dissenting. As I cannot concur in this judgment, its importance makes it proper that I should state briefly the reasons for that dissent.
The lands of a number of the citizens of Anderson County, residing in the townships of Yarennes, Hall, Dark Corner, and Centreville, of that county, were levied and advertised for sale under some process in the nature of a tax execution issued by the treasurer of the county, to enforce the collection of certain assessments upon a subscription voted by a majority of the electors of the said townships respectively, to aid in the construction of the Savannah Yalley Railroad. The plaintiff in this action, being one of those whose lands were advertised, instituted this action in behalf of himself and a number of others in the same condition against the treasurer and auditor of the county and “The Savannah Yalley Railroad Company” to restrain and enjoin the sale of their lands under the process aforesaid, alleging that they never authorized the said subscriptions; that thei;e was no law, or tax levied pursuant to law, to authorize the said levy and sale; that the charter of the company and the whole proceedings were irregular and void, and the acts under which they were instituted unconstitutional. The defendants answered substantially that all the proceedings were regular and authorized, but insisted that the court could not, under any circumstances, grant the relief prayed for, but was prohibited from doing so by the act of December 24, 1878, entitled “an act to facilitate the collection of taxes,” reenacted as sections 268 and 269 of the General Statutes.
The case was heard by Judge Witherspoon, who dismissed the complaint, saying: “I am constrained to conclude and decide that the assessment and levy upon plaintiffs’ property was made by defendants to collect taxes as contemplated in section 269 of the General Statutes, and that the collection of said taxes by levy and sale of plaintiffs’ property cannot be enjoined by this court under said section. This court having no jurisdiction in the premises, neither the constitutionality of the acts of the leg*81islature referred to, nor the liability of the conduct of defendants, can be considered or determined in this action,” &c.
From this judgment the plaintiffs appealed on various grounds, but for our present purpose it will not be necessary to set out any but the following:
“Because his honor erred in holding that the township assessments or subscriptions levied or assessed on plaintiffs’ property in aid of the Savannah Valley Railroad were taxes.
“Because his honor erred in holding that' the assessment and levy ffpon plaintiffs’ property were made by defendants to collect taxes.
“Because his honor erred in holding that the sale of plaintiffs’ property could not be enjoined under section 269 of the General Statutes.”
It is obvious that the merits of the case were never reached. Whether or not there were good grounds for the relief prayed for by the plaintiffs, we do not know, for that inquiry was cut off upon the view that the property was advertised for sale under an execution for the collection of taxes, and the enforcement of such an execution, no matter whether irregular, illegal, or unauthorized, could not be enjoined by the court under section 269 of the General Statutes, which, among other things,, provides as follows : “There shall be no other remedy in any case of the illegal and unlawful collection of taxes or attempt to collect taxes' * * other than that herein provided. * * * And no writ or process of any kind whatever, staying or preventing any officer of the State charged with a duty in the collection of any tax, whether such tax is legal or not, shall in any case be granted by any court or the judge of any court; but in all cases whatever the person against whom any tax shall stand charged upon the books of the county treasurer, shall be required to pay * * and thereupon shall have his remedy under the provisions of the next preceding section,” &c. (which will be adverted to hereafter).
As this provision of the statutes apparently lay in the way of the plaintiffs, before the merits of their case could be considered, and the Circuit Judge had placed entirely upon it his decree dismissing the complaint, after the first argument this court ordered the question of the constitutionality of the aforesaid provision to *82be reargued, saying in the order: “Inasmuch as, in our judgment, the question of the constitutionality of section 269 of the General Statutes (1882) is necessarily involved, though not formally made in this appeal: and inasmuch as such question has heretofore been decided by a divided court, we think it desirable that a question of such importance should be maturely considered before it is re-affirmed,” &c. The question was accordingly reargued at the bar. But it seems that my brethren, notwithstanding its admitted importance and the fact that it was originally decided by a “divided court,” have come to the conclusion that it is better to stand on the principle of stare decisis and reaffirm the former decision, holding that the provision of the law prohibiting the judges from granting injunctions in certain cases, is constitutional, and applies to this case. In that I cannot concur. I thoroughly agree that consistency and stability in the administration of the law is becoming and proper, as tending to promote the peace and good order and prosperity of the State; but it seems to me that it is possible to go to the opposite extreme, and by mere acquiescence to permit the erroneous decision of to-day to ripen into the precedent of to-morrow, and thus allow error to assume the form and force of law, and every instance of such acquiescence only adds to the force of that error.
