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BY E. B. MURRAY & CO. ANDERSON, S. C, THURSDAY MORNING.. AUGUST 28, 1870. VOL. XV-lNO.T. THE GREAT DRAINAGE CASE. judge mac key's decision. State of South Carolina, \ County of Anderson, j In the Court of Common Pleat, Oliver H. P. Fant and Joshua Jameson, County Commissioners of Anderson County, as Commissioners of Health and Drainage, Plaintiffs, against J. A. Keowo, W."D. Evins, R. S. Bailey and Mary Warnock, Defendants.?Cam plaint on Assessment for Drainage. This cause came on to be heard before me at the February term, 1S7S, of the Court of Common Pleas of Anderson County. A separate camplaint was filed as to each defendant, and the defendants filed their several answers, bat, by agree? ment of counsel, the four cases were heard together, and are to b-2 determined as one. Tho plaintiffs allege that they "are County Commissioners of Anderson County, in said State, and as such are Commissioners of Health and Drainage for said County, by virtue of the Act of the General Assembly, entitled 'an Act to constitute tho County Commissioners of Anderson County, Commissioners of Health and Drainage, and to define their powers and duties therein,' approved March 14tb, 1S74. JJ. "That on the 19th day of July, 1875, at Anderson, S. C, the defendants, with others, constituting more than one-third of the landowners on Rocky River and Beaverdam and tributaries, filed their petition to the plaintiffs, as Commission? ers as aforesaid, in due form, praying, among other things, that they proceed to have such water courses ditched, and the shoals blasted out, naming Majors' Shoal on Rocky River, and that said stream be drained according to the true intent and meaning of said statute, a copy of which petition is herewith filed as part of this complaint. III. "That pursuant to said petition the plaintiffs took charge of the same, and granted said petition, and, among other things, adjudged that the blasting out and removing of the shoal, known as Enoch Majors' Shoal, and the removal of other obstructions between said shoal and the bridge above, in such places as there are no Sods to be benefited, bo done, and the expenses thereof be borne by the landowners along said streams in the ratio of the number of acres of bottom land each one has along said streams to be benefited by drainage. IV. "That thereupon the plaintiffs con? tracted to have said work done, and en? tered into a contract with Joseph B. Moore to blast out the rock obstruction at said Majors' Shoal, on said Rocky River, below defendants' lands, the ex? pense of which was twenty-three hun? dred and four thirty-seventh-hundredths dollars, ($2,304.37,) which being assessed on the landowners according to the num? ber of acres to be benefited, belonging to each, made the sum of one hundred and sixty-five forty-five-hundredths dol? lars ($165.45) due by the defendant, R. S. Bailey, on fifty-eight (5S) acres of land, which amount was duly assessed against him. V. "That the said work of blasting has been completed, and tho plaintiffs are now entitled to said assessment against said defendant to pay their obligation for said work. Wherefore, plaintiffs demand judgment," &c. The complaints filed as to the other defendants herein contain the same alle? gations as the foregoing, except as to '"the number of acres to be benefited," and the amount assessed on their lands respectively: J. A. Keown being as? sessed for $126.30, on 441 acres ; W. D. Evins, $171.95, on 60 V acres; and Mary Warnock, $262.55 on 92 acres. The petition of landowners referred to in the above cited complaint is as fol? lows : "The State of South Carolina. ,!7b (he Count;/ Commissioners of Anderson Countij, as Commissioners of Health and Drainage: "The undersigned, citizens of Ander? son County, and State aforesaid, being, at least, one-third of the landowners for a distance of not less than five miles up and down Rocky River and Beaverdam, respectfully show unto your honorable body that the general health of a consid? erable portion of the citizens of Ander? son County in said Rocky River and Lit? tle Beaverdam is seriously affected by the sluggish and filthy condition of said streams, and that there is a large scope of bottom lands along said river and creek which are utterly worthless, aud that the same cannot be remedied, in the opinion of your petitioners, without said streams are ditched from Enoch Majors' Shoals, below the bridge, on R. Q. An? derson's land, to the upper line of L. D. Stringer, on Little Beaverdam creek, be? ing a distance of over five miles. Your petitioners, therefore, pray that your honorable body shall ascertain the facts stated above, and, if satisfactory, shall have an estimate made of the cost of said proposed drainage in said river, creek and tributary streams, aud proceed to have such water courses ditched, and shoals blasted out, and drained, accord? ing to the true intent aud meaning of the statute, on such subject made and pro? vided, approved March 14, 1874." This petition bears date July 19th, 1875, and the names uf the defendants herein are attached thereto ; the defen? dant Mary Warnock denies in her answer that she "signed the said petition, and further denies that she authorized any person to sign her name thereto. It ap? pears from the testimony that her name was attached to the petition by her eldest bom, J. D. Warnock, and, although he acted in good faith in the premises, he had no authority to sign his mother's name to the said petition, and she refused to ratify his action therein. In the view, however, that I have taken of the case, I do not regard this point as material. The defendants answering, severally, dwiy that their properties have been ben? efited by the work done by the plaintiffs, alleging that no part of their respective lands has beeu drained thereby. They further allege that the Act of the General Assembly, under which the said work was done, and the assessment Upon their property levied, is unconstitutional and vid. It appears from the documentary evi? dence submitted on bebalf of the plain? tiffs, that after having duly considered and determined to grant the petition herein, they, on the testimony of a com peient engineer, entered into a contract with Joseph B. .Moore, on the - day - 1875, based upon proposals sub? mitted by the said contractor, wherein it was stipulated that ho should open a channel lor the Rocky River, at the lower and upper Majors' Shoals, and that he should be paid therefor by the plaintiffs, according to the number of cubic yards of excavation at the following rules: Kurth excavation per cubic yard, 12! cents; loose rock excavation per cubic yard, 75 cents; solid rock excavation per cubic yard, $1.87} cents. The width of the excavation was "to be twelve feet at bottom, with a slope of six inches hori zontal to twelve inches vertical in earth." The rock excavation to be without slope. The excavation "to be taken down to the full depth directed by the engineer, and with a uniform bottom." While the work