has never been asserted. England, in certain periods of despotic power, has assumed to assess the burthens of the state upon certain classes, but the assumption has ever been rebuked by the spirit of English liberty, and at no time, and in no country, has the state undertaken to' exact of adjacent owners the incidental profits that may have come from the construction of a public work. It seems to have been considered, that between the state and the people there are the equities of a social relation, rather than the rights of a legal contract; and it has ever been regarded as enough to entitle the citizen to all the advantages which incidentally result from the acts of the state, that he shall submit with complacency to the incidental ills and evils that thence may come upon him.
    Another reason for believing that no such principle exists, is in the fact that it would be inconsistent with the well-being, and existence even, of society. If the state could only improve by responding to the claim of damage for injuries resulting; if, at every step to such improvement, the citizen shall be liable to such assessment; if the citizen with every house erect a battery of rights and obligations; and, more especially, if the political parasites that” feed upon the State could force its legislature to exact from sections the sums sufficient to perform its works, and so could acquire spoils without a pressure upon the whole country, — the society itself would become convulsed. Nor is it any answer to this objection, that these rights and obligations would be imperfect without an act of legislation. For in the first place, the principle cannot be .right, if such would be the wrongs that would result upon its operation ; and, in the next place, if the right be admitted, there would be political parasites to urge it into action. It has been conceded that States and towns may build railroads with the public funds, and though the burden falls on all, and the persons, therefore, that feel the pressure have the power to arrest it, yet the town of Charleston has been crushed by such exaction. This being so where those who feel the pressure hold the power, much more must it be so when it shall have been established that the burdens may be laid upon one class of our people, to the benefit of another.
    It may be said that these are reasons why the State should not have the right to such assessment, but that if the right have been given by act of legislation, there is no power to resist it. But I contend, that if there be no right in the State to such contribution, the exaction of it would be a wrong, and that there is no constitutional power in the State to perpetuate a wrong. It may be said, that the State can do anything from which it is not prohibited. But I do not assent to the pro-, position. The State is constituted to an object — the liberty and well-being of the people; and I contend, that it has no single power that is not consistent with that object. It might be difficult to find the clause in the Constitution by which the State is prohibited from promulging tenets of political or historical faith; but if the State were to make it penal to believe that Julius' Csesar lived, or that squatter sovereignty is right or wrong, the Courts would not, could not, enforce the penalty. Or if the State should assess its citizens to establish houses of ill-fame, the Courts would surely grant a prohibition; for of common light, if not by evident intendment of the Constitution, the State is precluded from every act in derogation of individual liberty, not necessary to the objects of its office. (And to this effect is Zylstra vs. The City Council, 1 Bay, 888, and Dunn vs. City Council, Harper, 189.) In the first, the Court of Wardens could not act in derogation of the right of trial by jury, although authorized to do so by an act passed anterior to the Constitution; and in the second, the commissioners for widening the street, though authorized to do so, could not take one foot of land not necessary to that object.
    But if there be the right to contribution in the State, it is necessary to the validity of this proceeding that it shall have power to levy such contribution by assessment.
    It is certain that this money, proposed to be taken from these relators, is as much their property as any other property they may possess, and being such property, we have the warrant of the Constitution for it, that it can only be taken by 
      the judgment of their peers or the law of the land. There is here no judgment of their peers, and is it then taken by the law of the land ? The law of the land admits of summary process from certain Courts and from the State, in the exercise of certain powers. Such Courts as are competent to issue summary process must have existed at the time the Constitution was adopted. (Commissioners of Newtown Cut vs. Seabrooh,$ Strob., 888.) This commission, if it be a court, did not so exist, and this process, if it be warranted by the law of the land, must find its authority in the sovereign inherent powers of the State.
    There are two classes of rights in the State that differ in their nature and the means to their enforcement. The one I will call political and the other legal. The first class, such as the right to taxes; to service in war, — upon juries; upon highways, — in the removal of nuisances, and the like, are necessary to the State. They were inherent in the society of which the State was formed. They cannot be alienated or constrained in consistence with the obligation of the State to preserve and perpetuate its own existence. For reason of their necessity they can be controlled by no other than the /discretion of the State, and the State, therefore, without a jury and by the law of the land, may proceed to enforce them by summary process whenever the occasion for enforcement may occur.
    The second, such as to debts on bonds, and other legal obligations, and the right to penalties for violations of the law, are not so necessary to the State. The State may exist without the debt or penalty, and it is not even of interest to the State that these rights shall be enforced save only when it shall be determined that the facts have occurred upon which the right arises. The question, therefore, whether the State shall have summary process, is dependent upon the question, whether the right to be enforced is, of the one class, or the other, and then only, when it is determined that it is of that class which is inherent in the State, and with respect to which the State from its obligation to exist can admit of no discretion but its own, does the power of summary process arise.
    Is, then, this right to contribution from lot owners, admitting it to exist, of that class? I have shown that it is doubtful whether the State have any right to contribution at all ? and if the right of the State be doubtful, the enforcement of it at all events cannot be necessary to the State. The State, in such a case, can have just that right to such a contribution which it has to the money due on a bond, and may have process for its enforcement, only when the facts shall have been determined. The question is not whether the State can widen streets. That, for the sake of argument has been admitted — admitted that it can take the land, — admitted, even, that it may require service to that object, as it may make the neighbors work on roads; but it is, whether under its admitted right to widen streets it may assess upon whomsoever it pleases whatever of advantage they derive from it, and whether, therefore, under color of a legal power it may do what it could not do without. We contend it maj not, and • to this point are (The State vs. Allen, 2 McCord, 55; Dunn vs. Oity Council, Harper, 189; Birnie vs. Tax Collector, 2 Bailey, 654; L. C. & C. B. B. vs. Chappel, Rice, 383 ; Berger ads. The State, 1 McMullan, 410.)
    It may be said that the Act of 1850 provides for an appeal from the assessment of Commissioners. But in the first place that appeal is only as to the amount of the assessment. In the second place it is only to the discretion of the Circuit Judge whether he'will grant any. But, at best, the right of appeal is not the right of trial by jury. The question is not now whether some process may not issue at the suit of the State to collect contribution from these relators; but it is, whether this process shall be prohibited, and if to its validity there be any necessity for the verdict of a jury it is enough to show that in this case no such verdict has been rendered. {Zylstra vs. City Council, 1 Bay' 395.)
    
