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BY E. B. MURRAY & GO._ _ANDERSON, S. C., THURSDAY, JUNE 12, 1879. VOL. X1Y-NO. 48. TUE GREAT DRAINAGE CASE. JL'I)GK MACKKT'8 DECISION. STATE OF SOUTH C&ROLINA, ) COUNTY OK ANDERSON, J In the Cou-i of Common Fleas. Oliver H. P. Fant and Joshua Jameson, County Commissioners of Anderson County, as Commissioners of Health and Drainage, Plaintiff?, against J. A. Keown, W.D. Evins, R. B. Bailey and Mary Warnock, Defendant.-Cam plaint on Assessment for Drainage. This cause carno on to bo heard before mo at tho February term, 1878, of the Court of Common Pleas of Anderson County. A separate cam plaint was filed as to each defendant, and the defendants filed their several answers, but, by agree ment of counsel, the four cases were heard together, and aro to bo determined os one. Tho plaintiffs allege that they "are County Commissioners of Anderson County, in said State, and as mich ore Commissioners of Health and Drainage for said County, by virtue of tho Act of tho 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, 1874. IL "That on the 19th day of July, 1875, nt Anderson, S. C., the defendants, with others, constituting moro than one-third of the landowners on Rocky River and Bcaverdom and tributaries, filed theil petition to tho plaintiffs, as Commission ers as aforesaid, in due form, praying, nmong other things, that they proceed to have such water courses ditched, and thc shoals blasted out, naming Majors' Shoal on Rocky River, and that said stream bc drained according to the true intent one] meaning of said statute, a copy of whicl petition is herewith filed OB part of thii complaint. III. "Thnt puraur nt to said petition tb? plaintiffs took charge of the Bame, anc granted said petition, and, among othei things, adjudged that tho blasting out and removing of tho shoal, known ai Enoch Majorer Shoal, and tho removal ot other obstructions between Baid shoal and the bridge above, in such places as then are no lands to bo benefited, bo done nnd tho espouses thereof be borne by thc landowners along said streams in tin ratio of the number of acres of bolton land each ono has along said streams U be benefited by drainage. IV. "That thereupon the plaintiffs con tractcd to have said work done, and en tercd into a contract with Joseph F Moore to blast out the rock obstriictioi at said Majors' Shoal, on said Rock] ' River, below defendants' lands, the os pense of which was twenty-three hun dred and four thirty-seventh-huudiedth dollars, ($2,804.37,) which being assessei on tho landowners according to the nu m ber of acres to be benefited, belongin to each, made the mun of one hundre and sisty-five forty-five-handredths do] lars ($165.45) due by the defendant, I S. Bailey, ou fifty-eight (581 acres c land, which amount was duly assesso againat him. V. "That tho said work of blasting lu been completed, and the plaintiffs ai now entitled to said assessment againi said defendant to pay their obligation fe said work. Wherefore, plaintiffs doman judgment," fte. Tue complaints filed as to the otb? i defendants herein contain the same alli g?tions as tho foregoing, except sa 1 "the number of acres to be benefited, and the amount assessed on their lane respectively : J. A. Keown being a sesscd for $126.30, on 44"r ucrea ; W. 1 Evins, $171.95, on 60\ ocrea ; and Mai Warnock, $262.55 on 92 acres. Tho petition of landowners referred in tho abovo cited complaint is as fe lows: "THE STATE OF SOOTH CAROLINA. "lb the County Commissioners of Anders* County, as Commissioners oj Health ai Drainage: "Tho undersigned, citizens of Ande son County, andi State aforesaid, bein nt least, one-third of the landowners i a distance of not less than five railed i and down Rocky River and Bcaverdai respectfully show unto your honorai body that the general health of o consi ?rable portion of the citizens of A ndi sou County in said Rocky River and L tlo Beaverdam is seriously affected by t sluggish and filthy condition of ss streams, and that there is a large seo of'bottom lands along said river a creek which are utterly worthless, o that the eame cannot bo remedied, in t opinion of yonr petitioners, without si Btreams are ditched from Enoch Maje Shoals, below the bridge, on R. Q. ? dcrson's land, to the upper line of L. Stringer, cn Little Beaverdam creek, i ing a distance of over five miles. Ye petitioners, therefore, pray that y< honorable body shall ascertain the ts stated above, and, if satisfactory, Bu havo an estimate made of the cost of & proposed drainage in said river, cn and tributary streams, and proceed have Buch water courses ditched, i shoals blasted out, and drained, acce ing to the true intent and meaning of statute, on such subject mode and r vided, approved March 14, 1874." Thia petition bears dr.te July li 1875. and the names of tho d?fendu herein are attached thereto : the del da ut Mary Warnock denies in her ans that she signed the said petition, i further denies that she authorized i person to sign her name thereto. It pears from the testimony that her m was attached to tho petition by her eh eon, J. D. Warnock, and, although ' acted in good faith in the premises, had no authority io sign ms moth nomo to the said petition, and she rofe to ratify his action therein. In tho vi however, that I have taken of the c I do not regard this point as material The defendants answering, seven deny that their properties havo been 1 cfitcd by the work done by the plaint alleging that no part of their tcspec lands has been drained thereby. 1 further allege that the Act of tho Gen Assembly, under which the said v was dane, and the assessment upon t property levied, is unconstitutional void. It appears from the documentary dence submitted on behalf of the pl tiffs, that after having duly consicl and determined to grant the pet! herein, they, on tho testimony of a < p?tent engineer, entered into a con with Joseph B. Moore, on tho - of-1875, based upon proposals milted by the said contractor, where was stipulated that he should ope channel for tho Rockv River, at the 1 and upper Majors' Shoals, and th should be paid therefor by the plait according to the numbor of cubic ] of excavation at tho following r Earth excavation per cubic yard cents; loose ruck excavation per < yard, 75 centa ; solid rock oxcavatio cubic yard, $1.87$ cents. The wid the excavation was "to be twelve fe bottom, with a slope of ?ir inche* zontal to twcl7o inches vertical in earth." The rock excavation to be without slope. I The excavation "to bo taken down to the full depth directed by the engineer, and with a uniform bottom." While thc work was in progress, and aller 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 