was in progress, and after the plaintiffs had levied the first as? sessment for payment of the same, the defendants herein, with others of the original petitioners, filed their protest against the further prosecution of the work under the contract. In this protest the defendants state that, "at the time of filing the petition referred to, as is known to your body, a survey was made of said stream for nitie miles, commencing at Enoch Majors' Shoals, by a competent engineer, and estimates were made of the cost of draining said stream. The engi? neer so employed represented the neces? sity of blasting out the rock in said shoals to the depth of four feet below the bed of said stream, and the estimated cost of doing this work alone was put down at the sum of six hundred dollars. This work is still unfinished, and the aggregate assessmeuts on the landowners along said ?tream and within the nine miles aforesaid amount to something over nineteen hundred ($1900) dollars. If the work, as originally contemplated, is to cost as much more as this work alone has exceeded the estimate, it will take all their lands assessed to pay for the work, and perhaps more." The work of excavating having been completed according to the contract, the plaiutiffs levied an assessment, to pay for the same, on all lands within the area designated for drainage. The assessment was not made upon the value, but upon the acreage, at the rate of about two dol? lars and eighty-five cents ($2.S?) per acre. Before proceeding to decide the issues of law and of fact that arise upon the pleadings, it is proper for me to observe that after the Defendants had given due notice of appeal from the judgment of the County Commissioners levying the assessment in question, the plaintiffs herein filed their complaint in this ac? tion. The cause, however, was heard as an appeal, pursuant to the Act constitu? ting the County Commissioners the Com? missioners of Health and Drainage, which provides (Section 2, Stat. Large., Vol. 15, p. 623) "that should any party feel aggrieved by the decision or action of the County Commissioners in the premises, it shall be lawful for him to appeal to the Judge of the Circuit at the term of the Court next ensuing, whose decision in the matter shall be final." The complaint and answers were there? fore considered only as serving to exhibit, respectively, the judgment of the County Commissioners iu the premises, and the reasons given therefor, and the grounds of appeal from said judgment. The learned counsel on behalf of the defendants assail the constitutionality of the Act empowering the County Com? missioners to levy the assessment com? plained of on the following grounds: First: That it violates Sec. 23, Art. 1, of the State Constitution, which declares that "private property shall not be taken or applied for public use, or for the use of corporations, or for private use, with? out the consent of the owner, or a just compensation being made therefor." Second: That it violates Sec. 37, Art. 1, of the Constitution, which declares that "no subsidy, charge, impose tax or duties shall be established, fixed, laid or levied, under any pretext whatsoever, without the consent of the people, or their representatives lawfully assembled." Third: That it violates Sec. 11, Art. 1, of the Constitution, which declares that "the right of trial by jury shall remain inviolate." Fourth : That it violates Sec. 14, Art. 1, of the Constitution, which declares that "no person shall be arrested, impris? oned, despoiled or dispossessed of his property?mmuuities or privileges, put out of the protection of the law, exiled or deprived of his life, liberty or estate, but by the judgment of his peers or the law of land." Fifth: That it violates Sec. 19, Art. 4, of the Constitution, which provides that in all cases there shall be the right of appeal to the State Courts from the de? cisions of the Board of County Commis? sioners, while this Act makes the decis? ion of the Circuit Judge final. Sixth : That it violates Sec. 36, Art. 1, of the Constitution, which declares that "all property subject to taxation shall be taxed in proportion to its value." This case preset)ts no feature that makes tho first objection to the constitutionality of the Act at all pertinent. No private property has been taken either for public use, or for the uso of a corporation, or for private use. The clause of the Constitution cited in support of this objection is a restriction upon the State government in tho exer? cise of the right of eminent domain. In the interest of the citizen it imposes a limitation upon the sovereignty of the State. The right of eminent domain is that supreme right of property, inherent in the sovereignty by which the private property of the citizen, acquired under its protection, may be taken or controled for the benefit of the public against the will of its owner. Pollards Lessee vs. Hogan, 3 Howard 223. In the exercise of this right the State compels the citizen to surrender some? thing beyond bis due proportion for the public benefit, for which lie is entitled to claim special compensation ; while in the exercise of the power of taxation, the State requires the citizen to contribute only his due proportion in money for the support of its government at a rate fixed by law, which must be uniform and ac? cording to value. In the latter case the citizen receives no special remuneration, but shares only in the general benefit re? flected b:iek upon tin- community by the just application of the whole proceeds derived from taxation. To exercise the righ of eminent domain there must be a taking of property from its owner by the power of the State. To constitute a tak? ing '.he owner must be dispossessed of his property or be deprived in sonic form of its use, to which he is solely entitled. Until he is disturbed in the posses-ion, or free use and enjoyment of his proper? ty, there is no taking, and he has no right of action, and is not entitled to compen? sation under this clause of the Constitu? tion. Gould vs. Hudson River It. R. Co., 12 Harb. 61G; Radeliff vs. Mayor, <fcc., ol Brooklyn, 4 N. Y.; Fuller vs. Eddings, 11 Rich. Law 239; Cooley's Con. Lim., "?41 et. seq. The defendants herein do not even allege that they have been dispossessed of any portion of their property or that any injury has been inflicted thereon. They do not complain that they have been in? jured, but only deny that they have been benefited. In support of the second objection it was urged, arguetldo, that Section -'!7, Article 1, of the Constitution above cili il forbids the Legislature from delegating to the County Commissioners the powers of ;is?cssnicnt and taxation vested in them by this Act. It docs not appear that this Section id" the Constitution was intended to inhibit the Legislature from delegating its power of taxation in the manner prescribed in the Act under con? sideration. If the County < lomiiiissioncrs I had levied the assessment complained ol j without an Act of the Legislature an- i thori/ing them so to