Section 15, article IV., of the constitution declares that “the Courts of Common Pleas shall have power to issue Avrits of mandamus, prohibition, scire facias, and all other Avrits (including injunction) Avhich maybe necessary for carrying their poAvers fully into effect.” And yet it is maintained that this positive declaration of the constitution may be absolutely nullified by an act of the legislature which provides that “no writ, order, or process of any kind whatever, staying and preventing any officer of the State, charged with a duty in the collection of taxes from taking any step or proceeding in the collection of any tax, whether such tax is legally due or not, shall in any case be granted by any court or the judge of any court,” &c. It seems that the view, sustaining this act in prohibiting judges from granting writs of injunction, sometimes called “the great preventative remedy of equity,” is, that the legislature has the right to determine in what cases the jurisdictional power conferred by *83this section shall be exercised, especially where an adequate alternative remedy is given in the place of that taken away. I had thought that was the very matter which the judges were appointed to determine, there being no good reason why, even as to the collection of taxes, they should not be safely entrusted with the power expressly given to them by the constitution. As was said by this court in Herndon v. Moore, 18 S. C., 351: “The constitution has divided the functions of government into the legislative, executive, and judicial, and it is the fundamental theory of our system that the departments shall be kept separate and each in its own sphere, independent of the others.” The question whether a proper case has been made for an injunction, is peculiarly judicial in its character, and all judicial power has been taken away from the legislature and deposited in the courts of the State created or to be created.
It is true that there are two cases in our books which have been cited as sustaining the constitutionality of the law. But although there are nominally two cases, there is in fact but one, that of State v. Treasurer (4 S. C., 529); for the other, State v. Gaillard (11 S. C., 309), was avowedly and entirely placed on the authority of the first. “When cases follow in line for no better reason than because they have a case to follow, the authority is to be found in the first decision and not by counting up the number in the line.” I must say that I cannot consider the law settled as announced in the case of State v. Treasurer, supra. It seems to me that the decision is not only unsupported by authority, but is of dangerous tendency. It was made in 1871, a time not favorable for intelligent, dispassionate judicial inquiry. As before stated, it was made by a divided court, Mr. Justice Willard delivering the judgment with the concurrence of Judge Wright, and Chief Justice Moses dissenting. It would now, however, accomplish no good purpose to again open the argument, which is well stated in the dissenting opinion of Chief Justice Moses in the case of The Treasurer as also in that of Mr. Justice Mclver in the case of State v. Gaillard, supra. I hope the case will be formally overruled.
But assuming that the prohibition upon the action of the courts, in regard to restraining the collection of State and county *84taxes proper, must be regarded as constitutional for the reason that it has been so decided, does it follow that it is constitutional and applicable to the collection of local township subscriptions to railroads, whether called subscriptions, assessments, or taxes? It is quite certain that neither of the; cases referred to as affirming the constitutionality of the law, arose .in connection with such a case; and upon that precise question we are in no way embarrassed by the principle of stare decisis. But on the contrary, as to such a case the question is still res integra, and we are not bound to enforce the act beyond the exact point decided, or to stretch it by construction so as to embrace cases of this kind, unless it necessarily follows from the nature of the thing or from the terms of-the act itself.