th 3 contract. In this protest the defendants state that, "at tho time of filing the petition referred to, as is known to your body, a survey waa made of said stream for nine 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 tho sum of six hundred dollars, This work io still unfinished, and the aggregate assessments on the landowners m mg said stream and within the nino miles aforesaid amount to something over nineteen hundred ($1900) dollars. If the work, as originally contemplated, is to coat as much moro as this work alone bas 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 plaintiffs levied au assessment, to pay for the samo, on all lands within the area designated for drainage. Tho rtssossment was not ni ado upon the value, but upon tho acreage, at the rato of about two dol lars and eighty-five cents ($2.85) per acre, Before proceeding to decide tho issuet of law and of fact that arise upon UH pleadings, it is proper for me to observe that after the Defendants had given due notice of appeal from the judgment ol tho County Commiasionoro levying th? assessment in question, ' tho plaintiff herein filed their complaint in this ac lion. Tbs cause, however, was heard ai an appeal, pursuant to the Act constitu ting the County Commissioners tho Com missioners of Health and Drainage which provides (Section 2, Stat. Large. Vol. 15, p. 623) "that should any partj feel aggrieved by the decision or actiot of the County Commissioners in thi premises, it shall be lawful for him tc appeal to the Judge of tho Circuit at thi term of the Court next ensuing; whosi 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 Count; Commissioners in the premises, and th reasons given therefor, and tho ground of appeal from said judgment. The learned counsel on behalf of th defendants assail the constitutionality 0 tbs Act smpewcrin** thc Count- Com missioners to levy tue assessment com plained of on the following grounds : First : That it violates Bec. 23, Art. 1 of the State Constitution, which declare that "private property shall not be takei or applied for public UKO, or for the us of corporations, or for private use, with out tho consent of the owner, or a jut compensation being made therefor." Stcond: That it violates Sec. 37, Ar 1, of tho Constitution, which declare that "no subsidy, charte, impose tax c duties ohall be established, fixed, laid c levied, under any pretext whatsoeve without the consent of the people, c their representatives lawfully assembled. Third: That it violates Sec. ll, Art. : of tho Constitution, which declares thi "the right of trial by jury shall reniai inviolate." Fourth : That it violates Sec. 14, Ar 1, of the Constitution, which deolan that "no person shall bo arrested, imprii oned, despoiled or dispossessed of h propertytimmuuities or privileges, ni out of the protection of the law, exile or deprived of his life, liberty or est?t but by tho iudgment of his peers or tl law of land." F{fth: That it violates Sec. 19, Art. . of tue Constitution, which provides th in all cases there shall be the right 1 appeal to the State Courts from the d cisions of tho Board of County Comrni stoners, while this Act makes tho deci ion of tho Circuit Judge final. Sixth : That it violates Sec. 36, Art. of the Constitution, which declares th "all property subject to taxation shall 1 taxed in proportion to ita value." This case presents no feature that mak the first objection to the constitutional! of the Act at all pertinent. No priva property has been taken either for pub! uso, or for the uso of a corporation, for private UBO. The clause of the Constitution cited support of this objection is a restricti upon the State government in tho ex< eise of tho right of eminent domain, the interest of the citizen it imposes limitation upon tho sovereignty of t State. The right of eminent domain is tl 1 supreme right of property, inherent the Bovereignty by which the yrivi property of the citizen, acquired une its protection, may be taken or control ' for the benefit cf the public against 1 will of its owner. Pollards Lessee VB. Hogan, 3 Ho wi 228. In the exercise of this right tho St compels the citizen to surrender son thing beyond his due proportion for t public benefit, for which neis entitled claim special compensation ; while in 1 exercise of thc power of taxation, < State requires tho citizen to contnb only hi? due proportion in money for support of ita government at a rate fii by law, which must be uniform and cording to value. In the latter case citizen receives no special r?mun?r?t! hut shares only in the general benefit fleeted back upon the community by just application of the wholo proco derived from taxation. To exercise: righ 01 eminent domain there moat b taking of property from ita owner by power of the State. To constitute a t mg the owner must bo dispossessed of ?iroperty or be deprived in como form ts use, to. which he is solely cntit Until he is disturbed in the possess] or freo use and enjoyment of bis pro] ty, there is no taking, and ho has no ri of action, and is not entitled to corni aation under this clause of tho Const tion. . Gould vs. Hudson River R. R. Cn., Barb. 616; Radcliff vs. Mayor, &c Brooklyn, 4 N. Y. ; Fuller vs. Eddi ll Ricn. Law 239; Cooley's Con. L 641 et. seq. Tho defendants herein do not c allege that they have been dispoaaeate any portion of their property or that injury has been inflicted thereon. 1 do not complain that they have been jured, but only deny ths.? they have 1 "benefited. In support of tho second objectic was urged, arguendo, that Section Article 1. of the Constitution above < forbids tho Legislature from dolcgr to the'County Commissioners tho po of asAtvsment and taxation vesta them by this Act. It docs not ap that this Section of the Constitution intended to inhibit the Legislature delegating its power of taxation li manner prescribed in the Act under federation. If thc County Comsiiaeh had levied the assessment complained of without au Act of the Legislature au* thorning them so to do, then this clause of the Constitution might be successfully invoked against their action in tho prem ises, as "without the consent of the peo ple or their representatives lawfully as sembled." In this case, however, tho tax has been levied by sp?cial legislative authority. Bo far from forbidding by implication tho delegation of the power of taxation by the Legislature to public corporations, the Constitution in express terms authorizes the delegation of Buch power, for it declares (Section 8, Article 9,) that "tho corporate authorities of counties, townships, school districts, cities, townB and villages may bo vested with power to assess and