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 III., of 'the present Constitution, nor are they repealed by subdiv. 3 of sec. 11, of art.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 re*521fused, 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.
1 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 *522more 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 *5232 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.