do, then this clause of the Constitution might be successfully invoked against their action in the prcm- I ises, as "without the consent of the pco- i pie or their representatives lawfully as? sembled." In this case, however, the tax has been levied by special legislative J authority. So far from forbidding by ; implication the delegation of the power of taxation by the Legislature to public corporations, the Constitution in express terms authorizes the delegation of such j power, for it declares (Section 8, Article : D.) that "the corporate authorities of j counties, townships, school districts, cities, towns and villages may be vested with power to assess and collect taxes for ; corporate purposes." The third objection does not appear to be well taken. The right of trial by jury is not involved in the case at bar. it is a settled rule of construction applicable alike to constitutions and statutes, that whenever a common law term is used in a statute, without any express statutory definition, we are remitted to the com rnon law to ascertain its full force and true meaning. The term "right of trial | by jury" is derived from the common law. It is that inviolable right?the most potent safeguard of the life and j liberty of the citizen?which every per? son accused of crime in the Courts has ! of being tried by a jury of his peers, con- J sisting of twelve good and true men, law-1 fully drawn and empanelled and duly i sworn. It is the mode of trial prescribed in criminal accusations, and the term as used in the Constitution relates to the trial of persons accused of criminal of? fences. To hold that every party to a uivil action is entitled under the Consti? tution to have the issues of fact arising jpon the pleadings determined by a jury, ivould be to abolish our whole system of jquity jurisprudence, which is more an? cient even than the right of trial by jury. But whatever may be the rights of par tics in other civil actions, the defendants herein having voluntarily set this statute in motion, and invoked the judgment of :hc Court under its provisions, are clearly stopped from urging this objection. Where a constitutional provision is de? signed for the protection of the property rights of an individual, it is competent For him to waive the protection and con? sent to such action as would be invalid if taken against his will. (Cooler Con. Lim. 1S1; Baker vs. Bramnn,G Hill, 47.) The reasons given for overruling the bird objection apply equally to the fourth, which is urged upon the same grounds. The fifth objection is, in my judgment, is untenable as those which precede it. Fbe objection that the Act is unconstitu? tional because it provides that the decis? ion of the Circuit Judge shall be final, :>n appeal from the judgment of the Donnty Commissioners, cannot prevail ivhen urged by a party who has himself, jy own voluntary action, sought.such tri? bunal. He must be deemed by his acts to have waived every such constitutional objection. This has long since been set? tled law in this State. In the case of I'cople vs. Murray (? Hill, 46S,) it was held that where parties were authorized ay statute to erect a dam across a river, provided that they should first execute a jond to the people conditioned to pay iuch damages as each and every person night sustain in consequence of the erec ;iou of the dam, the damages to be as? sessed by a Justice of the Peace, in an tction on the bond to recover those dam iges, the paity erecting the dam was pre :luded by acting under the statute from ibjecting to its validity, and insisting on lis right to a common law trial by jury. Sec also Lee vs. Tillotson, 2-1 Wendell !39.) I shall now proceed to consider the iixth and last objection urged against the ;onstitutionality of the Act, on the ;round that it authorizes a system of tax? ation, other than ad valorem, contrary to he provision of the Constitution, that 'all property subject to taxation shall be axed in proportion to its value." A provision similar to this has been incor lorated into the Constitution of every American State, and it has received judl :ial exposition in a long line of authori? tative decisions. It may be now safely jfld that the constitutional requirement, hat property shall be taxed in propor ion to its value, relates only to the gen? eral tax levied to defray the ordinary marges of the State government, and Iocs not prohibit the levying of an as? sessment or tax for local improvements, jascd upon the special benefit conferred ipon the owner of the property, the value )f which is enhanced by such improve ncnt. Indeed, this is in effect a tax ac? cording to value, for it is presumed that :he property benefited shall alone be axed. Says that eminent jurist, Mr. Justice Coolcy, in his admirable work on Constitutional Limitations, (pp. 4'.'7-4!?'.) 'it would seem that the constitutional requirements that taxation upon proper? ty shall be according to value do not in? clude every species of taxation. Assess? ments for the opening, making, improv? ing or repairing of streets, the drainage )f swamps, and the like local works, have jcen generally made upon property with some reference to the supposed benefits rvhicb the property would receive therc rrom. Instead, therefore, of making the tsscssment include all the property of the municipal organization in which the improvement is made, a new and special taxing district is created, whose bounds ire confined to the limits within which property receives a special and peculiar benefit in consequence of the improve-! mcnt." Tho Constitution of Michigan provides j that "all assessments shall l>e on property it its cash value. Tho Supreme Court of '. that .Stale, however, held that a local tax. j levied in the city ol* Detroit to meet the | Expense of having a public street, al though levied not in proportion to value ' but according to an arbitrary scale ol I -opposed benefit, was not invalid under the constitutional provision. (Williams vs. Detroit, 2 Mich, 5tit'.) In the case of Weeks vs. Mihvaukie, 10 Wisconsin -242, the Court held that these local burdens are generally imposed j under the name of a&emiical* instead of faxes, and that therefore tlicy are not covered by the general provision in the constitution of the State on the subject of taxation. Hence, an exemption of church properly limn taxation bus been | held not to preclude its being assessed for improving streets in front of it. (Lockwood vs. St. Louis, 24 Missouri 20; Le Fever vs. Detroit, 2 Michigan The general principle laid down in the above cited eases is al-o strongly support? ed i?? Sharp vs. Spier, 1 IliilT'i: and Cruikslmnks vs. City Council, 1 McCord :;.;o. The following case is cited a> nearly on all lours with that under consideration. A small suburban community was incor? porated by the legislature of Kentucky in the vicinity of a city bv the title of "The District*of Highlands'." The Act of incorporation authorized its trustees "to grade and pave, or Macadamize, with rock or gravel any public road passing through or into said