collect '* :*cs for corporate purposes." Tho third objection docs not appear to bo well taken. ' Tho right of trial by jury is not involved in the case at bar. It is a Beuiod rule of construction applicable alike to constitutions and statutes, that whenever a common law term in used in a statute, without any express statutory definition, wo aro remitted to the com mon 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 thc life and liberty of the citizen-which every per son accused of crime in the Courts hos of being tried by a jury of his peers, con sisting of twelve good and true men, law ? fully drawn and empanelled and duly sworn. It is the mode of trial prescribed in criminal accusations, and the term as used in tho Constitution relates to the trial of persons accused of criminal of fences. To hold that every party to a civil action is entitled under the Consti tution to have tho issues of fact arising upon the pleadings determined by a jury, would be to abolish our whole system of ecmity jurisprudence, which is moro an cient oven than the right of trial by jury. But whatever may be the rights of par ties in other civil actions, the defendants herein having voluntarily set this statute iu motion, and invoked the judgment of tho Court under its provisions, are clearly estopped from urging this objection. Whero a constitutional provision is de signed for the protection of tho property rights of an individual, it is competent for him to waive tho protection ana con sent to such action aB would bo invalid if taken against his will. (Cooley Con Lim. 181 ; Baker vs. Braman, 6 Hill, 47.' Tho reasons given for overruling thi third objection apply equally to tin fourth, which is urged upon thc sam< grounds. The fifth objection is, in my judgment as untenable os those which precede it The objection that the Act ia unconstitu tiona'. becauBO it provides that the decis ion of the Circuit Judge shall bc final "~__i r_xi_:-1-_. _r AU .'i. t.j.j'v-n. .?v.l.* IfU? JUUgUiVUV \J I VIII County Commissioners, cannot provai when urged by n partv who has himsell by own voluntary*action, Bought such tri bunal. He must be deemed by his act to have waived every such constitutione objection. This has long since been set tied law in this State. In the case o People vs. Murray (5 Hill, 4G8,) it wa held that- where parties were authorize by statute to erect a dam across a rivei Erovided that they should first execute ond to the people conditioned to pa such damages as each and every perso might sustain in consequence of ehe ere? tion of the dam, the damages to be ai sassed by a Justice of the Peace, in a action on the bond to recover those dan ages, the party erecting the dam wasp? eluded by acting under tho statute i'roi objecting to its validity, and insisting o Iiis right tc a common law trial by jun (See also L*;e vs. Tillotson, 24 Wende' 339.) I shall now proceed to consider th sixth and last objection urged against th constitutionality of the Act, on tb ground that it authorizes a system of ta: ation, other than ad valorem^ contrary t tho provision of the Constitution, thi "all property subject to taxation ahall I taxed in proportion to its value/' provision similar to this has been inco porated into the Constitution of evei American State, and it has received iud cial exposition in a loug line of authoi tative decision:!. It may be now safe held that the constitutional requiromer that property shall be taxed in propo tion to its value, relates only to tho ge end tax levied to defray tho ordinn charges of tho State government, ai does no? prohibit the levying of an i Bcssment or tax for local improverr.cn based upon the special benefit conferr upon the owner of the property, the val of which is enhanced by Buch improv ment. Indeed, thia is in effect a tax ? cording to value, for it is presumed tl: the property benefited shall alone taxed. Says that eminent jurist, IL Justice Cooley, in his admirable work Constitutional Limitations, (pp. 497-49 "it would Becm that the constitutior requirements that taxation upon propi ty shall be according to value do not i eludo every species of taxation. Asse ment J for the opening, making, impr< ing or repairing of streets, the drain: of swamps, andi the like local works, ht been generally made upon property w some reference to the supposed bene which tho property would receive the from. Instead, therefore, of making i assessment include all tue property the municipal organization in which I improvement is made, a new and spc( taxing district is created, whose boui are confined to tho limits within wh Eroperty receives a special and pecul encfit in consequence of the impro ment." The Constitution of Michigan provi that "all assessments shall be on propc at its cash value. Tho Supreme Cour that State, however, held that a local t levied in the city of Detroit to meet expense of having a public street, t.hniicrh. levied not proportion to vs but according to an arbitrary seale supposed benefit, was not invalid un the constitutional provision. (Willii VB. Detroit, 2 Mich. 580.) In the case of Weeks vs. Milwau 10 Wisconsin 242, the Court held t these local burdens are generally imp< under the name of assessments ?nstcac tax?e, and that therefore they are covered by the general provision in constitution of tho State on tho Bul of taxation. Hence, an ox em pt ?or. church nrnrvnrln ?TCI? t^X" '.!'.!" ?;?"? 1 hold not to preclude its being assessei improving streets in front of it. (Lockwood vs. St Louis, 24 Miss 20; Le Fever vs. Detroit, 2 Mich 586.) Tho general principle laid down in above cited cases is also strongly sup] wi in Sharp vs. Spier, 4 Hill 76 ; Cruikshanks vs. City Council, 1 Met MO. The following case is cited as nearl all fours with that under considera A small suburban community was ii porated by the Legislature of Kent in tho vicinity of a city by tho tit "Tho District of Highlands." The of incorporation authorized its tru "to grade and pavo, or Macadamize, rock or gravel any public road pa through or into said district, withir limits thereof, with tho assent of thirds of tho landowners through v hinds any such road may pass, a levy sp?cial taxes on each real estate to pay for such grading aud paving." It was bela that tho Act was constitu tional, and that "the levy of a tax on the petition of tho requisite number of land owners on the land abutting the roads improved, rated by tho number of acres of each owner's cruet, could not bo ad judged unconstitutional for unjust ine quality." (Malchus vs. Highlands, 4 Bush. 647.) 