92 Ga. 692 | Ga. | 1893
Smith sued Oatts for the recovery of two hogs, and the case was submitted to the court below upon the following agreed state of facts : Oatts bought the hogs at a sale by the marshal of Swainsboro, Ga., under an ordinance passed by the mayor and council of that town, in pursuance of the powers granted by the charter of the town, authorizing its local authorities to impound hogs, etc., when found running at large on the streets. The plaintiff’s hogs, were found by the marshal on the
The court below held that the amendment to the charter (Acts 1890-91, vol. 2, p. 733) was unconstitutional, and to this ruling the plaintiff excepted.
The 10th section of the charter declares that the mayor and council “ may regulate or prohibit the running at large in said town of any horses, mules, cattle, hogs, dogs or other animals or fowls, and prescribe penalties therefor.” (Acts 1887, p. 527.) To this the amendatory act in question added the following : “ Provided, that the authorities of said town shall not exercise the powers conferred by this section, over or upon the property or live stock of such persons as do not reside within the corporate limits of said town.” And it is enacted “ that all laws and parts of laws in conflict with this act be and the same are hereby repealed.” It was contended that the amendment is void, (1) because it is unreasonable, it being impossible for the town authorities to distinguish between the property of non-residents and that of residents of the town when found at large on the streets, and (2) because it is class legislation, as it discriminates in favor of non-residents.
Whether it be true or not that the amendment and the section amended cannot stand together for these reasons, it does not follow that the amending act itself
Another objection to the amending act. was, that “it is repugnant to that clause of the constitution which inhibits any special legislation that, contravenes a general law,” inasmuch as section 4095 of the code empowers the authorities of any town or city to abate and remove nuisances, and as the running at lai'ge of hogs, etc., is a nuisance. The act, however, does not seek to limit the powers granted by this general law, but only such as are granted by another special act; and the power to take up and sell hogs found running at large in the streets is not granted by the general law.
These being the only objections urged against the validity of the amending act, and no other ground appearing which would require us to hold it invalid, it follows that the court below erred m so holding.
Judgment reversed.