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long as he pleased, at a full rent.

The sultan submitted to Lindsay and

the law. He observed, that we might learn two things from
this example of a despot: 1st. That the sovereign power,
although absolute, is not at liberty to take away private pro-
perty and decide, at its own discretion, that no compensation
is due ; 2d. That the principle of indemnification is deeply
founded in natural justice. It was further said in this case,
if any injury is done, the parties might have recourse to a
court and jury for redress. But whom could they sue?
not the commissioners, not the city council; for they would
Whom then? why, no one. But
justify under the act.
suppose they could sue, what would be the nature of the
action? It could not be founded on contract, for there was
It must then be on a tort; it must be an action of
trespass, in which the jury would give a reparation in da
mages. Is not this acknowledging that the act of the legis
lature is a tortious act? and can any thing prove more
fully, the arbitrary character of the act, than this?

none.

He said, it was painful to him to be obliged to question the exercise of any legislative power, but he was sworn to support the constitution, and this was the most important On of all the duties which were incumbent on the judges. the faithful performance of this high duty would depend the integrity and duration of our government. If the legislature is permitted to exercise other rules than those ordained by the constitution, and if innovations are suffered to acquire the sanction of time and practice, the rights of the people will soon become dependent on legislative will, and the constitution have no more obligation than an obsolete law. But if this court does its duty, in giving to the constitution an overruling operation over every act of the legislature which is inconsistent with it, the people will then have an independent security for their rights, which may render them perpetual. In exercising this high authority, the judges claim no judicial supremacy; they are only the administrators of the public will. If an act of the legislature is held void, it is not because the judges have any control

others

V.

Commission

ers.

others

Commission

ers.

Lindsay and over the legislative power, but because the act is forbidden by the constitution, and because the will of the people, which is therein declared, is paramount to that of their representatives, expressed in any law. As the act under consideration appeared to him to be repugnant to this high will, he was bound to say, that it ought not to have any operation, and that the prohibition should be granted.

As the judges were equally divided in opinion in this case, the applicants took nothing by their motion.

The rule for the prohibition was, therefore, discharged.

October term, 1796.

On not guilty pleaded to an

THE STATE against SMITH and CAMERON.

UPON an indictment in the court of general sessions of

indictment for the peace, &c. for an assault and battery. Not guilty

an assault and

battery, evi- pleaded.

dence of extenuating cir

cumstances is improper to

the trial, but

submitted to

On the trial of this case, the defendants offered to give go to a jury on in evidence to the jury a variety of extenuating circumought to be stances, which were calculated to lessen the nature of the punishment, but which did not go either to a justification, affidavits be- or to disprove the charge laid in the indictment; which the is pronounced. presiding judge refused to admit as proper testimony to go to compel a to the jury on the issue of not guilty pleaded.

the court on

fore sentence

And in order

witness to attend and give

such kind of testimony, (if

On a motion for a new trial, on the ground that the tesnecessary) the timony offered should have been permitted to have gone to

defendant is

subpoena in

entitled to a the jury, it was ruled by all the judges present, that the same manner presiding judge at the trial had very properly rejected such testimony, on the issue of not guilty pleaded, as irrelevant to the point before the jury; but that all such extenuating

as on the trial of an issue.

circumstances should be submitted to the court, on affidavits, a reasonable time before sentence is pronounced. And in order to guard against a failure of justice, by the non-attendance of witnesses to give testimony of such extenuating circumstances as a defendant may be desirous of submitting to the court on the sentence day, they were further of opinion, that a defendant was entitled to a subpœna, as a matter of right, to compel the attendance of witnesses on such occa sions, as well as on trials of issues before a jury.

Present, GRIMKE, WATIES and BAY.

BURKE afterwards concurred.

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JAMES SHOOLBRED and Wife against The CORPORATION October, 1796. OF THE CITY OF CHARLESton.

UPON a motion to shew cause why a mandamus should not issue to compel the corporation to make an assessment on the city, to pay for a house pulled down in order to open Meeting-street.