7 bo Constitution of California provides that "all property in thc t?tate Bhall be taxed in proportion to its value." The Supreme Court of that State held that this clause referred to the general or or dinary taxation to defray tho ordinary expenses of the State, and ita subordinate local governments, and not to assessments for local improvements; that assessments for such purposes need not belaid on tho ad valorem principle, but the Legislature is at liberty to adopt a different basis of apportionment-such as frontage, super ficial contents, or benefits received. (Em ery vs. Oas Company, 28th Cal. 845 ; See Dillon on Munie. Cor. Vol. 2, Sections 698-603 ; and Bui roughs on tho Power of Taxrtion 125.) The defence upon thc merits under the Statute io based upon the ground that tho Defendants^ have not been benefited by the work done, and aro therefore not le gally bound to pay the assessment levied on their property to defray the coBt of said work. Upon this question of fact ton (10) witnesses were examined at the hearing before rae. Maj. T. B. Lee, the engineer in charge of the work, testified that the area of drainage effected by tho excava tion at the Shoals did not extend more than a mile above the Shoals. It was in proof that tho lands of tho Defendants that aro assessed to pay the cost of such excavation aro situated from four (4) to six (6) miles abovo tho Shoals. Mr, Moore, the contractor, testified to thc runic effect as Major Lee, end both con curred in tho statement that neither ol tho Defendants had derived any benefit from the work done. Tho Plaintiff Fant, Chairman of the Board of County Com missioners, testified in tho causo, and stated that ho "could not say that thc Defendants had received any benefit' from tho work which they are assessed tc pay for. Not ouo witness testified that the Do fendants had been benefited thereby while, on tho contrary, nine out of tin ten witnesses testified that neither of th? Defendants had received any benefi whatever from this ill-judged excavation effected at a cost of $2,304. The Defendants petitioned under tin Act to have the lands lying along tin waters of Rocky River and Beaver Dan Creek "drained" for tho reasons set fortl in their petition. Tho benefit to be con ferred by tho proposed improvement wa .i.- J--:-_'e .i._ i_i . ?jtLti AI M..'j uiimui^u vi mu mm j ,r limn tiiu mc designated in tho said petition. Th Commissioners did not even Btipulat with the Contractor that the drninag prayed for should bo effected by tho prc posed excavation. It was simply a con tract to excavate an indeterminate nura ber of cubic yards of earth and rocl Tho depth of tho excavation was nc stipulated, but was left to tho discretio of the engineer, who supervised tho wor on behalf of the Commissioners. I ai constrained to find, as a nm? 1er of fae that tho Defendants herein have not bec benefited by tho work dono for whic their property has been assessed. The Defendants having received r benefit from the work done, aro they 1 gally liable to assessment to pay the co of the same ? On this point the learnt counsel on behalf of the Commissione insists arguendo that they, in effect, act< as the agents of the Defendants in tl prosecution of this work, being mov< and authorized thereto by Defendant petition, and that tho Defendants therel contracted with these Plaintiffs to pt the assessments necessary to defray ti cost of said work, the same having bet executed in pursuance of their said pel tion. It does not appear to me that tb position is tenable. Thc filing cf t! petition was simply a part of the machi cry of tho Act. The condition precede on which tho County Commissioners we "empowered to make contrante for sm drainage." "What tho terms and cone tions of such contracts should be, whether they should contract ot all, w a matter confided by the statute to t judgment of the County Commissione That judgment thc Defendants had power to control. While expressing t "opinion" in their petition that the bia ing out of the lower and upper Mojo Shoals would effect the desired draina; they remit the whole matter to tho juc ment of the County Commissione This clearly appears from tho dosi paragraph of their petition, which is the following words : "Your petitioners therefore pray tl your honorable body shall ascertain facts stated above, and, if satisfacto shall have an estimate made of tho c of said proposed drainage in said riv creek and tributary streams, and proc< to have such water courses ditched r shoals blasted out and drained, ?ccord to the true intent and meaning of statute on such subject mode and p vided." I But tho Commissioners had no "c mato made of tho proposed draiuag I for they simply entered into a conti to have an excavation m ad o in Maj Shoals, for which they were to pa; speciGc sum per cubic yard, tho num of cubic yards being left undctcrmir. Tho cost of tho work was therefore unknown quantity at the date of contract for excavating. The Defend? cannot in any legal sense bo held to h entered into a contract with tho Corni .sinners to pay for the proposed w without regard to its beneficial result It is of tlie essence of a contract i it bhall, for a legal consideration. I ul! ino parties thereto. Its obligatio mutual. It is an essential incident every contract that the party who ju complains of a breach of ita terms s have a right of action to enforce it. tho Defendants could not, under statute, have enforced a demand that Commissioners should grant their i tion, or compelled them by any I proceeding to execute the prop drainage after they had decided to g tho petition, and bad informed tho fendants that they had rendered a fe able 'adgmcnt thereon? The only M Tty ttat?tho Defendants could incu their petition was fixed by tho sta tho beneficial provisions of which thus invoked. It was a liability t assessment for drainage, to be imf upon their property benefited by same. This is the manifest mealing an tent of the statute. Its language follows : "That in cases whero one-' of- tho landowners upon any water a for a distance of not less titan five i up and down the stream in said Cc shall desire to drain the lands upon water course, the County Commissi shall, upon petition, personal service the testimony of ono or moro comp engineers, be empowered to raafco tracts for such drainage, and imp?t proper assessment upon the various crtiet bent?ied by the same." (Seel S. L. p. 623.) I lt will thus bo seen by tho very of tho Act that the Defendants were not liable aa petitioners, but aa beneficiaries. Tho Commissioners have themselves as- . serted this view by-imposing the assess ment also upon the property of norsons who wero not petitioners. Tho liability incurred must be measured by the scala of benefit received. This position is very \ strongly reinforced by tho decision of tho i Supremo Court