district, within Ihu limits thereof, with the assent of two thirds of the landowners through whose lands any such road may pass, anil lu levy special taxes on such real estate to , pay for such grading and paving." It was held that the Act was constitll- j tional, and that "the levy of a tax on the j petition of the requisite number of land? owners on the land abutting the roads improved, rated by the number of acres of each owner's tract, could not be ad- \ judged unconstitutional for unjust ine- j quality." (Malchus vs. Highlands, -1 j Bush/547.) I The ('(institution of California provides that "all properly in the State shall be taxed in proportion to its value." The ' Supreme Court of that State held that I this clause referred to the general or or- j dinary taxation to defray the ordinary expenses of the State, and its subordinate local governments, and not to assessments j for local improvements; that assessments j for such purposes need not be laid on the ad valorem principle, but the Legislature is at liberty to adopt a different basis of apportionment?-such as frontag?"', super? ficial contents, or benefit* reccitctl. (Em? ery vs. (Jas Company, 2$th Cal. .'54? ; Sec Dillon on Mutiie. Cor. Vol. 2, Sections 598-608; ami Burroughs on the Tower of Taxation 125.) The defence upon the merits under the Statute is based upon the ground that t he Defendants have not been benefited by the work done, anil are therefore not le? gally bound to pay the assessment levied on their property to defray the cost of said work. Upon this question of fact ten (10) witnesses were examined at the hearing before me. Maj.T. 11. Lee, the engineer in charge of the work, testified that the area of drainage effected by the excava? tion at the Shoals did not extend more than a mile above the Shoals. It was in proof that the lands of the Defendants that are assessed to pay the cost of such excavation arc situated" from four (4) to six (i>) miles above the Shoals. Mr. Moore, the contractor, testified to the same effect as Major Lee, and both con? curred in the statement that neither of the Defendants had derived any benefit from the work done. The Plaintiff Fant, Chairman of the Board of County Com? missioners, testified in the cause, and stated that lie "could not say that the Defendants had received any benefit" from the work which they are assessed to pay for. Not one witness testified that the De? fendants had been benefited thereby, while, on the contrary, nine out of the ten witnesses testified that neither of the Defendants had received any benefit whatever from this ill-judged excavation, effected at a cost of $2,30-1. The Defendants petitioned timler the Act to have the lands lying along the waters of Rocky River and Leaver Dam Creek "drained for the reasons set forth in their petition. The benefit to be con? ferred by the proposed improvement was the drainage of the lands within the area designated in the said petition. The Commissioners did not even stipulate with the Contractor that the drainage prayed for should be effected by the pro? posed excavation. It was simply a con? tract to excavate an indeterminate num? ber of cubic yards of earth anil rock. The depth of the excavation was not stipulated, but was left to the discretion of the engineer, who supervised the work on behalf of the Commissioners. I am constrained to find, as a matter of fact, that the Defendants herein have not been benefited by the work done for which their property has been assessed. The Defendants having received no benefit from the work done, are they le? gally liable to assessment to pay the cost of the same? On this point the learned counsel on behalf of the Commissioners insists arguendo that they, in effect, acted as the agents of the Defendants in the prosecution of this werk, being moved and authorized thereto by Defendants' petition, and that the Defendants thereby contracted with these Plaintiffs to pay the assessments necessary to defray the cost of said work, the same having been executed in pursuance of their said peti? tion. It does not appear to me that this position is tenable. The filing of the petition was simply a part of the machin? ery of the Act. The condition precedent on which the County Commissioners were "empowered to make contracts for such drainage." What the terms and condi? tions of such contracts should be, or whether they should contract at all, was b matter confided by the statute to the judgment of the County Commissioners. That judgment the Defendants had no power to control. While expressing the "opinion" in their petition that the blast? ing out of the lower and upper Majors' Shoals would effect the desired drainage, they remit the whole matter to the judg? ment of the County Commissioners. This clearly appears from the closing paragraph of their petition, which is in the following words: "Your petitioners therefore pray that your honorable body *hull ascertain tin: farts stated above, and, if satisfactory, shall have an estimate made of the cost of said proposed drainage in said river, creek and tributary streams, and proceed to have such water courses ditched and shoals blasted out and drained, according to the true intent and meaning of the statute on such subject made and pro? vided." But the Commissioners had no "esti? mate made of the proposed drainage," for they simply entered into a contract to have an excavation made in Majors' Skoals, for which they were to pay a specific sum per cubic yard, the number of cubic yards being left undetermined. The cost of the work was therefore an unknown quantity at the date of the contract for excavating. The Defendants cannot in any legal sense be held to have entered into a contract with the Commis? sioners lo pay for the propose ! work without regard to its beneficial results. It is of the essence of a contract that it shall, for a legal consideration, bind all the parlies thereto. Its obligation is mutual. It is an essential incident of every contract that the party who justly complains id' a breach of its terms shall have a right of action to enforce it. Lul the Defendants could not, under the statute, have enforced a demand that the Commissioners should grant their peti? tion, or compelled them by any legal proceeding to execute the proposed , drainage aller they had decided to grant j the petition, and bad informed the De? fend-in! ? that they had rendered a favor- | able judgment thereon. The only liabil-1 ity that the Defendants could incur by ! their petition was fixed by the statute, the beneficial provisions of which they ? thus invoked. It was a liability lo an j assessment for drainage, to be imposed i upon llr. ir propeiiy benefited by the] same. j Tiiis is the manifest meaning and in? tent of the statute. In language is as I follows: " That in cases where one-third j or the landowners upon any water course for a distance of not less than live miles up and down the stream in said County shall desire to drain the lands upon such water course, the County Commissioners shall, upon petition, personal service, and the testimony of one or more competent engineers, be piii|m?ivercd lo make con? tracts lor such drainage, and imp.the I propi r assessment ?