Where an act of the legislature imposes a duty on a

corporation, to

make an assessment to

pay for buildings pulled down to open mandamus

a street, 2

will lie to compela performance of such

duty.

Every city, county and

The facts in this case were not disputed. Mrs. Shoolbred had inherited through her maternal ancestry a lot of land at the upper end of Meeting-street, on which the house in question had been built by one of her ancestors. It was a valuable one, and had several convenient out-buildings attached to it, fit for the accommodation of a genteel family. At the enclosures which surrounded this mansion, Meetingstreet formerly terminated, before the old fortifications which surrounded the town were demolished, and a street now roads and called George-street, which ran off at right angles in a westwardly direction to King-street, from the end of Meetingstreet, formed one of the great avenues leading to and from

parish in the

state is obli

ged to keep the streets,

pair, within bridges in re

dary, and also to defray the

its own boun

necessary ex÷ pense.

Shoolbred

V.

of Charleston.

the city. But upon the return of the blessings of peace, afCorporation ter the revolutionary war, when all the fortifications in the rear of the city became useless, and its population had greatly increased, it became necessary, for the accommodation and convenience of the citizens, to open Meeting-street from the point where it formerly ended, as it would then form one of the greatest and most convenient communications between the town and country. The buildings in question, however, stood in the way, and without their removal the street could not be opened. An application was therefore made to the legislature, for permission to pull them down and remove them out of the way, in order to run the street through the lot of ground on which they stood, to the unimproved grounds in the rear of them. The legislature, being satisfied of the necessity and utility of opening this street, in the year 1795 passed an act authorizing the running of the street through this lot, and appointing seven commissioners, therein named, to fix upon the compensation which it was reasonable should be made to Mr. and Mrs. Shoolbred, for the injury they were likely to sustain by the loss of the buildings and gardens through which the street was to run, to be defrayed by an assessment, to be made by the corporation of the city of Charleston, on the inhabitants in general.

This valuation, in pursuance of the powers given by the act, was made by the commissioners, to the entire satisfaction of Mr. and Mrs. Shoolbred. But a difficulty arose about the manner of making the assessment necessary to raise the sum requisite, agreeable to the appraisement.

On the one hand, it was contended by the city wardens, that as this new street was continued over the boundary line of the city, through the parish of St. Philip and St. Michael, for two miles, up to the King-street road, and as the inhabitants above the city line would benefit by it quite as much, if not more, than those within the city limits, it was insisted on by them, as well as by a large proportion of the inhabitants, that the assessment ought to be made on the in

habitants of the parish generally, and not to be confined to Shoolbred those in the city only.

To this it was answered by the commissioners of the roads and highways for the parish, that they had no objection to open and keep in repair this new road or street from the boundary line of the city, that is, from the north line of Boundary-street to the King-street road, but that the inhabitants above that line were not obliged by law either to work on the roads or streets, or to contribute to keep them in repair, below the city boundary. That the city of Charleston, by its charter, formed a separate and exclusive jurisdiction within itself, and the corporation had the care and superintendance of all the streets, lanes and alleys in the city, and were bound to open and keep them in repair at the expense of the city alone. That it was very much for the convenience, as well as for the ornament and beauty of the city, that this street should be opened, and the obstructions removed out of the way; for which reasons, they contended that the assessment should be made on the city only.

The power of the legislature to pass the act was not called in question, but admitted on all hands; the only matter in dispute was the mode of making the assessment.

The Judges, after hearing counsel for and against the motion, were unanimously of opinion, that the expense should be borne by the inhabitants of the city of Charleston alone. That it was a general principle, which had pervaded every part of the state, from its early establishment to the present day, that every county, parish and district throughout the state, should lay off and keep in repair its own roads, bridges and causeys; (except in cases where the counties or parishes were divided by rivers or water-courses; in such cases, the bridges were to be built and kept in repair at the expense of the adjoining counties or parishes ;) and as a necessary incident thereto, should defray all the expenses necessarily attending the same.

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V.

Corporation of Charleston,

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