of Michigan, in the case of Thomas ot al. vs. Cain, reported in tho Law and Equity Reporter of March 28, i 1877, aud cited and ably commented on : by one of the learned counsel (Jomes L. ' Orr, Esq.,) cn behalf of tho Defendants. It iu further urged on behalf of tho Commissioners, that 'he Defendants, by ; their second petition, pretesting against the further progress of the work at Majors' Shoals, themselves prevented tho benefit that their property would have received from the further prosecution of i the said work. This statement docs not , appear lo be warranted by tho evidence. In the record of tho case, submitted by ? tho Plaintiffs, I fiud tho following com- , munication, addressed to tho Chairman of the Board of County Commissioners, announcing thc cntiro completion of the j work under tbe contract, tho excavation j having previously been finished nt tho lower shoal. As shown by tho date of thin communication, tho work nt the Shoulu , was completed before the second petition ; or protest v. aa filed : < "ANDERSON. CO., Sept. 23d, 187G. , "Hon. O. H. P.' Fant, Chairman County ] Commissioners : , "SIR-Mr. Moore has finished his work | at tho 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: t 733 cubic yds. earth excavation. \ 023 cubic yds. solid rock excavation , Total,1G56 cubic yds. excavatiou. I Respectfully, < Taos. B. LEE, Engr." < I am unable to perceive that the sec- < oud petition affected in any degree the < action of tho Commissioners, uuder uny j contract entered into by them. , Tho petitioners might well have been , alarmed nt tho further prosecution of a j scheme of drainage, signalized in its iui- { tial stages Ly tho explosion of seventy- j two barrels of gunpowder without any ( beneficial result, and at a cost of moro j than two thousand dollars, which, accord- , ing to tho testimony of the Supervising j Engineer, was afr tho rate of ono hundred , and forty-four dollars ($144) an inch for < evory inch that tho River was lowered i between the two Shoals. All their hopes ? of receiving any benefit from the plan of , drainage adopted had been "blown into , thin air," and it was their right and duty, , as an act of self-preservation and for tho ; public good, to file their protest against , its further prosecution. Tlic?? ?o'Ur iliaca, it ia aw'ied by tho , learned counsel for the plaintiffs, aro iu- { tended to toSt tho questions involved, , there being twenty-two othors of tho , same class still awaiting determination. ] I have given io them full and earnest ; consideration, and have arrived at tho conclusion in the light of the law and the , evidence, that the proporty of tho defon- , dants is not liable for any assessment im- , posed thereon to pay tho costs of any , work done under the contract for drain- , age entered into as alleged, by the Coun ty Commissioners of Anderson County. . acting as Commissioners of Health arid Drain ago. It is therefore ordered, adjudged and decreed, that the appeal of tho defen dants, appellants herein, be sustained, ? and tho judgment of tho enid Board of County Commissioners, lo vying an assess ment upon their said several properties for drainage, bo, and the sam?is hereby, reversed, and that the defendants, appel lants ana tho respondents herein, do each p&y their own costs. T. J. MACKEY, Circuit Judge. August IGth, 1879. : ..? HOME MADE FERTILIZER.-Judge R. | F. Moore, one of ino most successful I farmers of our county, hands UR the fol- i lowing formula for composting homo made fertitizer, which, tho Judge claims, in as good as any of the standard com mercial fertilizers in the market, and cheap becauso it cods nothing except a little labor. The formula for ono ton of tho fertili zer is as follows : One thousand pounds of rich loam earth (procured from the fence corners, or wash places, or surface dirt from the woods,) and fifteen bushels of cotton seeds ; put into the rtables of a horse or cow, cover with a sufficient amount of leaves or straw to prevent tho stall from becoming muddy or dirty. Let it bo tramped twenty or thirty days, when it may be put in a pen ?\nd another supply in the stable. By this method, Judge Mooro says that a ton of fertl.izer for each horse or cow can be made, equal to the best fer tilizer offered in the market, which is dis tributed in the same way, and in tho same quantities os guano. All who know Judge Mooro, know that ho has succeeded zs a farmer and he is no cas tle builder. Wo hope our farmers will give this manure a fair test, and savo themselves the thousands of dollars paid to fertilizer manufacturers.-Georgia Democrat. A RELIC OF THE MOUND BUILDERS. While excavating for a spring for reun ion purposes to-day on the landa of Rev. W. H. McFarland, near this place, John S. Gallup came in contact with what ap peared to bo a smooth cut atone and dug down to the foot of the third Btep, wbero be found a basin made in the solid rock that will contain fifty barrels or moro of water. It was cleaned out, and a stream is pouring into it from tho crevico of tho rock at the rate of 16,000 gallons a day. Ther? io ?o written account of iheso hewn steps and basin, and tho oldest citizen had no knowledge of their exis tence. This was probably an important watering place during tho mound build ers' period. At any rate it is a BU' &t for investigation by tho antiquarians. It is regarded as a great curiosity and won derful discovery, and is the theme of all conversation on the streets to-night. Cincinnati Commercial. - A Georgia negro girl who went to j Liberia in 1877 has returned. Sbo does not give a very cheerful account of her experiences- in that free republic.-' Among other things, she says that "the natives season everything very highly with pepper, and when a child is born among them they stuff its ir_uth with red pepper and gruel, and lay it in the sun for an hour. They say it will make it strong and healthy." 