      It is said, however, that this process upon assessment is by the law of the land, for that before the Constitution it was in use, and the Act of 1764 is referred to as an exhibition of the power. But first, the powers exercised under that Act are not precedents for the powers proposed by these. That Act proposed to promote the health and convenience of this city, these propose no such object, and the State may well require service of men to the health and convenience of the public, which it could not require without such objects. That Act opened hiyhways and removed nuisances, these do neither, and the State may well require service to such objects without the power to require it in cases in which no object has. been indicated. That Act imposed the assessment upon adjacent lands and houses rateably and in proportion to their value. These exact a contribution for the local and particular advantage. That Act, therefore, is in the assertion of the power of the State to advance its own well being, and to assess the burdens rateably and proportionately upon those properly chargeable with them; these propose a speculation by the State at the expense of a particular section, and the one, therefore, is not a precedent to lead the other.
    But if so — if the Act of 1764 were as much in derogation of common right, as are the Acts in question now, it is not binding. There is, in time, no bar to- liberty. Our right to liberty is as perfect now as it was in 1764, the acts of legislation, and the edict of power afford presumption of the law, but they are not the law. That is in the consent not the subjection of a people, and every contest of liberty against power— Magna Charta — 'the bill of rights — the revolution in England —in America, — attest that whatever have been the encroachments of power, it is the right of liberty to vindicate itself* whenever it shall have the power to do so. We came by inheritance in this country to at least the liberties of the English subject — this Act of 1764, if it had the force and effect attributed to it now, was in derogation of such liberty. If in derogation then, it is in derogation now, and so in derogation it is within the power — it is the office of this Court to declare that it is not the law of the land. Elsewhere it has been necessary to roll aggression back by the strong arm of physical power, here it may be rolled back by the no less potent arm of the judiciary. That tribunal is instituted to the object of superseding the arbitrament of physical power, and when the occasion comes, it may'not, if it would, forego the functions of. its high office.
    Porter, City Attorney, Memminger, contra.
    
