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the same right. Prudden had never for a moment acquiesced in the laying of the second track; he filed his bill before any work was done. These complainants are in precisely the same situation. Some of them acquiesced in the Act of 1831, consolidating the joint companies; all as expressly alleged in the bill (p. 30, 1.30) assented to, or acquiesced in the act consolidating the United Companies, and the agreement which it confirmed. These matters were, according to the Hackensack and New York Railroad case, greater cncroachments on these rights of stockholders than the present lease.

The doctrine of acquiescence settled in Prudden's case must be applied, as it was then applied, only to affect the remedy by injunction. For that purpose, though novel, it may seem equitable. It will never answer nor was it intended to be applied to affect or change rights of property or to claims in the courts of law. Else the owner of a lot with a house removed from the front, if he suffered his neighbor to erect a building encroaching on the lot a few feet or a few inches, would be bound by this, if that neighbor, twenty years afterward, should erect a wing to this building, extending across the lot and cutting off access from the house to the street, more especially if, as in Prudden's case, there was a street by the side or rear from which a gate could be cut, and access had to an entrance to be made in the back side of the house. But such acquiescence must in this case, as in that, deprive the complainant of his remedy by injunction. That decision is the law of this Court until reversed or modified.

These views make it unnecessary for me to consider other questions presented, including that of a want of necessary parties to the suit, so ably urged by the counsel who opened the argument for the defendants.

The injunction must be denied, and the order restraining the defendants from executing the lease vacated. I have arrived at the above conclusion after careful investigation and deliberate reflection. The case itself is of great importance, the principles involved are still more important. I have been much aided by the able and exhaustive arguments of the distinguished counsel concerned in it. Their briefs, especially the full and elaborate brief of the opening counsel, contain a summary of the law upon the subject.



[DECEMBER, 1871.]


Tax upon Law Suits constitutional and valid. SNEED, J.-Upon a motion to re-tax the costs in this cause in the Circuit Court of the county of Robertson, the plaintiffs, who were the unsuccessful parties in the litigation, moved to strike out the State tax of five dollars, and the county tax of a like amount, adjudged against them, upon the ground that the statute imposing a tax upon law suits, is unconstitutional and void. The motion was disallowed, and the plaintiffs have appealed in error.

It is insisted that the tax in question is but the imposition of a burthen upon the right of the citizen to go into the courts to have his wrongs redressed, and his rights vindicated, and that the statute which authorizes the tax, is an infraction of that section of our bill of rights, which declares that, "all courts shall be open, and every man for any injuries done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered, without sale, denial or delay.” This section of our Bill of Rights is in substance identical with the great principle of English liberty granted by Magna Charta, and was borrowed from the 29th chapter of that celebrated instrument, which in its original English version was in the words following: “No freeman shall be taken or imprisoned or disseized from his freehold, or liabilaties, or immupaties, nor outlawed, nor exiled, nor in any manner distroyed-nor will we come upon him, or send against him, except by a legal judgement of his peers, or the law of the land. We will sell or deny justice to none, nor put off right or justice.” By sections eight and seventeen of our bill of rights, the great guarantees of popular liberty announc

in this chapter of Magna Charta were recognized, and adopted as a part of the fundamental law of this State—first by the Constitution of 1796, and again by that of 1834, and again by the Constitution of 1870. By the fourth section of the 10th article of the Constitution of 1796, it is provided that “the declaration of rights hereto annexed

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is declared to be a part of the Constitution of this State, and shall never be violated on any pretence whatever. And to guard against trangression of the high powers which we have delegated, we declare that every thing in the bill of rights contained, and every other right

of not hereby delegated, is excepted out of the general powers gove ernment, and shall forever remain in violate:” Hay.& Cobb, Rev., 406.

A provision of equivalent import is contained in each of our subsequent Constitutions of 1834 and 1870. The first statute imposing a tax upon litigations in this state, was enacted within three years after the adoption of the Constitution of 1796, and by that statute it was provided: that the several clerks and masters of the courts of equity, the clerks of the superior courts of law, and the clerks of the several county courts, shall collect the following taxes for the use of the State, viz: on each suit in equity, two dollars and fifty cents; on each suit in the superior court of law, one dollar and twenty-five cents ; on each suit in the county court, sixty-two and a half cents; on each appeal from an inferior to a superior court, or writs of certiorari, one dollar; and the taxes in equity, and suits at law, shall be taxed in the execution when the suits are determined: Act 1799, ch. 30, § 1, Hay. & Cobb, Rev., 349.