'Also she says, | "tho natives are very hard on onr peoplo whon they commit crime." She men tions the case of ene Reuben Cayho, who stole something from one of them, and they caught him, tied a big 'rock around his neck and threw him in tho river. _.:. I ..._ OUR DAILY FOOD-Adulteratiou pre vails in our daily food. Food is a most important necessity, and it should be wholesome and nutritious. If ?ll articles that are used were as pure and healthful as Dr. Price's Cream Bakiner Powder, ??? I should escapo many of tho ills of life. AFTER APPOMATTOX. c An Interesting- Talk with Gen. II. ?. Lee. t When, tho tinny of Qen. Sherman waa - making its famous homeward march to < Washington it rested for a few days in < the fallen Capital of tho fallen Coufedcr- < ?cy. While thoro a Federal champlain i visited Gen. Robert E. Lee, and had an < interesting conversation with him, and I this conversation now sccs print, for tho i first time, in thc Cincinnati Commercial. < The writer says : Accompanied by Gen. Geary, after? i wards Governor Geary, of Pennsylvania, ' aud provided with a letter from Gen. Iinzcn, who knew Gen. Leo at West 1 1'oint, I was admitted to tho presence of < tho illustrious commander. Gen. Leo > was erect, and handsome. His easy 1 smile and simplicity of manner did not 1 ?peak of disaster. He was very positive ? in his convictions, hut in our long talk 1 always weighed every sentence. Presi- ' dont Lincoln's assassination was upper- 1 moat in all our minds. Qon. Leo said : ' "Tho death of that eminent citizen has * filled me with horror. If thoro were blemishes in his character, his life oz- 1 hibited some splendid and rare virtues. Ile was ono of tho most extraordinary 1 mon that over lived in our country. 1 His heart was grand and largo. Ho was * constitutionally pensive. Hud ho been 1 mared, tho South would bo treated with [lonornblo propriety and with a gallant generosity ; that good-will and friendli- 1 ness would h?vo marked his treatment ,)f tho people of the South." Qen. Leo now adverted to tho character of Grant, of whom ho spoke in tho most friendly nords and terms. Ho ascribed to him tho possession of tho noblest attributes sf American manhood, that ho possessed til tho requisites and talents fur tho or ganization of armies. "I wish," snid Glen. Lee, "to do simple justice to Cen. Girant, when I say that his treatment of tho Army of Southern Virginia is with out a parallel in tho history of tho civil ized world. When my poor soldiers, iv i th famished faces, had neither food nor raiment, it was then that (ion. Grant immediately issued tho humane order '.hat forty thousnnd rations should bo furnished to tho impoverished troops. And that was not all of his magnanimi ty. I was giving directions to ono of my statTofficers when making out tho list of things to bo surrendered, to in clude tho horses. At that moment Gen. Girant, who scorned to bo paying no alton '.? in to what was transpiring, quickly 3aid : "No, no, Gen. Leo, not a horse not one-keep thom all. Your people will need them for tho spring crops I" It ivas a scene never to bo forgotten to watch LCO'B 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 tho greatest af tho Federal generals. "Indeed, Bir, I have no hesitation in saying Gon. Grant. Both as a gentleman ana au organizer of victorious war, Gon. Grant hath r-xcelled ill your most noted soldiers. Ho has exhibited moro real groatness of mind, moro consummate prudence from the outset and more heroic bravery tban any ono on your side." The conversation turned te Gen. Sherman, of whom bo Fipoko as follows: "As a strategist and commnnder of men Sherman boa dis played the highest order of military ge nius. Throughout his recent campaign, when ho baa to pass through an un known country, cross rivers, support his troops, &c., ho certainly exhibited a sin gleness of purposo, a fertility of rescourco which wins him n high placo among tho famous soldiers of history. He seems to bo cool without apathy, cautions without being dilatory, patient without being dispirited, personally brave, but never rash. Judged by Napoleon's test, 'Who did all that?' ho is, in my opinion, among tho most successful of the Federal ofne-rs who have played a prom i nen " pnrt in tho history of tha w?r. In the course of conversation ho spoko of Sheri dan as a most brilliant and magnetic commander. WHY TUE CONFEDERACY PROVED A FAILURE. To the question : "What was tho cauBO of tho failure of thc South?" tho Gcueral smilingly said : "I am not a very good extemporane ous speaker, nor am la very good oxtera p ;ranejus answerer of questions. The most conspicuous reason was tho superi ority in men and in resources of the North. Tho United States had nil the advantages-a land of boundless wealth, cities sccuro from tho horrors of civil war, and a constant strep m of emigrants to fill up the depleted ranks of your ar mies. Tho numbers against us were enormous. The population of the South was never, moro than seven millions, With fivo to ona against them th? Southerners performed n mighty work and mado a gigantic step towards their in dependence. "Another cause lay in tho vanity ol many of our people. " Thc first battles ol the war being favorable te us, tho Soutr. was wild with confidence and the whoh country was thrown into a ferment of ex citement. It was doubtful, indeed whether one in a thousand of our peoph supposed fora moment that there wai any doubt of an immcdiato and a snc ces s ful termination of thc struggle. Thi publie meetings were in every eas, too enthusiastic. Tho people wero car ried away by acclamation. The cheer lng proved to bo our folly. This execs of confidence lost us Now Orleans anc many other cities. "A much more serious difficulty arosi from tho mistaken view of the Souther cause by the Philanthropists of tho Ol World. They wero led to believe ths v?? Trcre fi?ut?ug for ?lie perpetuity c slavery, and that the establishment _ c the Confederacy would be tho reopenin of tho African ?lave trade. This opinio shook the faith of great and good me in tho humanity and righteousness of tt South. The conscript law was nnothi effective check to our success. Instes of being a benefit, it was a curse badgo of disgrace The rich were fi vorcd ; falsehood and dissimulation wei its natural results, suspicion and mistru arose where confidence and reliant should have prevailed. The attitude pr served by Mr. j?avisand other leaders i opposition to the arming of tho negro? a policy which I always believed to 1 expedient, proved most disastrous. Tl wide sprern poverty of the country, a companied by tho just conviction that 8 further offerts wore hopeless-these ai other forcea worked to ono final r suit, the failure of the Confederacy." TUB FOREIGN ELEMENTO IN BOTH A MIES. Our next topic of conversation was t! foreign element in both armies. Spca ing of the Irish, ho declared with cc siderablo feeling that tho "South cou not reconcile with their notions of co sistenoy and honor, how Northern Iris men, who wera so desperately and v lenity opposed to tho'thraldom of B tain-the wrongs of Ireland hoing mt ?ui to-bit by the side of tho enorme iijurica which bad boen inflicted by t North cn tho Sooth-how liberty-?ovi Irishmen could fight against the Soul irners contending for independence ant) quality of rights." I suggested that the oldicrd of Irish origin lu our .arrales ver? equally bewildered to know how rishmen who for centuries bad gallantly untended for ibo freedom of toe-Celts ould be so inconsistent and recreant to very principle of right as to be engaged n a war for a Govornment whose corn ustone was slavery. Besides that, hough Irishmen were revolutionists al tome, they were conservatives in thc Jnited Slates, and that there was an ia inito difference between a war In th? ntereat of oppression and one in favor o: he oppressed. Adverting to the character of the Irist s soldiers the General was very enthu iastio, saying that they played a promi lout part in all the wara of tho weld foi ho last three centuries-now cn on? ide, now on the other. "The Irish sol lier fights not BO much for lucro ai brough the reckless love of adventure nd, moreover, with a chivalrousdevotioi o the cause ho espouses for the tum icing. Cleburne, on our side, in'aoritci ho intrepidity of his race. On a field o tattle ho shone like a meteor on a cloud] ky I As a .lashing military man hi ros all vi.