      Me Grady in reply.
    The City Council claim the right, under executions issued by themselves, to sell the relator’s lots in George and Anson streets, to satisfy the respective sums assessed upon these lots by certain Commissioners appointed under the Act of 1850, by the Council itself, to ascertain and assess the expense of certain local improvements in those streets. The relators claim the protection of the ninth Article of the Constitution, sections 2 and 6.
    The counsel for the city njake two points:
    1st. That the Act of 1850, does not deprive the relators of the judgment of their peers, secured by the Constitution.
    2d. That the lex terras authorized this mode of proceeding without a jury, in such eases.
    If anything can be considered settled by repeated decisions, it is now settled by the cases of Kenrick vs. White, 1 Brev,469 ; Collier vs. Rogers, 2 Brev. 41; and The Commissioners of New Town Cut vs. Seabrook, 2 Strob. 560, that the right of trial by jury, secured by the Constitution, is that right which existed at the time of its adoption, to be enjoyed as it was then, because the Constitution declares it shall be forever inviolably preserved “as heretofore used in this State.” In the language of Frost, J., 2 Strob. 564, the Constitution " established an epoch from which legislative innovation upon the trial by jury should cease.” This is the foundation of our argument.
    As to the first point. The Act of 1850, does provide for a jury, it is true — but how ? Only by allowing the relators, if dissatisfied with the assessment made upon them, with the permission of a Judge, to “appeal” to a jury to rectify the assessment as to its amount. Now the right of jury trial before the Constitution, was a right to have the case submitted to them as res integra, in the first instance, as to an original tribunal, to hear and determine upon evidence. Every departure from the mode of its use is “ innovation,” as much so as departure from the mode of its organization. The case of the King vs. Gommirs of Sewers, &c., 7 East, 71, may serve to show the care with which the Judges of England watch and prevent any change in the organization of juries, even where long usuage and convenience alike seemed to warrant it.
    By this Act of 1850, the Relators can only have the trial by jury as an appeal — the Act so calls it. Now an appeal implies a previous decision by some tribunal authorized to take original cognizance. It is that tribunal which should have a jury. A jury was wholly unknown as an appellate tribunal at the adoption of the Constitution. But still more grave is the objection, that the Act gives to the relators no jury to try the right in question, but only the amount. It is nothing more than a jury upon a writ of enquiry, when they claim the right to a jury, upon an issue.
    Then as to the second point, the lex terree. The cases in which juries may be dispensed with by “ the law of the land,” may, with propriety for all the purposes of the argument in this case at least, be arranged under two classes or divisions.
    First. Where the procedure is in virtue of what is called the right or power of eminent domain.
    
