dissenting. A writ of prohibition to restrain the Treasurer and Auditor of the County of Charleston from the collection of taxes, alleged to be erroneously assessed and charged *535against the relators, was, in due form, issued by the presiding Judge of the Court of Common Pleas of the First Circuit. An appeal has been taken to this Court to reverse his judgment: 1st. For want of jurisdiction to issue the writ in tax eases ; and, second, whether, admitting the jurisdiction, the respondents are entitled to the relief sought, as within the exemptions from taxation provided by law.
The first ground involves the validity of Section 5 of the Act of the Legislature of 28th February, 1870, “ to alter and amend an Act entitled ‘ An Act to provide for the assessment and taxation of property,’” Gen. Stat., Sec. 62, Ch. 13, p. 96, which declares “ that the collection of taxes shall not be stayed or prevented by any injunction, writ or order, issued by any Court or Judge thereof.” If this provision does not conflict with the Constitution of the United States or the State, by affecting powers granted by the latter to any ■ other co-ordiriate department of the government, virtually destroying their exercise, it must operate as the expression of the legislative will, in a matter over which it had full and unreserved control.
While it is not impugned by reason of any repugnance to the Constitution of the United States, it is alleged to be in conflict with the 15th Section of the 4th Article.of the Constitution of the State, which confers on the Courts of Common Pleas power to issue writs of prohibition, scire facias, and all other writs which may be necessary for carrying their powers fully into effect; that it thus by statute attempts to deprive the Judicial Department of the government of a jurisdiction expressly conferred upon it by the Constitution, and is, therefore, void and of no effect.
It is not to be denied that, at and long before the adoption of the Constitution of 1868, prohibition was recognized as an appropriate remedy for the' stay of the collection of taxes erroneously imposed. Its long use in practice for such proposed object in South Carolina was as well understood as its more restricted purpose at common law. In Burger vs. Carter, 1 McM., 418, the question was directly made, and Judge O’Neall, delivering the opinion of the Court in regard to the objection that the writ would not lie to restrain the enforcement of a tax execution, said : “ I concede that if we were obliged to 'resort for authority in this respect to English ,precedents, we could not sustain this proceeding, for-, according to them, the writ of prohibition only lies to prohibit the enforcement of the judgment of an inferior jurisdiction, where it has proceeded without jurisdiction, or where, having jurisdic*536tion, it has exceeded it.( But in this State it has had a wider operation. For the want of a better remedy, it has been allowed to restrain the enforcement of tax executions. How this practice began, it is difficult as well as unimportant to ascertain. * * * The practice is well established, has never before been questioned, has operated to the protection of the citizens, and, so far as our experience or information extends, has effected no injury, and produced no inconvenience.” So well has the practice been understood, that it has not since been questioned, and as late as April, 1871, in the case of the Hibernian Society vs. Addison, 2 S. C., 500, the same mode of procedure was followed, without any intimation of objection.
