
    STATE v. TUCKER.
    1. Constitution — Taxing Power. — Secs. 1273 and 1274 or Rev. Stat. cannot be supported as a legitimate exercise of the taxing po*wer, because they do not purport to b-e such, and as such -they would be repugnant to art. IX., sec. 1; art. I., sec. 36; art. III., sec. 33, of the Con. of 1868, -and to art. X., secs. 1, 13; art. I., sec. 6; ait. III., sec. 29, of Con. 1895.
    
      2. Ibid. — Res Judicata. — An adjudication in one appeal of one constitutional objection to a statute does not preclude .the same party from making another constitutional abjection to the same statute on a subsequent appeal.
    Before Gage, J., Anderson, August, 1899.
    Reversed.
    ■ Indictment against W. H. Tucker and J. B. Tucker for failing to' remove trash, &c., from running streams. The order on 'Circuit dismissing the appeal from magistrate court and overruling constitutional objections, is as follows :■
    This is an appeal from the judgment of a magistrate. The prosecution is under section 1273 of the Revised Statutes of 1893. The cause has 'been carried to the Supreme Court upon a constitutional question: 54 S. C., 25T. 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:
    1868 — Art IN., sec. 1. Taxation shall be uniforttn and equal. 1895 — Art. X., sec. x. Taxation shall be uniform and equal. Art. I., sec. 6. Property shall be taxed in proportion to value. Art. X., sec. 5. Certain corporate authorities are vested with power to tax, etc. Art. I., sec. 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. Art. XVII., sec. 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 -1» the organic law of i868, and if consistent with the organic law of 1895 — then it is yet -of force. The o-'dy inquiry, therefore, is: Does t'he 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 14th Amendment to' the ’Constitution of the United 'States. It has three clauses, to> wit: 1st. The privileges and immunities of citizens of this State and of the United States under this Constitution shall not be abridged. 2d. Nor shall any person be deprived of life, liberty or property without due process of law. 3d. 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 guarantees, 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.” — -(Coo-ley Const. Lim., pages 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 land-owners. An amendment changed the time o'f service t0‘ 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 damag'e 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., page 741, et seq.; star pages 594-595. To secure the end in view, I think the General Assembly might levy a money tax on land-owners 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.
    From this order defendants appeal.
    
      •Messrs. Bonham & Watkins, for appellants,
    cite: Rev. Stat., 1273, 1274; Con. 1868, sec. 1, art. IX.; Con. 1895, secs. 1 and 5, art X., sec. 6, art. 1, sec. 1, art. V., sec. 11, art. XVII.; 53 S. C., 283, 292.
    
      Messrs. Solicitor Ansel, Tribble & Prince, and I. E. Brease ale, contra (oral arguments).
    March 7, 1900.
   The opinion of the Court was delivered by

Mr. Chief Justice McIver.

This is the second appeal in this case, the first being reported in 54 S. C., 251. Under that appeal it was adjudged that sections 1273 and 1274 of the Revised Statutes of 1893, are not in conflict with subdiv. 11 of sec. 34, art. III., of 'the present Constitution, nor are they repealed by subdiv. 3 of sec. 11, of art. XVII., 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, are not affected by the provisions of the present Constitution forbidding- local or special legislation, and that the provisions in sec. ri, art. XVII., only repeals the provisions of law inconsistent 'with the self-executing- provisions of the Constitution. The case was, therefore, remanded to the magistrate for trial. At such trial the defendants moved to dismiss the case upon the ground that sections 1273 and 1274 of the Rev. Stat. of 1893 were in conflict with certain other provisions of the 'Constitutions of 1868 and 1895, not before passed upon. The motion was refused, and thereupon defendants appealed to1 the Circuit Court, where it was heard !by his Honor, Judge Gage, who rendered a decree (which should 'be incorporated in the report of this case) dismissing the appeal and remanding the case'to the magistrate for trial. 'From this decree the defendants have appealed to this Court upon the several grounds set out in the record, which need not be reproduced here, as they all raise the question of the constitutionality of the section (1273 of Rev. Stat.) upon which the prosecution is based.