      Second. Where a Court has been established before the Constitution by the course and practice of which juries are not needed or employed.
    The first of these classes is not easily specified and determined. The right or power of eminent domain is itself very vague, and perhaps will not, at present, admit of strict definition; yet it certainly cannot be unlimited, for if both undefined and unlimited, our government would be absolute and not constitutional. Some limitation to this power therefore there must be, according to the essential idea of our ' political organization ; and if this cannot otherwise be determined, we must look to common sense and common right, to circumscribe it, if not at first with accurate lines, yet within impassable boundaries.
    In time of war we recognize the right of the State, to send her citizens to distant lands to fight her battles and lay down their lives in foreign fields, or to deliver them up to captivity as prisoners or hostages. But can the Legislature in time of peace, condemn the citizen to death, or bánish him, or shut him up in prison for the good of the State by Act of Assembly ? Would not habeas corpus deliver him in such cases from death or prison ? So again, in time of war, the citizen may be forced from his hearth, his dwelling torn down and his children left houseless, when defence requires it. But can the Legislature, in time of peace tear down houses, level villages, and turn the inhabitants into the open fields, as ancient English kings did, to make forests for their game ? Although in time of peace, it seems now settled in this State, that under this power, private property may be taken without compensation for the purpose of. making roads, which in England would be considered against common right, -yet could the Legislature, therefore, authorize the seizure and conversion of any private property to any public use ? If so, what else could this be but the right of confiscation, and that without any offence charged or committed ? Suppose the Legislative had determined to take a certain improved square or squares in this city (Columbia) as the site of the capitol, and directed the land to be seized,’ the peaceful inhabitants driven out and their dwellings demolished, and that without any compensation offered or intended. Could your Honors have pronounced that lawful and constitutional ? The true light in which this right of eminent domain as applicable to the taking of private property for public use should be re-. garded, is, as a present or long adfnitted governmental or political necessity, to be allowed only in cases of emergency, or where immemorial usage has made it law, ever to be watched with jealousy and restrained within the necessity or' the usage, strictly and sternly.
    But it is said, this is an assessment, and assessments have been imposed and collected by execution summarily since the first planting of the colony. All taxes were formerly called assessments in our proprietary and early provincial Acts of Assembly, and all the early assessments cited, were general, and therefore nothing else than general taxes. The right to require contribution from all property in the State for the support of government in all its departments, and to coerce the immediate payment without the intervention of Courts or juries, that is, the power of taxation, is an obvious political necessity, and may perhaps be appropriately classed under the right of eminent domain. But a local improvement, by an assessment to be levied arbitrarily upon a few, cannot be such a necessity, and cannot, with any propriety, be classified under the head of taxation. It is in fact, nothing more than , partial legislation or partial taxation if you choose, which is nothing more than extortion. If it be in the power of the Legislature as a part of the taxing power, to assess the lots fronting a particular portion of a street where improvements are made, as this power is of necessity.uncontrolable, why should they not as well assess the inhabitants of a neighbouring Street, or a few individuals to be designated by name in the Act ? There is no more unity or community between the inhabitants of a street than between other individuals. The law knows districts, parishes and beats, and sub-divisions under Commissioners of Roads, as subordinate territories or communities for certain purposes, but has never recognized streets or parts of streets "as in any manner or sense, forming communities. It can only be said of any such taxation, (if you call it by that name,) that it is partial. It is this kind of taxation which feudal Kings and Lords claimed of their subjects and vassals, as arbitrary aids, reliefs, talliages, &c. Against these, barons and burgers contended for hundreds of years, and finally succeeded in abolishing the tenures to which they were incident, about the period when this colony was first planted, and our forefathers were allowed to take and to hold their lands, by the best of all tenures known to the common law, free and common soecage, the special and peculiar value of which was exemption from all arbitrary, unequal or partial exactions, under the name of taxation or under any other name. Such partial legislation or taxation, is therefore against the nature of our tenure and the vital principle of the law of the land.
    If this legislation of 1850, cannot be justified by the right of eminent domain, including in it the taxing power, can it be sustained as a proceeding by a Court known and existing at or anterior to the adoption of our Constitution ? There is but one body now in existence, which can pretend to anything like it, and that is the City Council of Charleston, to which was transferred the powers given to the Commissioners of the streets by the Act of 1764. We admit, that they may claim to be a Court of special jurisdiction over the subjects to which their jurisdiction extended at the adoption of our Constitution, like the Commissioners of sewers in England. Rut beyond that, they cannot go, and as (has already been shown by the council who have preceded me in behalf of the appeal) their power and jurisdiction did not extendió openings widening or extending streets, nor did they have power to issue executions against real estate. Our adversaries then, must intend by their review of the legislation of the State prior to the Constitution, to show that our Legislature did exercise the power of appointing Commissions from time to time to extend or widen streets, and to assess the expense without jury, and thence to infer, that our Legislature may at this day do the same.
    Admitting the power of the Provincial Assembly and of the Legislature of the State, prior to the adoption of the Constitution, to have been as unlimited as the power of the Parliament of Great Britain, and of course, admitting their power to create Courts, general or special, or Commissions to assess and levy without juries, what was this power but a power of legislation ? Now it is this power of legislation which we insist has been taken away by the Constitution, and it has been repeatedly so decided, (as has been shown) as to Courts of general jurisdiction ; and how can it be now claimed for the creation of Courts of special jurisdiction -or for Commissions, temporarily or occasionally appointed, to give judgment and execution upon the rights and property of the citizen, the most terrific of all engines, in all ages, for prostrating liberty and upholding tyranny ?
    But the history of our legislation prior to the Constitution, goes no further than to show that our Legislature asserted the right to exercise the power themselves, according to their own judgment and discretion, through agents specially selected by themselves. But the Act of 1850, goes far beyond this, and delegates to a corporation these rights of eminent domain (or what else you please to call them) but in the highest and strictest sense, sovereign rights and powers, to be exercised at their discretion. What authority can be pretended for this attempt to delegate these sovereign powers, or to substitute a City Council for a General Assembly ?
    It seems to have been suggested, although not actually affirmed, that the City Council may have this power under their Charter generally, without the aid of the Act of 1850, because the powers therein granted to them were so granted before the Constitution was adopted. The answer is first, That then the action' of the City Council should have been by a By-Law or Ordinance. Corporation of Columbia vs. Hunt & Kinsler, 5 Eich. 550. And next, That this was Legislative power, and it is this power which is controlled by the Constitution. Is the City Charter above the Constitution because it was before it ?
   The opinion of the Court was delivered by