When the Constitution vested the Circuit Courts with the power to issue writs of prohibition, it must be understood as extending it to the writ as then accepted and recognized in South 'Carolina. If it had been here applied to cases in which in England it would not have.been considered a proper remedy, the use of the term in the Constitution must be received in the import which attached to it at the time of its adoption. There is nothing expressed or implied, by which its operation, as then understood, can be contracted or diminished. A legal definition of it had been given by the Courts of the country. It was to have effect in the community for whose government and protection the Constitution was ordained and established, and its use in that instrument must be referred to the acceptation in which it had theretofore been received. Modifications, in the form and application of actions, both ex contractu and ex delicto, as they prevailed at common law, had been made in our Courts prior to 1868, and when such actions are referred to in the Constitution no change was intended, to conform them to the common law in the particulars from which they had departed. “ A Constitution is not the beginning of a country nor the origin of appropriate rights. It is not the fountain of law nor the incipient state of government. It grants no rights to the people, but is the creature of their power — the instrument of their convenience. Designed for their protection in the enjoyment of the rights and powers they possessed before the Constitution was made, it is but the framework of the political government, and necessarily based upon the preexisting condition of laws, rights, habits and modes of thought.” See Cooley on Con. Lim., 37. It is said in 2 Story on Constitution, Sections 424-6, that “ where a power is granted in general terms *537the power is to be construed as co-extensive with the terms, unless some clear restriction upon it is deducible (expressly or by implication) from the context.” In Waring vs. Clarke, 5 How., 454, it was held that the judicial power of the Courts of the United States, in eases of admiralty and maritime jurisdiction, was not restricted to the same jurisdiction as it existed in England when the Constitution of the United States was adopted. Mr. Justice Wayne, delivering the opinion of the Court, on page 445, says, “ those who framed the Constitution, and the lawyers in America in that day, were familiar with a different and more extensive jurisdiction than was allowed in England, from the interpretation which was given by the common law Courts to the restraining statutes of Richard II and Henry IV.” In the case of The Belfast, 7 Wall, 636, Mr. Justice Clifford says: “Judicial power to hear and determine controversies in admiralty, like other judicial power, was conferred upon the Government of the United States by the Federal Constitution, and by the express terms of the instrument it extends to all cases of admiralty and maritime jurisdiction, which, doubtless, must be held to mean all such cases of a maritime character as were cognizable in the Admiralty Courts of the States at the time the Constitution was adopted.”
Unless the Constitution otherwise declares by express words or necessary implication, pre-existing laws are not repealed, and its various grants of power must be construed by the lights which they afford. On this principle proceeded the case of White vs Kendrick, 1 Brev., 469, and it was more distinctly enforced in Coleman vs. Maxcy & Arthur, 1 McM., 501, in which it is said, referring to the words, “ law of the land,” “ by analogy, it has been held in this State that the same terms used in our Constitution, (1790,) must embrace the common law as then adopted here, and the statutes of Great Britain and of this State made of force and in operation at that time.” The sanie view was recognized in Commissioners of New Town Cut vs. Seabrook, 2 Strob., 565. To these authorities may be added the ftase of McKenzie vs. Alexander, 2 S. C., 81, decided by this Court, in which it was held that “ Section 4, Article IV, of the Constitution, declaring that the Supreme Court shall always have power to issue writs of mandamas, quo warranto and habeas corpus, ivas not inserted in that instrument for the purpose of perpetuating a mere form, but for the purpose of vesting the Court with jurisdiction in that class of cases where the writ of quo war*538ranto was the proper remedy at the time of the adoption of the Constitution.” Our Associate, Mr. Justice Willard, delivering the opinion of the Court, looking to the use of the said terms in the Constitution, at page 86, says: “The writs of 'mandamus, quo warranto and habeas corpus are referred to as a convenient and usual means of marking out the limits of jurisdiction intended for the Supreme Court. In legal parlance, the writ or form of action is allowed to personate and stand for the jurisdiction to which it relates, to avoid inconvenient particularization. It is in this sense that the terms are here used. Such writs were then in common use and furnished the common forms of expression for conveying the sense thus intended by this Section. To separate the expression ‘ shall always have power to issue writs,’ &e., from the context, might create a doubt whether the conservation of the writ or the extent of the powers of the Supreme Court was the object in view, but, read by the context, it is clear that the technical value of the writs, as remedial means, was not the subject of consideration; but substantial rights, to be protected by lodging certain judicial powers in the Supreme Court, was the single end, contemplated.”
If the power to issue the writ in question was conferred by the Constitution on the Circuit Court, to be exercised in cases where, at its adoption, it was the recognized remedy for the purpose claimed by the suggestions now before us, can the Court be deprived of its jurisdiction by the action of the Legislature? If it can, then the powers of the Court granted and prescribed by the Constitution, and to be enforced through a separate and co-ordinate division of the government, independent of all other of its branches, does not depend upon the judgment of those to whom alone it is confided, but is at the change, direction and control of another of its departments, from which it was intended to be forever distinct. If subject to the interference of the Legislature in the exercise of its legitimate functions, then the Legislature become the judges of the force and validity of the very laws which they themselves enact. This would not be in harmony with the long prevailing notions of a Republican government. The judicial power of the State is vested in the Courts, and the Constitution requires “ that the legislative, executive and judicial powers of the government shall be foreveif separate and distinct from each other.” The judicial branch is a restraint on that portion of it invested with the law-making power, and if it can enforce its own legislation by depriving the Courts of the *539authority to test its action by an inquiry into its sanction by the Constitution, then the protection intended for the citizen in “his life, property and character,” through a resort to the Courts, would be a mere mockery and delusion.