By the Act of 1817, ch. 138, this Act of 1799, ch. 30, was amended so as to require the several clerks of circuit and county courts to collect the sum of one dollar on each suit commenced by original writ or attachment, and the same on every suit taken to the circuit court from the county court by appeal or certiorari; also, the sum of one dollar on each indictment or presentment, and the sum of fifty cents on each appeal or certiorari from before a Justice of the Peace, in addition to the tax already collected by law, which shall be taxed in executions as heretofore!” Hay. & Cobb, Rev., 349. And by the Act of 1827, ch. 49, upon a successful motion by the solicitor, against

: the clerk or other collector of public taxes, a tax fee was allowed the solicitor, in case it be collected of defendants:" Id., 362. These several statutes authorizing a tax upon judicial proceedings, were in full force and operation when the convention of 1834 met, and adopted the Constitution of that year, wherein it is declared that, "all laws and ordinances now in force and use in this State, not inconsistent with the Constitution, shall continue in force and use, until they shall expire, be altered or repealed by the Legislature:” Cons. 1834, art.

The Legislature which assembled next after the adoption of the

xi., $1.

Constitution of 1834, recognized and adopted these laws, by re-enacting them with certain changes, in the words following: "each and every person who shall be unsuccessful in any suit in equity, shall pay a tax of two dollars and fifty cents; on each suit in the circuit court, two dollars and twenty-five cents; on each appeal, writ of error, or certiorari from the circuit or chancery court to the supreme court, two dollars; on each appeal or writ of certiorari from before a Justice of the Peace, one dollar and sixty-two and a half cents; and each indictment or presentment, one dollar: Act 1835, ch. 13, $ 4, Car. & Nich., Rev., 604. By a subsequent Act, these taxes were increased as follows: on each suit in law or equity, three dollars and fifty cents; on each petition filed in any of the courts of record for the division and distribution of estates, three dollars and fifty cents; on each appeal, writ of error, or certiorari from the circuit or chancery court to the supreme court, three dollars and fifty cents; on each appeal, or certiorari from before a Justice of the Peace, two dollars; and on each presentment or indictment, two dollars: Code, $ 553; and by section 551 it is provided, that the taxes aforesaid shall be paid by the unsuccessful party in the litigation; and for prosecutions for offenses against the criminal laws, by the party taxed with the costs. By the Act of 1865, ch. 8, these laws were again remodeled, and the tax on each original suit in any of the courts of law or equity, fixed at five dollars. And such was the state of the laws


this subject when the Convention met in 1870, to re-organize the State government, and when the Constitution of that year was adopted and proclaimed.

By the first section of the Eleventh Article of that instrument, it is ordered that all laws and ordinances now in force and use in this State, not inconsistent with this Constitution, shall continue in force and use until they shall expire or be altered or repealed by the Legislature. We have thus been careful to show the state of the law upon this subject from the foundation of the government to the present hour, and to trace the changes of the organic law, that it may be seen that on at least two memorable occasions in the history of this commonwealth, the people have met in Convention, having similar laws upon the Statute Book, some of which are as old as the State itself, and have re-organized their government without any ordinance or provision which, in express terms, abrogates or reprobates this kind of legislation. While therefore we can not assume that the provisions of the two Constitutions of 1834 and 1870 adopting and approving the laws then in force, so far as they are not inconsistent with those instruments, give the constitutional sanction to these statutes, yet we must hold these facts to be a persuasive argument which tends to invite, if not justify, such an assumption. It has been well stated at the bar, that time can not consecrate a wrong, and that a statute which violates the organic law, though it has been acquiesced in, as of unquestioned validity, for generations, is not the less an iniquity on account of its years. It, therefore, becomes us to enquire without reference to the antiquity of these laws and the circumstances referred to, which would seem to have forestalled this investigation, whether they are in fact repugnant to the provision of the Constitution, that "the Courts shall be open, and every man for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” It may be observed at the threshhold, that a relinquishment of the right of taxation is not to be presumed unless expressed in terms too plain to be mistaken: Jefferson Branch Bank vs. Skelly, 1 Black R., 430; Gilman vs. Sheboygan, 2 Id., 510; Phil. & Wilinington Railroad Co. vs. Marylund, 10 How., 376.

The power to tax in a government involves the power to exist. It is the chief and fundamental attribute of sovereignty; and the objects and sources of taxation are in general bounded only by the jurisdiction or territorial limits of the State, and extend to and embrace all privileges, rights, properties and franchises not forbidden in the organic law. It is the condition of citizenship that the enjoyment of all these shall be protected by the Government, if the citizen will pay tribute upon them for his own and the general weal. Thus, said Chancellor Kent, the power of State taxation, is to be measured by the extent of State sovreignty, and this leaves to a State the command of all its resources and the unimpaired power of taxing the people and property of the State: 1 Kent Com., 461. The power of taxation, said Marshall, C. J., is an original principle which has its foundation in society itself. It is granted by all, for the benefit of all. It resides in the government as part of itself. * However absolute the right of any individual may be, it is still in the nature of that right that it must bear a portion of the public burden, and that portion must be determined by the Legislature. This vital power may be abused, but the interest, wisdom and justive of the representative body and its relations with its constituents, furnish the only security against unjust and excessive taxation, as


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