Dtjnkin, Ch.

George street has been, for much more than a century, a public thoroughfare in the City of Charleston. It was originally a part of Ansonborough, and extended from Anson street on the east to Coming street on the west, being of the ’average width of about thirty feet. Some short time anterior to the institution of these proceedings in 1855, it was deemed expedient by the respondents, (The City Council of Charleston,) to widen so much of George street as lies between King and Coming streets, by adding some fifteen feet in width on the north side of George street throughout the above extent. This was accomplished at an expense of twenty-six thousand nine hundred and sixty-three dollars, made up almost exclusively of compensation to the landed proprietors on the north side of the street, whose lands were taken in making the improvement. In May, 1855, the Mayor of the city published a notice to the lot-holders in George street,” to attend - a meeting to be held in the City Hall, on 22d May, in order to appoint Commissioners to meet other Commissioners to be appointed by the City Council, “ for the purpose of ascertaining the cost and “ expense of widening said street," and assessing the same “upon the proprietors of lots and houses on both sides of “ said street.” The relators are proprietors or lessees of houses or lots on the south side of George street, between King and Coming streets. Some of these proprietors did not attend the meeting; “ and those who did attend, being ad- “ vised that the City Council had no power or authority to “ levy and collect any assessments upon them for the widen- “ ing of George street, declined to appoint any Commissioners “on their behalf.” On 20th June, 1855, a majority of the Commissioners appointed by the City Council met, and, after ascertaining the whole cost and expense of said improvement, “ assessed the same upon the proprietors of lots and houses upon both sides of the said street.” On 7th July, 1855, the relators were notified by the city treasurer, to pay their respective assessments on or before the 20th day of the same onth : and, in default thereof, executions were lodged with the city sheriff to be levied upon the houses and lots aforesaid, as by law provided. • On 2d November, 1855, this suggestion was filed, and a rule granted to show cause why a writ of prohibition should not issue.

The only question, which it is proposed to consider, is involved in the eighth ground of appeal, to wit: “ Because the “ Act of 1850, and every other Act of the General Assem- “ bly, authorizing the City Council to improve a street, and “assess the expense, or any specific part of the expense thereof, on any citizen, or on his land, not required or used “ for such improvement, by Commissioners appointed by “ the said City Council, without his agreement, and to seize. “ and sell his land in default of payment of such assessment'; “is against the law of the land, in derogation of the right'of “trialby jury, and is unconstitutional and void.”

The provisions of the Constitution, on which the reiktors'v rely for protection, are contained in the ninth article. ^By the second section of that article it is declared that “no free-'- “ man of this State shall be taken, or imprisoned, or disseised “ of his freehold, liberties or privileges, or outlawed, or “ exiled, or in any manner destroyed, or deprived of his life, “liberty or property, but by the judgment of his peers, or “ by the law of the land.” The sixth section of the same article provides that “ the trial by jury, as heretofore used in “ this State, shall be forever inviolably preserved.”

