Hutton v. Webb

Eurciies, J. We think tbe judgment below should be affirmed. To our minds there is too little resemblance in a public turnpike road and a navigable water course to afford analogy for argument, from which proper conclusions may be drawn. Tbe turnpike is created by legislation and can be abolished by legislation. But a navigable water course is not created by legislation and can not be abolished by legislation. It is true that tbe Legislature may by proper enactment [752] provide for tbe improvement of sucb waterway for tbe benefit of 'navigation. But the Legislature can not impose duties upon tbe commerce upon sucb waters, for tbe purpose of “building public bridges, and of cleaning out tbe fords, public and private, across” sucb water courses. Tbe right of taxation or “assessment” is a grant of sovereign power and can only be exercised for the public good. This sovereign power can not be granted for private benefits or for corporate gain, unless sucb gain be incident to tbe public benefit, authorizing tbe exercise of the taxing power of government. It is manifest from tbe provisions of this Act that it was passed for tbe benefit of tbe Counties of Burke, McDowell and Caldwell, and not for tbe public good — the improvement of tbe navigation of tbe streams therein named, as their improvement for sucb purpose is not mentioned. Tbe duty of this “board is to remove driftwood (that may gather at shoals on said streams when tbe water is low, so as to obstruct fords used for public and private crossings, or pond back tbe water) at any point on tbe Catawba River,” etc. And this board is to provide for the ascertainment of tbe number of logs floated and to fix the charge thereon; and “after paying for keeping the shoals as aforesaid and for ascertaining tbe number of logs floated, any residue of tbe fund arising from said tolls shall be divided among said Counties.” This board is to report to tbe Commissioners of each of tbe Counties the respective part of dividends that belong to it, and the Commissioners shall “assess tbe same” and enter up judgment for said amount against tbe parties assessed, and execution shall issue thereon “as for other tax assessments.” This Act was passed in tbe Spring of 1897, and under its operation tbe plaintiff was taxed $275.50 in tbe Spring of 1898, and his property advertised for sale. But few private business enterprises in this State can stand such an assessment as this. In [753] our opinion, it is in contravention of the provision Article VIII, Section 4, of the Constitution, there being nothing in the Act limiting the power or extent of taxation. But outside of this provision of the Constitution, we do not believe it can be sustained. It provides for the levy of “taxes or assessments” on private property for private benefit, and not for the public good. It is in conflict with the whole tenor and spirit of the Constitution, and of our institutions. It is an unauthorized exercise of sovereign power in the hands of this new board of Commissioners, and we think the judgment of the Court appealed from should.be affirmed. MONTGOMERY, J., dissents.