/*<? rnrbm* pm/f ,rf?* I., ?. ,:>. ,I l,,f //., . .?(. ." (Section 2 I s. I., p. It will thus seen by the very lonos I (?f the Act that the Defendants were not liable as petitioner*, but as beuffichteie?. The Commissioners have themselves as? serted this view by imposing the assess? ment also upon the property of persons who were not petitioners. The liability incurred must be measured by the scale of benefit received. This position is very strongly reinforced by the decision of the Supreme Court of Michigan, in the case of Thomas et al. vs. Cain, reported in the Law and Equity Reporter of March 23, 1877, and cited ami ably commented on by one of the learned counsel (James L. Orr, Esq.,) on behalf of the Defendants. It is further urged on behalf of the Commissioners, that the Defendants, by their second petition, protesting against the further progress of the worlc at Majors' Shoals, themselves prevented the benefit that their property would have received from the further prosecution of the said work. This statement does not appear to be warranted by the evidence. In the record of the case, submitted by the Plaintiffs, I lind the following com? munication, addressed to the Chairman of the Board of County Commissioners, announcing the entire completion of the work under the contract, the excavation having previously been finished at the lower Shoal. As shown by the date of this communication, the work at the Shoals was completed before the second petition or protest was fiied: "Axdeksox, Co., Sept. 23d, 1S7G. "//"//. 0. II. P. I'm!, Chairman Cwnbj CommiminncM: '?Sin?Mr. Moore has finished his work at the upper Majors' Shoal on Rocky River, in conformity with his contract. I herewith return the amount of excava? tion done by him, under said contract: cubic yds. earth excavation. 923 cubic yds. sol ill rock excavation Total.lii?'! cubic yds. excavation. Respectfully, Titos. B. Lee, Engr." I am unable to perceive that the scc >nd petition affected in any degree the tction of the Commissioners, under any contract entered into by them. The petitioners might well have been llanncd at the further prosecution of a scheme of drainage, signalized in its ini tial stages by the explosion of scveuty :\vo barrels of gunpowder without any beneficial result, and at a cost of more than two thousand dollars, which, accord? ing to the testimony of the Supervising Engineer, was at tho rate of one hundred mil forty-four dollars ($144) an inch for "tvery inch that the River was lowered jctwcc.'i the two Shoals. All their hopes ii receiving any benefit from the plan of Irainagc adopted had been "blown into .hin air." and it was their right and duly, is an act of self-preservation and for the niblic good, to file their protest against its further prosecution. These four cases, it is stated by the earned counsel for the plaintiffs, are in :ended to test the questions involved, here being twenty-two others of the :amc class still awaiting determination. [ have given to them full and earnest consideration, and have arrived at the conclusion in the light of the law ami the evidence, that the property of the defen? dants is not liable fur any assessment im loscd thereon to pay the costs of any ,vork done under the contract for drain ige entered into as alleged, by tho Coun? ty Commissioners of Anderson County, tcting as Commissioners of Health and Drainage. It is therefore ordered, adjudged and lecrced, that the appeal of the defen lants, appellants herein, be sustained, tnd the judgment of the said Board of bounty Commissioners, levying an assess nent upon their said several properties br drainage, be, and the same is hereby, reversed, and that the defendants, appel? lants and the respondents herein, do each ?ay their own costs. T. J. MACKEY, Circuit Judge. August ICtli, 1S79. Home Made Feetilizeu.?Judge K. ?. Moore, one of the most successful armers of our county, bands us the fol owing formula for composting home nade fertilizer, which, the Judge claims, s as good as any of the standard com ncrcial fertilizers in the market, aud ;hcap because it co-ts nothing except a little labor. The formula for one ton of the fertili? ser is as follows : One thousand pounds )f rich- loam earth (procured from the fence comers, or wash places, or surface lirt from the woods,) and fifteen bushels jf cotton seeds ; put into the stables of a ior.-c or cow, cover with n sufficient tmount of leaves or straw to prevent the ;tall from becoming muddy or dirty. Let it be tramped twenty or "thirty days, irhen it may be put in a pen and another supply in the stable. By this method, Judge Moore says .hat a ton of fertilizer lor each horse or :o\v can be made, equal to the best fer? tilizer offered in the market, which is dis? tributed in tho same way, and in the iamc quantities as guano. All who know Judge Moore, know that he lias succeeded as a farmer and he is no cas? tle builder. Wc hope our farmers will live this manure a fair lest, and save themselves the thousands of dollars paid to fertilizer manufacturers.?Ikopjiu l>i uiocrat. A Remc of tiu: Mouxn Birif.nEiw.? While excavating for a spring for reun? ion purposes to-day on the lands of Rev. VV. II. McFarland, near this place, John 5. Gallup came in contact with what up- ' pearcd to be a smooth cut stone and dug lown to the foot of the third step, where lie found a basin made in the solid rock that will contain G fly barrels or more of water. It was cleaned out, anil a stream is pouring into it from ihe crevice of the ! rock at the rate of l?,000 gallons a day. j There is no written account of these j hewn steps and basin, and the olde.-t citizen had no knowledge of their exis- j teneo. This was probably nn important i watering place during the mound build-I Grs' period. At any rate it i- a subject j fur investigation by the antiquarians. It is regarded as a great curiosity and won? derful discover}', and is the theme of all j conversation on the streets to-night.? ('iiichiiwli (oumicrvial. ? A Georgia negro girl who went to Liberia in LS77 has returned. She docs not give a very cheerful account of bor experiences in that free republic? Among other tilings, she says that, "the natives season everything very highly with pepper, and when a child is born among them lh?y stuff its mouth will red pepper and gruel, and lay it in tin sun lor an hour. They say it will make it strong and healthy.*' Also she says, "the natives are very bard on our people when they commit crime." She men? tions the case of one Itciibcn Caylin. who siole something from one of ibeni and they caught hin., tied n big roek around his neck and threw him in the river. Din: Daily Fooi??Adiilleratb i pre? vails in our daily food, hood is a most important necessity, and ii should be wholesome and nutritious. If all articles that are used were as pure and bealtliflli as Dr. I'rice's Cream I "aking Powder, we should escape many of the ills uf life. AFTEK APP031ATT0X. .