The Circuit Judge 'holds that the legislation in question cannot be supported as a legitimate exercise of the police power, and there being no> exception to such 'holding, and no notice, as required by the rule, that respondent will ask this 'Court 'to sustain the decree upon the ground that the legislation in question is a legitimate exercise of the police power, that question is not before us and cannot, therefore, be considered. The only ground upon which the 'Circuit Judge rests'his conclusion that the legislation assailéd can be sustained, is that it may be regarded as a legitimate exercise of the power of taxation; and to that question we will confine our attention. We do> not see how it is possible to- regard the legislation contained in sections 1273 and 1274 as an exercise of the power of taxation. Those sections do not purport to' impose any tax upon either persons or property. Their language is as follows : “Section 1273. All land-owners of the 'Counties, of Anderson, Beaufort, 'Chester, Greenville, Oconee, Union, Fairfield, Laurens, 'Newberry and Abbeville, shall remove from the running streams of water upon their lands all trash, trees, rafts and timber during the months of May and August in each year, and in the Counties of Pickens, Spar-tanburg and York, in the month of August of each year. 'Section 1274. Any person convicted of violating the foregoing section shall be deemed guilty of a misdemeanor, and shall be punished by a fine of not less than five nor more than fifty dollars, or be imprisoned not less than ten nor more than thirty days, in the discretion of the Court before which the case may be tried.” This language plainly imports nothing more than an intention to* impose upon certain land-owners in the State the duty of performing a certain act, and to make a failure to* perform such act a misdemeanor, punishable by fine or imprisonment. It has none of the features of a tax act. But even if these sections could be regarded as an attempt to exercise the power of taxation, then they conflict with that portion of .section i, of art. IX., of the Constitution of 1868, which was of force at the time these sections' were adopted, by which the requirement is that “the General Assembly shall provide by law for a uniform and equal rate of assessment and taxation,” &c., as well as with that portion of section 10, of art. X., of the present Constitution, which contains a similar requirement; for the tax (if it be a tax) is not uniform and equal, 'but applies only to certain land-owners in certain specified counties of the State. Besides, if the burden imposed upon the land-owners in the counties specified in the act could be regarded as a tax, then such tax would not be “equal” even among such land-owners; for it would be hardly probable — indeed, scarcely possible — that the same amount of time and labor would be required to remove from one running stream “all trash, rafts and timber” as would be required to clear out another running stream, even in the same county. Again, if the so-called tax is to be regarded as a tax on property, then the legislation in question is in conflict with sections 36, of art. L, sec. 33, of art. II., sec. 1, of art. IX., of the Constitution of 1868; as well as with sec. 6, of art. I., sec. 29, of art. III., and sec. 13, of art. X., of 'the Constitution óf 1895, which provided that all property subject to taxation shall be taxed according- to its actual value, as ascertained by an assessment made for the purpose; and no provision has been made for such assessment. But if it should be regarded as a tax upon persons, then, as we have seen, it is likewise unconstitutional, because not uniform and equal. If it should be said that this Court has already, under the former appeal, decided that sections 1273 and 1274 are not in conflict with the Constitution, the answer is that this is a mistaken view of the former decision — State v. Tucker, 54 S. C., 251. Under that appeal, the only question of constitutionality which was presented' to or considered by the Court was whether the legislation here in question was in conflict with sec. 34, of art. III., of the present Constitution, forbidding the enactment of local or special laws in certain cases, and the Court there held that the provisions of the present Constitution were not retroactive; and as the statutory provisions then in question had been enacted long before the adoption of the present Constitution, they could not be regarded as in conflict with sec. 34, o'f art. III., of the present Constitution; and that the provisions of subdiv. 3 of sec. 11, of art. XVII., of the present Constitution, could not be regarded as a repeal of secs. 1273 and 1274 of the Rev. S'tat. of 1893, as that subdivision only repeals all laws inconsistent with the self-executing provisions of the Constitution of 1895. It is obvious, therefore, that the constitutional objections 'to the legislation in question which are now presented, were not presented to nor considered by this Court under the former appeal, and hence these questions are not concluded by the former decision. To show this, it is only necessary to¡ refer to the case of Whaley v. Gilliard, 21 S. C., at pp. 573-577, and the authorities there cited.

We are, therefore, of opinion that the Circuit Judge erred in holding that the legislation in question could be supported as a legitimate exercise of the taxing power, for two reasons: 1st. Because such legislation does not purport to be, and cannot be regarded as, an exercise of the taxing power. 2d. Because if it could be so regarded, it is in conflict with the Constitution of 1868 as well as 1895.

The judgment of this Court is, that the judgment of the Circuit Court be reversed, and the case remanded for such further proceedings as may be necessary.  