36 S.C. 445 | S.C. | 1892
The opinion of the court was delivered by
The general stock law prohibited all owners of stock from allowing their stock to roam at large, outside of their own land, on pain of being liable to pay damages to persons upon whose lands the roaming stock may trespass. From the passage of that act down to the present time, successive efforts have been made to exempt from the operation of that law a large portion of Lexington County, described rather vaguely, but in all said to contain about 150 square miles, and known as the‘‘Big Pasture.” There have been so many acts, and amendments on the subject, that, in order to prevent confu- • sion, it will be necessary, in the first place, to ascertain clearly how the matter of legislation now stands.
The act of 1887 purports to be only an amendment, but as it repeals all former acts inconsistent with it. we will not attempt to go behind it. That act (1887, 19 Stat., 1057) provides as follows: ‘‘That all that portion of Lexington County known as the ‘Big Pasture,’ embracing portions of certain townships [naming them] as is now fenced off in a common pasture, be, and the same is hereby, exempt from the operation of the provisions of chapter XXVII. of the General Statutes relating to the stock law, so long as the fences around said section are kept in good and substantial condition, sufficient to hinder the escape of stock therefrom,” &e. Section 3 exempts another portion of Lexington, but it was repealed by the act of 1889, to which we will refer hereafter. “Section 4. That it shall be the duty of the
The act of 1889 (20 Stat., 528), section 3, provides: “That all that portion of said county lying within the following boundaries [describing them], containing about 75 square miles, be, and the same is hereby, exempted, &c., &c. Provided, that the residents of the portion named as aforesaid shall build a fence along the lines described, exempted as aforesaid, sufficiently strong and close to protect the land outside of said pasture from the incursion of all stock and animals named in the general stock lawr. Provided further, that said change shall not go into operation or be effectual until the following conditions be complied with. That is to say, until the question of said change shall be determined by a vote of the freeholders living within the lines aforesaid, at an election to bo held for that purpose; and further, that said change shall only take place after said election, and when it shall be ascertained by the same that two-thirds of the freeholders living within the boundaries of the proposed additional territory to be exempted as aforesaid, shall have voted therefor. * * * Said election shall be conducted after the manner of general elections within this State; return to be made to the county commissioners, who shall appoint the managers to conduct the said election. Upon the ballots to be used shall be written the words ‘fence’ or ‘no fence;' and if it shall appear upon counting the same, that two-thirds majority of the said ballots are for ‘fence,’ then the
These are the acts which we are to consider. It will be observed that none of these provisions make any reference to an election by the freeholders of the section to be exempted, except the act of 1889, section 3. The purpose of that act was not to exempt any portion of the “Big Pasture” proper, but of “additional territory,” indicating the outside boundary line, and supposed to contain about 45 square miles. We rather incline to think it was the intention of this act to limit the provision as to an election to the territory therein considered. The words are, “when two-thirds of the freeholders living within the boundaries'of the proposed additional territory to be exempted as aforesaid, shall have voted therefor,” &c. But 'it seems that the county commissioners of Lexington construed the provision (1889) as applying to all portions of the county exempted previous to the passage of that act, including the “Big Pasture” proper. An election was ordered, which should have been conducted after the manner of general elections in the State; which, however, seems to have been conducted very irregularly ; but the managers having returned that 55 votes were cast — 44 for “fence” and 11 for “no fence” — the commissioners were about to commence proceedings for the right of way and timber under, the act of 1887, unless restrained from so doing.
It appears that one of the lines of the “Big Pasture” must run through and divide into two parcels a large tract of land (6,0u0 acres) lately belonging to William Fort, deceased, and now in the care of James C. Fort, the plaintiff, who instituted this proceeding, seeking to enjoin the further proceedings of the defendants to establish said pasture upon various grounds, which are all stated in the complaint; and among others especially, that the acts of the legislature relied upon to authorize the proceedings are unconstitutional and void, first, because the manifest purpose of these acts is to create and establish a public pasture for private individuals to pasture their stock and cattle upon ; and that payment for the right of way to run the fence of the proposed boundary would be no compensation for the use of his lands and premises mentioned and described in the complaint; and there would be
There was no verbal' testimony, but documentary evidence and some affidavits were offered, only one of which need be stated. It is that of L. S. Hooker, who was one of the managers of the election before referred to (and it should appear in the report of the case). The following statement of facts was agreed upon and submitted to the Circuit Judge at the trial: ‘'First. That the act of 1886, being the original act creating an exemption from the general stock law of chapter XXVII., General Statutes of South Carolina, in connection with section 3 of the amendatory act of 1887, affecting certain portions of Lexington County, has never been carried out, in that the residents within the exempted portions have never built the fence as required of them under said act of 1887, they having built portions thereof, but in several instances failing to connect said portions built and the spaces so left open, varying in lengths. Second. That this fence never having been completed so as to prevent the escape of stock from the intended exemption, the county commissioners considered that the law had not been complied with by the people, and that they had no jurisdiction in the premises, and that they had no right to levy the tax and make the repairs as required of them under section 4 of the act of 1887 ; and that the county commissioners have in no wise taken jurisdiction under either of the acts in relation to said exemption, except in that they ordered the election under the act of 1889. * * * It is further agreed that any constitutional question raised by either side should be fully heard, even if not raised in the pleadings.” This was agreed to by the defendants, with the qualification, that, so far as known, the “fence” was not completed in one small space.
The cause was heard by his honor, Judge Kershaw, who held as follows : “The plaintiff, on behalf of the estate he represents, situated within said section (proposed to be exempt from the oper
Fiom this decree the defendants appeal to this court upon the following exceptions: “First. Because, it is respectfully submitted, that his honor erred in not holding that the acts of 1886, 1887, and 1889, referred to therein, did make ample provision and remedies for the payment to plaintiff of any damage or loss he might sustain by reason of the ‘Big Pasture fence’ being located on the lands in his possession. Second. Because, it is respectfully submitted, that his honor erred in holding that the said acts are repugnant to the express provisions of the Constitutions, both State and Federal.”
We can hardly think that there is any force in the election ordered to be held by those living within the boundaries of the proposed enclosure. That election was very irregular, and in several respects not in conformity to the law. See the affidavit of manager, L. S. Hooker. But if it had been otherwise, we cannot say that it would have changed the result. The principal object of several of the restrictions in the Constitution was. to protect the rights of individuals and of minorities.
We agree with the Circuit Judge, when he said that “as early as the case of Bowman v. Middleton (1 Bay, 250), it has been held in this State that such acts are void, ‘because contrary to natural right and the fundamental principles of our government.’ ”
The judgment of this court is, that the judgment of the Circuit Court be affirmed.