\n Interest in:; Talk willi flon. R. IS. Lec. When the army of Gen. Sherman was making i;> famous homeward march to Washington it rested for a few days in the fallen Capital of the fallen Confeder? acy. While there a federal chamnlain visited Gen. Hubert K. Lee, and had an interesting conversation with him, and this conversation now sees print, for the first time, in the Cincinnati Commercial. The writer says : Accompanied by Gen. Geary, after? wards Gorcrnor Geary, of Pennsylvania, and provided with a letter from (Jen. IJa/.en, who know Gen. Lee at West Point, I was admitted to tho presence of the illustrious commander. Gen. Lec was erect and handsome. His easy smile and simplicity of manner did not speak of disaster. He was very positive in his conviction-, but in our long talk always weighed every sentence. Presi? dent Lincoln's assassination was upper? most in all our minds. Gen. Lec said : "The death of that eminent citizen has filled uie with horror. If there were blemishes in his character, his life ex? hibited some splendid and rare virtues, lie was one of the most extraordinary men that ever lived in our country. His heart was grand and large, lie was constitutionally pensive. Had he been spared, the South would be treated with honorable propriety and with a gallant generosity ; that good-will and friendli? ness would have marked his treatment of the people of the South." Gen. Lec now adverted to the character of Grant, of whom he spoke in the most friendly words and terms. Ho ascribed to him the possession of the noblest attributes of American manhood, that he possessed all the requisites and talents for the or? ganization of armies. "I wish," said Gen. Lee, "to do simple justice to Gen. Grant, when I say that his treatment of the Army of Southern Virginia is with? out a parallel in the history of the civil? ized world. When my poor soldiers, with famished faces, had neither food nor raiment, it was then that Gen. Grant immediately issued tho humane order that forty thousand rations should be furnished to the impoverished troops. Aud that was not all of his magnanimi? ty. I was giving directions to one of my staft*officers when making out the list of thine- to be surrendered, to in? clude the horses. At that moment Gen. Grant, who seemed to be paying no atten? tion to what was transpiring, quickly said: "No, no, (ion. Lee, not a horse? not one?keep them all. Your people will need them for the spring crops!" It was a scene never to be forgotten to watch Leo's manner, when, with a spirit of chivalry equal to his skill and gallantry he told, with moistened eyes, this and many other instances of tho magnanimi? ty so nobly displayed by his illustrious rival. I asked him who was the greate-t of the Federal general-. "Indeed, sir, I have no hesitation in saying Gen. Grant. Both as a gentleman and an organizer of victorious war, Gen. Grant bath excelled all your most noted soldiers. He has exhibited more real greatness of mind, more consummate prudence from the outset and more heroic bravery than any one on your side." The conversation turned to Gen. Sherman, of whom he spoke as follows: "As a stratciri-t and commander of men Sherman has dis? played the highest order of military ge? nius. Throughout hi-1 recent campaign, when lie had to pass through an un? known country, cross rivers, support his troops, &c, he certainly exhibited a sin? gleness of purpose, a fertility of rcscourcc which wins him a high place among the famous soldiei-of history. lie seems to bo cool without apathy, cautions without being dilatory, patient without being dispirited, persona?y bravo, but never rash. Judged by Napoleon's test, 'Who did all that'." he is, in my opinion, among the most successful of the Federal officers who have played a prominent part in the history ot the war. In the course of conversation he spoke of Sheri? dan as a most brilliant and magnetic commander. WHY THE CONFEDERACY fUOVED A FAILURE. To the question : "What was the cause of the failure of the South?" the General smilingly said: "I am not a very good extemporane? ous speaker, nor am I a very good extem? poraneous answerer of questions. The most conspicuous reason was the superi? ority in men and in resources of the North. The United States had all the advantages?a land of boundless wealth, cities secure from the horrors of civil war. aud a constant stream of emigrants to till up tho depleted ranks of your ar? mies. The numbers against us wore enormous. The population of the South was ncwr more than seven millions. With five to cue against thorn thp Southerners performed a mighty work and made a gigantic step towards their in? dependence. "Another cau-c lay in the vanity of many of our people. The first battles of the war being favorable to us, lite South was wild with confidence and the whole country wa-thrown into a ferment of ex? citement. It was doubtful, indeed, whether one in a thousand of our people suppo-ed for a moment that there was any doubt of nil immediate and a suc? cessful termination of the struggle. The public meetings were in every case loo enthusiastic. The people were car? ried away by acclamation. Tho cheer ing proved io be our lolly. This excess of confidence lost us New Orleans anil many other cities. "\ much more serious difficulty arose from the mistaken view of the Southern cause bv the Philanthropists of tin.- Old World. ' They were I..I to believe that we were fighting for the perpetuity of slavery, and that the establishment of the Confederacy would be the reopening of the African -lave trade. This opinion shook the faith of great ami good men in the humanity and righteousness of the South. The conscript law was another effective check to our success. Instead of being a benefit, it was :i curse?a badge of disgrace. The rieh were fa? vored; falsehood and dissimulation were its natural results, suspicion and mistrust arose where confidence and reliance should have prevailed. Tin:attitude pre? served by .'dr. Davis and other leaders in opposition to '.he arming of the negroes, a policy which I always believed to be expedient, proved most disastrous. The wide spread pov< rty of the country, ac? companied by the just conviction that all further efforts were hopeless -these and other forces worked In one final re? sult, the failure of the (tonfedcracy." j THE r'OREKiN ELEMENTS IN BOTH AR? MIES. our next topic of conversation was the foreign element in both armies. Speak? ing of the Irish, he declared with con? siderable feeling that the "South could not reconcile with their notions of con? sistency and honor, how Northern Iii-h iiicii, who were so desperately and vio? lently op|Mised to the thraldom of Bri? tain?the wrongs of Ireland being mos iiiiiio-ldles by the side of the enormous injuries wk.trh had be. u indicted by the North on the South?how liberty loving Irishmen could light against the South enters contending fur independence and equality of rights." I suggested that the soldiers of Irish origin in