It is conceded on both sides that, the assessments were made in the manner, and according to the principles, prescribed by the Act of 1850. It is thereby declared that whenever any street, lane, alley or court, in the City of Charleston, shall have been opened, laid out, extended or established according to the Acts of the General Assembly, &c., the City Council were authorized to appoint six Commissioners to meet an equal number to be appointed by the proprietors of lots fronting on such street, lane, alley or court, and the Commissioners, or a majority of them, after taking an oath, &c., “ shall proceed to ascertain the whole “ cost and expense of said improvement, and to assess the “same upon the proprietors of lots and houses upon both “ sides of such street, lane, court or alley, in due ratio, taking into consideration the damages which may be sustained and “ the advantages to be derived therefrom by the said proprie- “ tors respectively.” If the proprietors of lots neglect or refuse to appoint Commissioners, those appointed by the City Council; or a majority of them, are authorized to proceed without them, “ and their judgment in the matter sh^ll be final and conclusive,” except in the case of appeal as provided by said Act.

If any proprietor shall be dissatisfied with the share or proportion assessed upon him, he may appeal to the Court of Common Pleas and General Sessions; and the Court upon satisfactory proof that the appellant has been injured by such assessment, shall order a new assessment, in such particular case, to be made by a jury, who shall be charged therewith, &c. It is further provided that, upon the refusal or neglect to pay such assessments, after ten days notice, the City Council shall be authorized Cl to advertize and sell, according to the laws regulating sheriff’s sales, all and every such house “ and houses, lot and lots, on account of which any propor- “ tion of the said assessment may be due.”

Before proceeding to the principal inquiry, it may be proper to notice the provision of this Act giving an appeal to a jury. There are cases in which an individual may be rightfully deprived of his property, or of his liberty, without the intervention of a jury. The Constitution declares that the trial by jury, as heretofore used in this State, •shall be preserved. Rrom time immemorial cases existed in which the liberty of the citizen might be infringed, or his property taken, by a more summary proceeding, or in a forum of which a jury constituted no part. Nor, on the other hand, is an Act of the Assembly, depriving the citizen, of life, liberty, or property, necessarily within the pale of the Constitution, because the party is thereby allowed any qualified or restricted appeal to a jury. The right must be exercised as heretofore used,” or the provision is worthless. By the terms of this Act, a party, dissatisfied with the share or proportion assessed upon him, may appeal to the Court, which, if satisfied in the premises, shall order a new assessment to be made by a jury, charged therewith, &c. The right to assess is never submitted to the jury, and forms no part of the matter with which they are to be charged. As well might the jury, in an action of trespass to try title, be instructed that the only inquiry for them was as to the rents and profits, but that the right to the freehold had been determined by an Act of the Legislature, and was not open for their consideration.

To vindicate the Act of 1850, the respondents rely upon •the principle of “ eminent domain.” And it is not now to be questioned in this State, since the case of Manigault vs. Commissioners of Roads, 4 McCord’s R. 541, that the Legislature may order a street to be opened over the lands of an individual, and without making It is a and arbitrary power. “Had this question never been made “ before (said tbe eminent magistrate, who announced tbe “judgment of the Court) I should feel much difficulty in “ forming, and should hesitate long before I expressed, any “ opinion on the subject. The power of taking private pro- “ perty for public uses, without making compensation, is so “much at variance with the established principles of this “ Court, that nothing but the most urgent necessity, or uni- “ versal acquiescence, could have reconciled me to its existence.”, But from the necessity of such power in the-Legislature, from the continued use of it in the passage of such laws prior to the adoption of the Constitution, the Act was held to be no violation of the Constitution. The right ■of the sovereign to appropriate the land of an individual to the purpose of constructing a highway over it without his consent, is referred by civilians to an implied consent of the members, who form a society, to yield up to the sovereign power a portion of their landed property for these great, public conveniences, as a means by which they are connected together from remote and different portions of the same community. In this State this high prerogative of “ eminent domain” has generally been invoked to justify encroachment on the soil of an individual for the purpose of roads either from absolute necessity, or great public convenience.