’ It strikes me that cases of this kind are not within the purview of the sections which restrain the judges in the matter of collecting ordinary taxes, and to so construe them will be in effect to amend the law, and in doing so to extend it and go beyond the reasons upon which it was based and contrary both to its spirit and intent and the express terms of several of its provisions. It is perfectly manifest that the act was not passed with any special reference to the collection of railroad assessments, considered as taxes, for the first act upon the subject, that which was considered in the case of State v. Treasurer, was passed as far back as 1870, when there was not in the State, nor ever had been, and it could not be foreseen that there ever would be, such an anomalous thing as a township subscription for a railroad voted by a majority of the electors. The same may be said of the act of 1878, to facilitate the collection of taxes (16 Stat., 785). It is very well known that the object of that act was to prevent the payment of taxes in depreciated funds or money, such as the bills of the old bank of the State, or any other except those which the treasurer was by law authorized to receive, and without the remotest reference to closing the mouths of the judges in the matter of .collecting railroad assessments in the form of taxes. So that it is perfectly plain, that if the law restrained the judges from interfering with the collection of such assessments, it must be from the terms of the act itself being broad enough necessarily to cover such a case.
Are the terms .of ..the sections aforesaid so broad and explicit *85as to require us to construe the prohibition upon the courts, as extending to local' railroad assessments, under the form and name of taxes?' I do not think so. ' Section 268 of the General Statutes, which undertakes to provide what is called the “alternative remedy” for that of injunction taken away, is as follows r “In all cases in which any county, State,- or' other taxes are now, or shall be hereafter charged upon the books of any county treasurer of the State against any person, and such treasurer shall claim the payment of the taxes so charged, or shall take any step of proceeding' to collect the same, the person against whom such taxes are charged, of against whom such step or proceeding shall be taken, shall, if he conceives the same to be unjust or illegal for any cause, pay the said taxes, notwithstanding under protest, in such funds and moneys as the said county treasurer shall be authorized' to receive by the act levying the same ;' and wpon such payment being made, the said county treasurer shall pay the taxes so collected into the State treasury, giving notice at the time to the 'comptroller general that the payment was made hinder protest; and the person so paying said taxes may at any time within thirty days after making such payment, but not after-wards, bring an action against the said county treasurer for the recovery thereof in the Court of Common Pleas for the county in which such taxes are payable ; and if it be determined in said action that such taxes were wrongfully or illegally collected for any reason going to the merits, then the court before whom the case is tried shall certify of record that the same was wrongfully collected and ought to be refunded, and thereupon the comptroller general shall issue his warrant for the refunding of the taxes so paid, which shall be paid in preference to all other claims against the treasury,” &c.
Can any one read this section and affirm with certainty that the remedy therein provided was - intended to extend, and by fair construction does extend, to anything other than what are strictly State or county taxes, levied for the benefit of the government and payable into the State treasury ? These assessments were not made directly by the legislature for the benefit of the State or county government, but by the president and directors of the Savannah Yalley Railroad Company, who had by the joint reso*86lution of 1880 authority to “direct the collection of the taxes voted to the said Savannah Valley Railroad.” They were not upon the regular “books of the county treasurer,” in the sense of the act, but on a special book provided for the purpose, and were not payable “into the State treasury,” giving notice at the time to the comptroller general that the payment was made under protest, but it is expressly directed by the amended charter that the said assessments “shall be paid by such treasurer to said railroad company.”