our armies were equally bewildered to know how Irishmen who for centuries had gallantly contended for the freedom of the Celts could be s<j inconsistent and recreant to every principle of right as to be engaged inn war for a Government whose corn? erstone was slavery. Besides that, though Irishmen were revolutionists at home, they were conservatives in the United States, and that there was an in? finite difference between a war in the interest of oppression and one in favor of the oppressed. Adverting to the character of the Irish as soldiers the General was very enthu? siastic, saying that they played a promi? nent part in all the wars of the world for the last three centuries?now on one side, now on the other. "The Irish sol dier fights not so much for lucre as through the reckless love of adventure, and, moreover, with a chivalrous devotion to the cause he espouses for the time being. Clcburne. on our side, inherited the intrepidity of his race. On a field of battle he shone like a meteor on a cloudy sky! As a dashing military man he was all virtue; a single vice does not stain him as .1 warrior. His generosity and benevolence had no limits. The care which he took of the fortunes of his officers and soldiers, from the greatest to the least, was incessant. His integrity was proverbial, and his modesty was an equally conspicuous trait in his charac? ter. "Mcaghcr on your side, though not Clcburnc's equal in military genius, rivalled him in bravery and in the affec? tions of his soldiers. The gallant stand which his bohl brigade made on the heights of Fredcricksburg is well known. Never were men so brave. They enno? bled their race by their splendid gallan? try on that desperate occasion. Though totally routed they reaped harvests of glory. Their brilliant though hopeless assaults on our lines excited the hearty applause of my officers and soldiers, and Gen. Hill exclaimed, 'There are those green Hags again.' " Ills ESTIMATE 01" WEBSTER, CLAY A.N'D CALII0UX. icu as we lalked of the crttiscsof the war we drifted to the old statesmen. Gen. Lee referred dcspondingly to the nation's lack of .statesmen. Speaking of Webster he said: "1 never saw a more striking object than Webster in the Senate. The cflect of his fine figure and princely air, when speaking, was like that of a vivid Hash in the midst of darkness. What Paganini was in music that Webster was in oratory ; the one charmed Europe with one string, the other electrified mul? titudes with his eloquence. He once complained to me of the wrongs done him by the reporters, but in vain; the world would read whatever bore his hon? ored name, and the grub worms were ever ready to gratify the de.-irc by fragments or rather caricatures of bis mighty elo? quence. His speeches indicate the pow? ers of the great orator?they are lofty but not impassioned, correct but not llucnt. Henry Clay was every inch a pa? triot and an orator. I heard him on British aggression. Never certainly had I ever beheld so powerful an exhibition of natural oratory. The grace of the attitudes into which he threw his flexible figure, the striking gestures of his arms, and, above all, the lire which shot from his brilliant eyes, imparted an effect to the continually-charming accents of his voice of which the most accomplished actor might be proud. At one moment leaning forward when staling circum? stantially the grievances of which the nation complained, and then standing bolt upright, with clenched hands and a countenance distorted with passion, he poured out a tide of invectives. The effect on his audience was electric?one and all, they stood regarding him with sparkling eyes and trembling limbs, as though they wcrciistcning to the inspired vuicc of a prophet. Henry Clay was the greatest actor oil' the stage. Calboun was the favorite of the South. Morally, he is to be rated higher than either Web? ster or Clay. Hcwas keen in the obser? vation of whatever was minute. He was attracted by the lofty and ideal. Simi? larity, resemblance, pictures and analy? sis caught his eye. They were seized and secured and thrown down upon his page in gorgeous groups and splendid coloring. His logic was compressed and concealed; the train of reasoning he seemed to be pursuing might be clear and continuous to his own mind; all its facts logical Ir articulated from end to end; but it was like a stream of water, working its way underground, that showed itself now and then, or by a succession of openings and jets, the one apparently Jeep, the other light and sparkling. He was distinguished for his power of con Jcnsation. Metaphors, tropes and fig? ures of all kinds were never found in his speeches. His eloquence ami logic set mi fire. I heard him in one of his alter? cations with Clay. I was surprised that Mr. Calhoun's eloquence did not produce the least reply. It fell like a thunderbolt upon an iceberg, glanced along, hissed and was extinguished." Jefferson Davis, Vancey, lireckenridgc and Toombs, whose names hementioned, as well as a set of equally prominent men in the North, Gen. Lee characterized as "politicians," am! "they,' said he, "brought on the war." He went on to say : "I was opposed to tiie war at the outset. I wept when I heard of the bom? bardment ol' Fort Sum tcr! [sought re? tirement so that I might not hear or see any of the political leaders, the great end and aim of whose statesmanship was to precipitate the havoc that subsequently swept their fields and cities. But when Virginia, my native State,seceded, there was only one course for mo to pursue, namely, to follow licr fortunes." s T( iN i: \V A LI. JAt'KSO Jf. deferring to the great loss .sustained by the 1'onlederacy in the death of Stonewall Jackson, Gen. Lee remarked: ' In surprise marches and in the art of creating the resources of war, Jackson far surpassed the level of his age, and rose to a comparison with Hannibal and Napoleon, the two greatest commanders of ancient and modern times, In every relation of private and public life his character was perfect. The South has produced some able soldiers, and a lew in point of military talent were his equals, but it cannot and never could boast of one more beloved, not by per? sonal friends alone, but by every soldier and officer that served under him. His dispatches, even when announcing the grandest success, were brief statements id' facts unvarnished; many such passa? ges as this would occur: "'We are about to open the campaign. I have prayed earnestly to G.m| that lie willenable me to pass through it in His fear knowing no greater cart lily blessing than to have a conscience at ease in the discharge of duty." 1 left the presence of Den. Lcc im? pressed with the Consciousness that pride, h it red, revenge had no place in his noble nature, and that having lowered i;is colors and sheathed his sword, he WAS fully entitled to the re-pect and consideration of the gallant soldier to whom be surrendered. Il isneedlcss f?r mi- to - iv that, in my opinion, had he lived I lie would fully have upheld in the most j distinguished manner