Although sanctioned by immemorial usage, the exercise of it has always been regarded with jealousy, has been tolerated reluctantly, and should be cautiously restricted within the limits heretofore recognised. The Legislature may authorize a new road to be laid out over the land of A. without his consent, because it is of necessity-a great public accommodation that a thoroughfare should take this direction. They may, too, by the same Act, while taking his freehold against his will, provide for his compensation, as has been done in many instances, and which Chancellor Kent regards as.a necessary attendant upon the just exercise of the power, as well upon principles of “natural equity and as laid down by jurists as an acknowledged principle of universal law.” But it has never yet been maintained that, in order to refund the compensation made By the State to A. for the land thus taken for public use, the Legislature, by virtue of its right of “eminent domain,” could seize and confiscate the lands of B. for the purpose of reimbursing the public treasury the amount paid to A. The prerogative of eminent domain” thus exercised finds no precedent in the statute book, and is without sanction from judicial decisions. The Legislature, in the proper exercise of this power, may well have authorized the City Council to encroach on so much of the freehold of the land-owners on the north side of George street as was necessary for the contemplated improvement, but the right of “ eminent domain” gave them no more authority to assess the expense of the improvement upon the land-holders on the south side of George street, than upon the land-holders of Wentworth street, or of East Bay.

Then it is said that the right to levy this assessment upon the relators may be referred to the general power of taxation inherent in every government. No power is more necessary, none more universally recognized, and, it may be added, none the unjust exercise of which has been, in all countries and in all ages, a more fruitful source of complaint and dissatisfaction.

Taxes are collected in a summary manner, and without' an opportunity to the party of being heard. This legal process,,(says Judge Nott, in the State vs. Allen, 2 McC. R. 55,) which was originally founded in necessity, has been consecrated by time, &c., must be an exception to the trial by jury and is embraced in the alternative, the law of the land,” as therein defined by him. But in the same case, it was held by the Court that an imposition by the Legislature, by the name of a tax yet wanting its qualities, could not be levied and collected as such without a violation of the constitutional rights of the citizen, and that the Act was null and void. Essential characteristics of any system of taxation (properly so called) are certainty, equality, universality. All the persons or property within a State, district, city, or other fraction of territory having a local sovereignty for the purpose of taxation, should, ás a general rule, constitute the basis for taxation. If the tax be upon real estate, the value of the real estate should be the measure of taxation. As has been elsewhere said, the general rule knows nothing about partial assessment, for benefits, or the selection of a portion of a class. Existence of persons, or the possession of property, and not the supposed 'benefit, are the guide. When each is taxed according to the value of his property, both equality and certainty may be attained to a reasonable extent, but what may be beneficial or otherwise is a matter of opinion, or fancy, or vague conjecture. Thus, for the construction of a bridge, all the tax-payers of the district, may be assessed by the Commissioners, but they have no right to assess the man at the foot of the bridge on one side, whose plantation is on the other side, at any • greater sum than his neighbor who owns a plantation of equal value on the same side of the river with his residence. Such proceeding is at variance with the general principles of taxation, and has no sanction in the usage of the country. Nor will issolated instances of partial or local legislation alter the principle. They may have been passed on the application of the parties themselves, or have been acquiesced in from other causes. An eminent judge says: “ Primá “facie, and upon the face of the Act itself, nothing will generally appear to show that the Act is not valid : and it is only when some person attempts to resist its operation, and calls in the aid of the judicial powers to pronounce it void, as to him, his property, or his rights, that the objec- tion of constitutionality can be presented and sustained. ” 16 Pick. 87.

But it is said that, whatever may be the general principle in reference to taxation, the Act of 1850 may be sustained from analogy to the Act of 1764, the provisions of which were substantially incorporated in the City Charter of 1783. These legislative enactments were anterior to the adoption of the Constitution. The decisions in Cruikshanks vs. The City Council, in 1821, and in Yeadon vs. The City Council, in 1828, manifest, at once, the dissatisfaction which has always prevailed in regard to these exceptional proceedings, and the reluctance with which the Court felt bound to sustain them. Whatever might have been our opinion” say the Court in the latter case, if it were now a new question, we do not feel authorized, after the solemn decisions which “have taken place, to interfere further with the subject.”