-tue; a Bingle vice does no' tain him ns a warrior. His generosity nd benevolence bad no limits. Tbi aro which he took of the fortunes of bi Akora and soldiers, from the greatest ic he least, was incessant. His integrity ras proverbial, and his modesty waa ai qually conspicuous trait in his charac 3r. "Meagbcr on your side, though no ?eburno's equal in military genius ivallod him in bravery and in tho afibc ions of bin soldier.'!. Tho'gallant stani mich bis bold brigade made on th' eights of Frede vi cksburg is well knowe fever were men ?a brave. They enno led their race by their splendid galten ry on that desperato occasion. Thougl itally routed thoy reaped harvests o lory. Their brilliant though hopete-s ssaults on our lines excited the heart; pplauso of my officers and soldiers, ail! len. Hill exclaimed, 'Thc.j aro thoa reen flags again.' " 118 ESTIMATE OF WEBSTER, CLAY AK: CALHOUN. Then as wo talked of tho causes of lb rar we drifted to tho old statesmen. Get .ec referred despendingly to tho nation' itck of statesmen. Speaking of Wcbatc io said: "I never saw a moro strikin bject than Webster in the Senate. Th fleet of his fine figure and princely al rhen speaking, was liko that of a vivi lash in tho midst of darkness. Win 'uganini was in music that Wehste JOB ia oratory ; tho oho charmed Euro j rith one string, the other electrified mu itudes with his eloquence. He ont omplnincd to me of the wrongs doc im hu iha rannrlnn J. ! j. - ?J rorid would read whatever boro bis hoi red name, and thc grub worms were evi cady to gratify the desire by frogmen r rather caricatures of his mighty eh uonco. His speeches indicate tho pot rs of the great orator-they aro lof) ut not impassioned, correct but n ucnt. Henry Clay was every inch a pj riot and an orator. I heard bim c Iritish aggression. Npvor certainly ht ever beheld so powerful an exhibitic f natural oratory. The grace of tl ttitudes Into which he threw his fiexib igure, the striking gestures of his arru nd, above all, the nre which chut fro iis brilliant eyes, imparted an effect bo continually-charming accents of b nico of which tho most accomplish ctor might be proud. At one mom? caning forward when Btating circu? tantially the grievan?^? o! which tl iticion complained, a.. i then ?.tandi loll upright, with clenched hands and ountenance distorted with passion, toured out a tide of invectives. T Abet on his audience was electric-o ad all, they stood regarding him wi Earkling eyes and trembling Umba, ough they were listening to the inspii oico of a prophet. Heury Clay waa t reaiest actor on the stage. Calho ?ras the favorite of the South. Moral te ia to be rated higher than either Wt ter or Clay. He was seen Sn thc obs ation of whatever was minute. Ho v. .ttractcd by the lofty and ideal. Sit arity, resemblance, pictures andana ?B caught his eye. They were sell nd secured and thrown down upon ! ?age in gorgeous groups and Bplem oloripg. His logic was compressed e oncraled; tho train of reasoning eemcd to be pursuing might be cl nd continuous to bis own mind; all acts logically articulated from end to ci mt it wes like a stream of water, work ts way under ground, that showed i tr tow aud then,' or by a succession ipCnings and jets, the one atiparen leep, the other light and sparkling, ras distinguished for his power of c lensatlon. Metaphors, tropes and ires of all kinds were never found In pooches. His eloquence, and logic m fire. I beard him in one of his alt ations with Clay. I was ?nrnrlsed t Jr. Calhoun's eloquence did not prod be least reply. It fell liko a thunder! ipon an iceberg, glanced along, his Lud was extinguished." Jefferson Davis, Yancey, Breckenri ind Toomba, whose names homentloi us well as a set of equally promit nen in the North, Gen. Leo character is "politicians," and "thoy," said 'brought on the war." He went OE ay : I was opposed tc .the war at lutset. I wept when I beard of the b lardmcnt of Fort Sumter I I sough! ircmeut so that I might not hear or inyof the political loaders, the great ind aim of whoso statesmanship wa irecipitate the havoc that subseque wept their fields and cities. Bat w Virginia, my nativo State, seceded, t vas only one course for roe to pm Kiniu?y, to follow her fortunes." STONEWALL JACKSON. Referring to the great loss suata jy the Confederacy in the dcatl Stonewall Jackson, Geo. Lee remar "In surprise marches and in the a creating the resources of war, Jae far surpassed tho level of his age, rose to a comparison with Hannibal Napoleon, the two greatest commet ancient and modern times. In ? relation of private and public lifo mareeter was perfect. Tho South produced bo uro aldo acibere, an few in point of military talent war* equals, but it cannot ": .id never < Joost of one more beloved, not by ional friends alone, but by every sc ind officer that served under him. lispatchea, even when announcing grandest success, were brief staten af facts unvarnished ; many such j: jes as this would occur: " 'Wo are about to open the cami I have prayed earnestly to God tha will enable me to.pass through it ii fear knowing no greater earthly bk than to have a.conscience nt casi 1 discharge of duty." I left tho presence of Gen. Let pressed with the consciousness that] hatred, revengo had no place ii noble nature, and that having lo hts colors and sheathed hts s be was fully en titled to tho res poe consideration of^ tho gallant sold whom ho surrendered, lt is needle mo to say that, in my opinion, had he be would fully have uphe.d \a tho most distinguished manner tue union of the States, the r?conciliation of all class?e, and the prosperity and happiness of the entire country. Foremost amongst the Con fedora te-f, and first in peace, Gea. Leo iras not only ? chivalrous gentleman, bot he wrs eminently a Christian. In all ' his