the union of the ; Slates, the reconciliation of all ckisscs, and the prosperity and happiness of the entire country. Foremost amongst the Confederates, and first in peace,Gen. Lec was not only a chivalrous gentleman, but he was eminently a Christian. In all his acts he was gifted with so rare a kindliness of demeanor, that he never made a quarrel I with any one. His brilliant, though brief experience as in? structor of the young men of the South, after the war closed, gave the strongest evidence of his loyalty and goodness of heart, and clearly presaged the glory which would have crowned his career had his life been spared. .V Southern Exile's Career. A few days ago, in an article on the Tehuantepcc route, wc related the inci? dent of llutler's seizure of the bank box and appropriation thereof as constitu? ting the whole property of the then sec? retary of State of the Confederate States. The contents consisted of Tehuantepcc bonds, and the Confederate secretary, when informed of Butler's exultation over his capture, remarked with a smile that with the loss of tho-o bonds he would be left without a dollar in the world. This confession was made at a dinner at which a dish of rusty bacon, cooked with cow-pcas and washed down with corn coffee, composed the whole mem:. A gentleman over fifty, who had for thirty years enjoyed and income of $20,000 per annum, was reduced to this condition in two years by his devotion to duty, to principle and to the demands of honor and patriotism. It was a grand sacrifice, worthy of conspicuous record among the many other similar examples of self-sacrifice and sincerity of convic? tion and duty on the part of those who have been so grossly maligned as inter? ested and designing politicians in the late war. In 1865 the impoverished Secretary of State of the late Confederacy, after the downfall of the Confederacy, and the dis? persion of its government, tramped on foot from Central Georgia, and escaped in an open boat to Nassau, with a single ten-dollar gold piece in his pocket, which lie /gave to the negro who rowed the small boat that so safely carried him be? yond the reach of the pursuing foe. In 1870, fourteen years afterward, this fugi? tive becomes the recognized head of an institution of all others the most exclu? sive and difficult in which to attain prominence and success?the bar of Eng? land, (hie gratifying proof of the reali? ty of this achievement is furnished by the fact, which we learn authentically, that ?Ir. J. P. Benjamin, Queen's coun? sel, recently purchased a very elegant residence in Paris, giving therefor 300, 000 francos cash. It is added that tin's large sum does not exceed one-half of ids yearly income from his practice in the highest courts of Great Britain. To these courts the large pressure upon his time and labor has compelled Mr. Ben? jamin to limit his practice. The briefs declined by him would double his in? come. But, always accustomed to do well and completely everything he un? dertook, he has been forced to reduce the amount of his labor within the compass of his wonderful capacity and industry. Wc doubt if these have ever been equall? ed by any other aspirant for distinction and success at the English or American bar. From gentlemen who have recent? ly called on him in London we learn that his labors arc incessantly prosecuted in his office for at least twelve hours out of the twenty-four, and that he still has a few hours to spare for enjoyment and re? creation with his friends, to whom he is always welcome as one of the most geni? al and vivacious of companions. So far from being affected by this intense labor his physique exhibtits a scarcely percep? tible change from that which he exhibi? ted when he was a leader at our bar, and at that of the United States Supreme Court, a Senator from Louisiana and the most brilliant and effective orator and debater in that body twenty odd years ago, or when Secretary of State of the Confede? rate States fourteen years ago. His hair still maintains its raven hue, unfrostcd by sixty-seven years of trial and labor; his flashing eyes have all their old brillian? cy, needing no aid of glasses to perform their work, and his handsome face wears still that winning smile which is rarely preserved by masculine countenances and is one of the happiest constituents of womanly beauty. The only perceptible change observable in his manner is in the greater gravity and precision of his utterance, and in the restraint of a vi? vacity which, in his middle age, might be properly described as boyish in its freedom and gayety.?Xew Orleans J><?i orraf. _ How to Increase F<;c Products.? If an increase of eggs be desired in the poultry yard, before large sums of money are expended in the purchase of ever? lasting layers, we would recommend the system of keeping no hens after the first, or at the most, their second year. Ear? ly pullets give the increase, and the only wonder is that people persist as they do in keeping up a stock of old hens, which lay one day and stop three, instead of laying " three days and stopping one. In some parts of Kugland it is the invariable rule to keep the pul? lets only one year. Feeding will do a great deal?a surprising work indeed? in the production of eggs; bin not when old hens arc concerned; they may put on fat. but they cannot put down eggs. The talc is told, their work is over; nothing remains to be done with them but to give them a smell of the kitchen fire, and the sooner they get that the bettor. Of course there arc some old fa? vorites whose lives ought to be spared as long as they can send forth their repre? sentatives. Judicious mating, by which we mean the advantage of a compara? tively youthful cockerel, may be the r'oans of even exhibition poultry making their appearance from the eggs of the good hen,and here wc have the excep? tion of the rule upon which wc insist. A Frequent hut Fatal Mistake. As tho Irishman, who had just landed and refused to pick up a dollar, thinking to go where they were "thicker.'' came to want, so those who fancy that a cough or cold will cure itself, and rcl'uso to use Dr. Picrcc's Golden Medical Discovery, often die with consumption. This great remedy is an unsurpassed pectoral and blood-purifier. 11 speedily cures a cough or cold, and consumption in its early staires readily yields to it. It has no known equal in controling ami curing all scrofulous tumors, ulcers, and eruptions. Some fancy heran** the DUeorerif is a*l rertisfil l>> cure ? wide viuge of disrate* /'.' cannot run an;/. Now. let us see. Sup? pose a surgeon be setting a limb, could he not truthfully say that his treatment would gradually overcome all faintness, nausea, dizziness, weakness, and lame? ness? Each symptom dijfrmd yet all dependent upon tho muh cause. By this process the Golden Medical Discov? ery cures many disease*, though all are dependent upon impoverished blood, and general debility. Bead tho People's 1 Common Sense Medical Advisor careful? ly. Dr. I'iercc's method of medication is I therein fully explained.