53 S.C. 285 | S.C. | 1898
The opinion of the Court was delivered by
This action was begun in the Court of Common Pleas for Greenville County, on the first day of September, 1896, to obtain a perpetual injunction restraining the defendant, the city council of Greenville, from levying and collecting an assessment of two-thirds of the cost for laying a sidewalk on each side of Main street, from Reedy River to North street, from those owners of real estate which abutted on said Main street, within the limits above stated, on the ground that the act of the legislature of this State, approved in the year 1891 (see 20 Stat. at Targe, 1372), was unconstitutional on the several grounds set up in the complaint. The answer denied that the act in question was unconstitutional; or that there was any failure on the part of the city council that rendered the assessment null and void; or that the plaintiff could controvert the constitutionality of the act in question by reason of the fact that as to him the judgment of this Court, as found in the case of Mauldin v. City Council of Greenville, 42 S. C., 293 (affirming its constitutionality), was res judicata.
The cause came on to be heard before his Honor, Judge Watts, upon exceptions to the report of Master Verner, and by Judge Watts’ decree it was held that the defendant should be enjoined and restrained from levying the assessments against the plaintiff and other property owners on Main street for two-thirds of the costs of improvements to the sidewalks and drains.
From this decree the defendant now appeals on eighteen exceptions. There have been two hearings had in this Court. On the first, when the argument was finished in this Court, an order was passed directing a reargument, with leave to counsel to question “the correctness of the former decision in this case, as reported in 42 S. C., 293, so
former decision, so far as sidewalks and drains are concerned. The two Justices who rendered the former decision confessed with candor that so much of their judgment as related to sidewalks and drains was reluctantly made because of some previous decisions rendered while the Constitution of 1790 was of force, and not because in their opinion such previous decisions were bottomed upon correct principles of law. The two Justices in question felt a reluctance to overrule such decisions; but now, when the Court is full, we propose to go to the root of the matter, and if it becomes necessary to destroy the former decision, as found in 42 S. C., 293, so far as sidewalks and drains are concerned, to do so. It must be borne in mind that the Constitutions of 1787 and 1790 contained no restriction upon the power of the General Assembly in the matter of taxation than that which ordained: “No freeman of this State shall be taken or imprisoned, or exiled or disseized of his freehold, liberties, or privileges, or outlawed or exiled,
It is, therefore, the judgment of this Court, that the judgment of the Circuit Court be affirmed.