Short v. State | Cases | Westlaw

By the Public Local Laws for Dorchester county, all able–bodied male residents of the county, above 20 and under 50 years of age, are compelled to labor two days at least in every year in repairing the roads of said county, with the privilege, however, of furnishing a substitute, or of paying to the road supervisor 75 cents for each day such person may be summoned to labor, the money thus paid to be expended in repairing the roads. And it further provides that any one neglecting or refusing to perform such labor, or to provide a substitute, or to pay 75 cents per day for each and every day he may be summoned to work, shall be guilty of a misdemeanor, and, upon trial and conviction before a justice of the peace, shall be fined 75 cents for each day's delinquency and costs, and shall stand committed until the fine and costs are paid. Pub. Loc. Laws, art. 10, §§ 268–270, tit. “Dorchester County.” And the act further provides that any one aggrieved by the judgment of the justice of the peace may appeal to the circuit court. The main question, and the only one it seems to us about which there can be any real contention, is whether this local law is in conflict with the constitution, which declares “that the levying of taxes by the poll is grievous and oppressive and ought to be prohibited.” Const. 1867, Declaration of Rights, art. 15. And, in construing the meaning of this article, we must bear in mind that the same declaration is to be found in the constitution of 1776, and in every constitution adopted in this state down to the constitution of 1867. So the question comes to this: Is compulsory labor imposed upon persons residing in the several election districts of a county, for the purpose of keeping the roads in repair, with the privilege of providing a substitute or the payment of a stipulated sum in lieu of such personal service, a “levying of taxes by the poll,” within the meaning of the constitution? Such compulsory labor is, beyond question, a burden on the persons upon whom it is imposed, and, though it assumes the form of labor, it may be fairly considered, we agree, in the nature of tax. At the same time, when this article in the bill of rights is construed in the light of the legislation in regard to levying taxes by the poll in force when the constitution of 1776 was adopted, and in the light of the legislation in regard to compulsory labor on the public roads, also in force at that time, and which has continued in force down to the present, it is clear, we think, that compulsory labor for the purpose of keeping the roads in repair has never been considered as a poll tax prohibited by the constitution. A brief reference to the legislation in force when the constitution of 1776 was adopted will clearly show, we think, the nature and character of poll taxes the levying of which was declared to be grievous and oppressive and ought to be abolished. If we turn to Act 1715, c. 15, we find that all persons, males and females, free and slave, above the age of 16 years, are declared to be “taxables,” and upon each person thus declared to be a taxable the commissioners of the several county courts were directed to levy a specified sum, to be paid in money or tobacco, *323 for the support of the government; and this act providing for the levying of taxes by the poll continued in force down to the Revolution. And, in addition to the poll taxes thus levied for public purposes, Act 1702, c. 1, declaring the church of England to be the established church of the colony, also provided that a tax of 40 pounds of tobacco per poll should be levied each and every year for the support of the clergy, and this act continued in force down to the Revolution; and, strange as it may seem nowadays, the poll taxes to which we have referred were the only direct taxes levied for public purposes during the colonial period. Such taxes thus levied, without reference to the ability or the means of the “taxable” to pay, must necessarily have been in many cases burdensome and oppressive, and it was such levying of taxes by the poll that the constitution of 1776 denounced as being “grievous and oppressive,” and which ought to be “abolished.” And, while poll taxes were levied for public purposes, the public roads were made and kept in repair by compulsory road labor, and with this article in the constitution of 1776, prohibiting poll taxes, statutes compelling persons to labor on the roads for the purpose of keeping them in repair have been in force down to the present time, and this is the first time the constitutionality of such laws has been questioned. As early as Act 1704, c. 21, all laborers and servants were required to work on the public roads; and upon the refusal of such laborers to perform the services thus required, or the master to furnish his servants, the master and laborers were liable to indictment and punishment. This law was substantially in force when the constitution of 1776 was adopted, and continued in force for years after its adoption. And instead of being repealed, or being considered as repugnant to the article in the bill of rights of 1776, Act 1795, c. 37, recites “that whereas doubts have arisen, what description of persons are intended to work on the public roads under the existing laws to which this is a supplement, therefore be it enacted, that every able–bodied male person shall be and is hereby made subject to like personal service.” And this act further provides for the payment of money in commutation of such personal service. And though this act has been amended from time to time, and most of the counties have been exempted from its operation, the main features of the act––the compulsory service, with the privilege of furnishing a substitute or paying a stipulated sum in lieu thereof––have been part of the local law of Dorchester, Somerset, and other counties down to the present time. In construing this article in the bill of rights of the constitution of 1867, being identical with the article. in the constitution of 1776, it is but fair to presume that the framers of the constitution of 1867, and the people who adopted it, understood this limitation on the power to levy taxes by the poll in the sense in which it had been construed and acquiesced in for nearly 100 years. Similar statutes in other states have been in operation for years, and their validity, when questioned, has been fully sustained; and, referring to these statutes, Judge Cooley says: “Though the public burden assumes the form of labor, it is still taxation, and must therefore be levied on some principle of uniformity. But it is a peculiar species of taxation, and the general terms ‘tax’ or ‘taxation,’ as employed in the state constitutions, would not generally be understood to include it.” Cooley, Const. Lim. (6th Ed.) 629; Cooley, Tax'n, 14.

And then, as to the objection that this local law is repugnant to that clause in the fourteenth amendment of the federal constitution which declares that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” it is sufficient to say that the interpretation of that clause by the supreme court in the Slaughterhouse Cases, 16 Wall. 36, is a complete answer to this objection. There is a distinction, says Mr. Justice Miller, between citizenship of the United States and citizenship of a state. To become a citizen of the United States, it is only necessary that one should be born or naturalized in the United States; but to be a citizen of a state, he must reside within the state. Further he says: “It is a little remarkable, if this clause was intended as a protection to the citizen of a state against the legislative power of his own state, that the words ‘citizen of the state’ should be left out where it is so carefully used, and used in contradiction to ‘citizens of the United States,’ in the very sentence which precedes it;” and the supreme court held that this clause merely protected the “privileges and immunities” of citizens of the United States, and was not intended to control the power of the state governments over the rights of their own citizens; and, as to the privileges and immunities belonging to the citizens of a state, “the latter must rest for their security and protection where they have heretofore rested,”––that is, with the state in which the citizen resides. And again, in Bradwell v. State, 16 Wall. 130, referring to the same clause in the fourteenth amendment, Mr. Justice Miller, speaking for the court, says: “The protection designed by that clause, as has been repeatedly held, has no application to a citizen of the state whose laws are complained of.” The appellant is a citizen of this state, and the law of which he complained as having abridged and interfered with his privileges and immunities is a law of his own state, and, this being so, the clause in the fourteenth amendment on which he relies has no application. The law of which he complains merely imposes upon him the same duty and obligation which it requires of all other persons within the ages designated by the statute, without making any distinction whatever on account of color or race. And there is no ground on which it can be *324 assailed as being repugnant to any of the provisions of the state or federal constitutions. For a breach of the duty imposed on the appellant and all others, it provides for a fair and impartial trial according to the law of the land, and upon conviction it provides that the offender shall be fined, and stand committed until fine and costs are paid. No one can question the power of the state thus to provide for the enforcement of its law and the punishment of all who violate it. As to the policy and wisdom of the law in question, it is quite sufficient to say that that is matter resting with the legislature, and not with the courts. Cooley, Tax'n, 437; Appleton v. Hopkins, 5 Gray, 530. Rulings affirmed.