acts he was gifted.with BO rare a kindliness of demeanor, that he never made a quarrell with . any on<?. His brilliant, though brief experience as in structcr of the young mon of the Sooth, after the war closed, gave the strongest evidence of his loyalty and ?odness of heart, and clearly presage.? the glory which would har? crowned his career bud his life been spared. A. Southern Exile's Career. A few days agi, in an article on the Tehunntepec route, we related the inci dent of Butler's seizure of the barde br?:, end appropriation thereof as constitu ting tho whole property of the then sec retary of State of tho Confederate States. Th? contents consisted of Tehunntepec bonds, ' and the Confederate secretary, when informed Of Butler's exultation over his capture, remarked with a smile that with the loss of those bonds ho would bo left without a dollar in the world. This confession was made nt a dinner at which a dish of rusty bacon, cooked with cow-peas and washed down with corn coffee, composed- the whole menu. A rentleman over fifty, who had for thirty years enjoyed and income of $20,000 per annum, was reduced to thia condition in two years by his devotion to duty, to principle and to tho demands of honor and patriotism. It was a grand sacrifice, worthy of conspicuous record among tho many other similar examples of Boli-sacrifico and sincerity of convic tion and duty on the; part ot those who have been so grossly maligned aa inter ested and designing politicians in tho late war. j In 1605 the impoverished Secretary of ' State of tho late Confederacy, after the downfall of the Confederacy, and the diu ?tendon of its government, tramped on bot from Central Georgia, and escaped in an open boat to Nassau, with a single ten-dollar gold piece in his pocket,'which ho J gave to the negro who rowed tho small boat that so safely, carri ed bira be-. yond tho roach of tho pursuing foe. In 1870. fourteen years afterward, this fugi tivo becomes the recognized h?i.? of an ios?ia?on of aii others the most exclu sive and difficult in .which to attain Ftromnencr, and success-the bar of Eng and. Ono gratifying proof of tho reali ty of this nebievement ia furnished by the fact, which we learn authentically, that Mr. J. P. Benjamin, QuceA'o conn sol, recently purchased a very .-elegant, residence in Paris, giving therefor ,800,* 000 frances casu, lt ls added that thia largo sum does not exceed one-half of his yearly income from his practice in tho highest courts of .Great Britain.. To these courts tho 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. Bat, always accustomed to do well and completely, everything he un dertook, he has been forced to reduce the amount of his labor within tho. compass of bis wonderful capacity* and industry. We doubt if these have ever been equall ed by any other aspirant for distinction and success nt the English or American bar. From gentlemen who hayo recent ly called on him in London wo learnihht ?' his labors ?re incessantly prosecuted in bis office for at least twelve bonis out of tba twenty-four, and. that he still hos a few hours to spare for enjoyment and re creation with Lis friends, to whom he is aiwk/B welcome as one bf ihe most geni al and vivacious of companions.. So av from being effected by this intense labor his physique exhibtita a scarcely percep tible chango from that which, ho exhibi ted when he was a leader's* our btti*, and at that of the United States Supreme Court, a Senate? frees Louis.?ns. ?n? the most brilliant and effective orator and debater in that body twenty odd years ago, or whoo Secrotary of State of 'the Confede rate States fourteen years ago. . His bair still maintains its raven hue,'unfrosted by sixty-seven years of trial and labor; his flashing oyca have all their old brillian cy, needing no aid of glasses to perform their work, and bis handaomo face Wears still that winning smile which is rarely preserved by masculine countenances and is one of tho happiest constituents of womanly beanty. Tho paly .perceptible chungo observable in bis manner is in tho greater gravity and precision of hi? utterance, and in the restraint of a vi vacity which, in his middle age, might be properly described os boyish in ita freedom and gayoty.-2'ev Orleans Dem ocrat, "' ? . ? ' ' 1 How TO INCREASE EGO PRODUCTS. If an increase of. eggs be desired in tho poultry yard, before ?argo SUEUS of money are expended in-the purchase of ever lasting lavers, we weald recommend the system of keeping no hens after the first, orat 4ho mo?t? their second year. K?ST ?y pullets give the increase, and the only wonder is thnt people persist as - they do in keeping up a stock of old hens, which Lay one day abd stop three, instead I of laying three days and stopping |one. In some parts of England it is the Invariable rule to keep tho pul lets only one year. Feeding will ao a ?^rc?t d??l-a Burpriniug wont indsca-. n the production of eggs ; but not when old hens aro concornea ; they may put on fat, but they cannot put down, eggs; The tale ls told, their work ie over; nothing remains to bo doue with them but to give them a ruell of the kitchen fire, and the sooner they get that tho bettor. Of course there aro some old fa vorites whoso liven cmcrX.t. ir? hu a long as tuey can send "forth their repre sentatives. Judicious mating, by which we mean tho advantage of n compara tively youthful cochero!, may bo. Uro means of oven exhibition poultry making their appearance from the eggs bf tho Seed ben, and hera wo have the excep ion of tho rule upon which we insist. A Frequent bnt Fatal Hitiake. . As the Irishman, who had just landed and refused to pick up a dollar, thinking to go whero they were "thicker," came ., to Want, so those who fimcv that a cough i or cold will cure itself, and refuso to use ?{Dr. Pierce's Golden Medical Discovery, II often die with consumption. Thia great remedy bi an unsurpassed pectoral and blood-purifier. It speedily cures a cough or co"J, and consumption in its* early steges ' readily yields lo it Tt hal BO known equal in controling and coring edi scrofulous tomors, ulcers, and eruptions. Somo fancy beeaiue th? JKwMwy u. ad vert??*! t? te**? a wide raig? K # cannot among. Now. let na eeo. Sup pose a surgeon bo s?-?tlcg a limb, could he not truthfully say that his treatment would gradually overcome all falntnos?, nausea, dlralness, weakness, and lame ness T Each symptom differed yet all dependent upon the. ww?, causo. By this process tho Golden Medical Discov ery cures many dfoeasds, though all MO dependent upon impoverished blood, and general debility. Kead the Poopktf Common Sense Medical Adviser ca* ly. Dr. Pierce's mothod ci med thcrolA fully explained. \