| S.C. | Feb 25, 1902
February 25, 1902. The opinion of the Court was delivered by
This appeal involves the constitutionality of certain statutes exempting portions of Chesterfield County from the operation of the general stock law. The facts are fully set out in the decree of his Honor, the Circuit Judge, which will be reported. The conclusions announced in that decree, for the reasons therein stated, supersede the necessity on the part of this Court for an extended discussion of the questions under consideration; especially as the Court has already passed upon the constitutionality of similar statutes in the cases of Utsey v. Hiott,
First. It is not unconstitutional for the legislature to enact a statute exempting certain portions of a county from the operation of the general stock law.Utsey v. Hiott,
Second. The exemption of certain sections of a county from the operations of general stock law is not the taking of the property within the exempted territorial limits either for a public or private purpose, in the sense of the Constitution of 1868 or 1895, although the principal effect of the statute is to convert the lands therein into a common pasture.
Third. The requirement in the acts of 1886, 19 Stat., 500, and 1887, 19 Stat., 997, that the residents of the exempted section should build and keep in good repair a fence along the lines therein described, was unconstitutional, because it was for a private purpose, and was the taking of the property of those upon whose land the fence was required to be built, without compensation and without their consent; it was likewise the taking of the property of the residents within the exempted section without compensation and without their consent, by requiring them to build said fence.
Fourth. The right to compensation being personal to the *525
owners of the land upon which the fence was required to be built and to the residents within the exempted territory, they had the power to waive this objection to the constitutionality of the acts. State v. Faile,
Fifth. While they had the right to waive this objection to the constitutionality of the acts, they did not have the power to cause the acts to become operative except by compliance with the conditions therein expressed; nor did they have the power to cause the acts to continue in existence after they had ceased to be operative by reason of the failure to comply with the conditions therein expressed, and upon which they were to remain of force. In 23 Enc. of Law, 221-2, it is said: "It is competent for the legislature to enact a law the ultimate operation of which may by its own terms be made to depend upon a contingency * * * And the statute cannot be made effective before the event happens by any acts or series of supplements passed upon the assumption that the event has happened and that the law is in force." When the statute of 1899, 22 Stat., 172, was enacted, the acts of 1886 and 1887 were inoperative and without force and effect.
Sixth. The act of 1899, 22 Stat., 172, was not only inimical to the Constitution for the reasons hereinbefore stated, but was likewise unconstitutional in that it conferred upon the commissioners in terms expressed on the face thereof arbitrary powers of discrimination against the rights of those living on the outside or inside who might desire to be excluded or included within said fence.Yick Wo v. Hopkins,
Judgment affirmed. *526