But it is said that, notwithstanding the general grant of power in regard to this writ, the Legislature may, nevertheless, determine in what cases, and under what circumstances it may issue. This concedes an unlimited control to the Legislature of the whole judicial magistracy of the State, which, in the end, might be so exercised as to suppress its entire authority. If it can declare in what cases a particular form of action shall be a remedy for an alleged complaint, and ignore its application to' other cases, in which, at the adoption of the Constitution, it was employed as a medium through which a wrong- was to be redressed, may it not, step by step, disarm the Courts of all their authority, and at last leave it but a tribunal to carry out the behests and mandates of the legislative will? The power to tax is the most extensive and unlimited of all the powers which' a legislative body can exert. It is without restraint, . except by constitutional limitations. To tie up the hand that can alone resist its unlawful encroachments would not only render uncertain the tenure by which the citizen holds his property, but would make it tributary to the unrestrained demands of the Legislature. The prohibition is without qualification. As if to leave no opportunity for any legitimate test of its exactions, it declares that “ the collection of taxes shall not be stayed or prevented by any injunction, writ or order, issued by any Court or Judge thereof.” No matter how excessive or unjust the requisition of the Treasurer, howéver unreasonable or extravagant, the remedy, which, at the adoption of the Constitution, was the ready means to which the citizen could resort to test the validity of the demand, and which in terms is included in the grant of powers by that instrument conferred on the Courts, is withdrawn and destroyed. In support of this legislation it is said that in lieu of the one forbidden another has been substituted by allowing “an action or proceeding against a County Treasurer for the purpose of recovering taxes alleged to have been erroneously assessed and collected.” This is a remedy of entirely another character, and' to attain a different end, and one which before appertained to the citizen, if he was forced to pay an unlawful tax. The object of the writ of prohibition is to restrain the collection of the tax. In Reed et al. vs. Tyler et al.., 56 Ill. R., *540292, it was held that a statute requiring the payment of redemption money and interest as a condition precedent to questioning the validity of a tax deed, was unconstitutional. Can it be reconciled with any principle of right or justice that the State shall say, notwithstanding your complaint and assertion of injustice against our demand, we will force you to pay it by preventing your resort to our own Courts and leave you to your action for its recovery ? If the tax demanded should prove to be, not only beyond the competency of the Legislature in its imposition, but increased in amount by the extortion or cupidity of the tax officer, must the citizen be required to pay it, and deprived for an indefinite period of the enjoyment of the amount exacted, and left to a compulsory resort to an action for its recovery? Such a course appears to be at variance with the principles on which our government is founded.
It is the boast of the law that it affords a remedy for every wrong. Is not the enforcement of a tax, either excessive as to amount or not imposed according to existing legal requisitions, a wrong ? and where is the remedy by which its payment can be resisted if that afforded by the Constitution is suppressed ? Sir Edward Coke, referring to the emphatic words of Magna Charta, says in 2d Inst., 55: “Every subject, for injury done to him to bonis, in terris, vel persona, by any other subject, be he either ecclesiastical or temporal, without any exception, may take his remedy by the course of the law, and have justice and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay.”
It is a delicate duty to declare an Act of the Legislature void. If, however, in the judgment of the Court, the enactment is without constitutional right, there is no alternative but to do so. As was most appropriately said by Judge Waties, in Lindsay et al. vs. Commissioners, 2 Bay., 61 : “ In exercising this high authority, the Judges claim no judicial supremacy; they are only the administrators of public will. If an Act of the Legislature is held void, it is not because the Judges have any control 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.”
Entertaining, on the question made, the views which I have herein expressed, I cannot concur in the judgment of the Court.