But the Act of 1764, relates to sewers or drains and sidewallcs, and in both the cases cited, the object was to restrain the City Council, from levying assessments on the relators for drains and foot-pavements. From a very early period sewers and pavements have constituted exceptional subjects in reference to assessments. Statutes of Drains and Sewers were known before the time of Henry YIII. when the general statutes upon she subject were enacted, and the mode of assessment prescribed. In like manner the Act of 1764 provided for assessments for drains or sewers and side walks. Yarious reasons have been assigned for these exceptions. Among others it has been plausibly urged that, as a sanitary regulation, and under the power to abate nuisances, the Corporation might require every citizen to drain his own lot, or in case of neglect, exact a penalty, and so, by the old Act of 1698, (7 Stat. 12,) every inhabitant of Charlestown was required to mend and raise the sidewalk in front of his house in the manner, and to the dimensions therein prescribed, on penalty of forfeiting for each house, a penalty to be collected under the warrant of a justice of the peace. In order the better to carry into effect these objects, and to do what each individual might be required to do for himself, the Act of 1764, authorized the Commissioners of Streets to construct drains and level and pave the footways, &c., and to assess the proprietors of lands and houses fronting on the street, &c. It might be said that this was in ease of the burden theretofore imposed upon each land-holder thus situated. Other, and perhaps better reasons might be assigned for this exceptional legislation. It seems enough to say that the assessments imposed on these relators by the Act of 1850, fall neither within the letter nor the reasons of the Act of 1764. The assessment is neither for drains nor sidewalks. The improvement (so called) is no more beneficial, locally, to the estate of Henry on the south side of George street, which is assessed in the sum of five thousand one hundred and eighty-eight dollars, (nearly one-fifth of the whole cost) than to a land-holder in Coming street, at the head of George street, whose property is not assessed at all. The Act of 1764 carefully preserved the cardinal principle of assessing “rateablyand proportionably to the value of the lands and houses.” The Act of 1850, introduces a new element, and directs the Commissioners, in making the assessment, to take into consideration the advantages to be derived from the improvement by the proprietors respectively.”'

According to this, the proprietor of - a humble dwelling on a large lot may be literally improved out of Ms homestead, in consequence of the conjectural advantages derived to his property by the alterations made on Ms opposite neighbor’s freehold under the auspices of the City Council. This Court is of opinion that the proceedings of the respondents derive no authority from any law or usage existing at the adoption of the Constitution, and that the Act of 1850 is in derogation of the rights of the citizen as secured by that instrument.

This opinion cannot be better concluded than in the language of Judge Waties, used more than half a century ago in the case of Lindsay vs. Commissioners, 2 Bay, 61. “ It is “ painful” said he, “ to be obliged to question the exercise “ of any legislative power, but I am sworn to support the Constitution, and that is the most important of all the duties which are incumbent on the judges. On the faith- “ ful performance of this high duty depends the integrity and “ duration of our government. If the Legislature be per- “ mitted to exercise other rules than those ordained by the Constitution, and if innovations are suffered to acquire the sanction of time and practice, the rights of the people will “ soon become dependant upon legislative will, and the Constitution have no more obligation than an obsolete “law. But if this Court does its duty, in giving to the Constitution an overruling operation upon every Act of “the Legislature which is inconsistent with it, the people will then have an independent security for their rights, “ which may render them perpetual. In exercising this high authority, the judges claim no judicial supremacy: “ they are only the administrators of the public will. If an “ Act of the Legislature is held void, it is not because the “judges have any control over the legislative power, but “because the Act is forbidden by the Constitution, and “ because the will of the people, which is therein declared, “ is paramount to that of their representatives expressed in any law.”

The judgment of this Court is that the motion of the relators, in each of the cases, should be granted; that the rule for a prohibition should have been made absolute, and it is now so ordered and adjudged.

Johnstone, Wardlaw and Wardlaw, JJ., and Carroll, Ch., concurred.

Motion granted.  