Short v. State

Robinson, C. J., delivered the opinion of the Court. By the Public Local Laws for Dorchester County all able-bodied residents of the county above twenty and under fifty 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 paying to the road supervisors seventy-five 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 seventy-five 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 ³⁹⁸ Peace, shall be .fined seventy-five cents for each day’s delinquency and costs, and shall stand committed until the fine and costs are paid. Sections 268, 269 and 270, Local Laws 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 ¿ny 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. Art. 15, Declaration of Rights, Constitution of 1867. 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 pollf 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 a 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 ³⁹⁹ 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 the Act of 1715, chapter 15, we find that all persons, males and females, free and slave, above the age of sixteen 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 specific sum, to be paid in money or tobacco, 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, the Act of 1702, chap. 1, declaring the Church of England to be the established church of the colony, also provided that a tax of forty 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 them, 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 whilst 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 the Act of 1704, chapter 21, all laborers and servants were required to work on the public roads, and upon the refusal of such laborers to perform the services ⁴⁰⁰ 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