It seems to me that this.direction of the proceeds of the assessments, at once repealed, quoad these plaintiffs, all the latter part of the section quoted, which is italicized, and that they could not pay under protest and avail themselves of the alternative remedy therein provided, to pay and recover back from the State, if the tax should turn out to be illegal. I do not see that in such case where the money has been paid to the company the comptroller general could “issue his warrant for the refunding of the taxes so paid,” &c. If not, then there cannot be said to be an adequate alternative remedy for these plaintiffs, and that being (as stated by Judge Haskell in State v. Graillard) the only thing which makes the law constitutional, it would seem to follow that no practical adequate remedy being provided of which these plaintiffs may avail themselves, the act excluding the judges from inquiry, cannot extend to them, or, if so, that it is clearly unconstitutional. The act which stands only because it affords an alternative remedy, surely cannot stand in the way of these to whom it gives no such remedy. If the parties cannot in any event recover back the money from the State, then they have no adequate alternative remedy, and if the judges are excluded from even hearing their alleged grievances, they would be left absolutely remediless and at the mercy of a company having the assistance of the officers and the use of all -the machinery of the State.
But it is said that these assessments are taxes, and the prohibition is general, forbidding inquiry into the legality of any kind of a tax. It is true, that in the acts and joint resolutions of the legislature these exactions are sometimes called “subscriptions,” sometimes “assessments,” and sometimes “the Savannah Valley Railroad tax,” but it is quite certain that they are not State *87taxes in the usual and ordinary sense of the word. To be taxes in the sense of the act, they must have the characteristics of taxes, and if not they cannot be made such, by simply calling them by that name. I have always had the idea, expressed by Webster in one of his definitions, that “a tax is a rate or sum of money assessed on the person or property of the citizen for the use of the nation or State,” and doubtless that was the sense in which the framers of this law understood it. But I do not think it necessary here to enter into the discussion. Whether these exactions voted by a majority of the electors in the townships named for the benefit of the railroad company, are called “subscriptions,” or “assessments,” or “railroad taxes,” is a matter outside of the question. In either case it seems to me clear that they are not “taxes” in the sense of the sections under consideration, which require the taxes there in contemplation to be paid “into the treasury of the State,” and in reference to which the comptroller general, in a certain event, was required “to issue his warrant refunding the same.”
Sections 268 and 269 are manifestly but parts of the same scheme: the first undertaking to provide an alternative remedy by the State refunding, if the tax should turn out to be illegal; and the second forbidding all “other remedy.” And the point is, that when the circumstances are such that the “other remedy” is not given by the first, it follows that the second, taking away that by injunction, does not apply. And in this case the exactions, whether they are called “taxes” or not, are ordered to be paid over to the railroad company in such way as to take them out of section 268, making the State liable to refund them, and in doing so deprives the parties of any adequate alternative remedy. If I am right in this, and it seems to me that there cannot be two opinions, then this decision certainly makes a great advance beyond what was decided in the cases of The Treasurer and of G-aillard, for in both of them the taxes being public State taxes, there was clearly the right to make the State refund, and for that very reason it was held that the act only “postponed” the question of illegality, leaving that to be determined in the “other remedy.” A Tennessee act of 1844 declares a deed'made in pursuance of a public “sale for taxes” prima facie evidence of *88the prerequisites of the law. A party claimed under a town corporation tax sale, and the Supreme Court of that State held that the corporation tax sale was not within the law. Judge Turley says: “Corporation taxes are not public, but private taxes, and are therefore not embraced within the act, but as to the remedy for collection are left as it existed prior to the passage of ' the act.” Shoalwater v. Armstrong, 9 Humph., 217; Black. Tax Tit., 84.
If it should be the decision of this court that section 269 must apply to this case simply because these exactions for a railroad are called “taxes,” without inquiring whether the parties are entitled to the alternative remedy against the State, it will indeed be a speedy realization of the fears of Chief Justice Moses expressed in his dissenting opinion in the case of The Treasurer: “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 ease 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 make it tributary to the unrestrained demands of the legislature,” &c.
I think this court should now declare section 269 of the General Statutes to be unconstitutional; or if it is too late to do so, that it should declare that said section was never intended to apply to a case like this, where the provision for an alternative remedy against the State does not exist; and that the decree should be set aside and the cause remanded to the Circuit, to be heard like other cases, only upon the merits involved.
Judgment affirmed.