Carter v. Barnes

• Decision Date: 06 October 1910
• Citation: 68 S.E. 1054,87 S.C. 102
• Parties: CARTER v. BARNES. MILEY v. GOODWIN.
• Court: South Carolina Supreme Court

68 S.E. 1054

87 S.C. 102

CARTER v. BARNES.

MILEY v. GOODWIN.

Supreme Court of South Carolina

October 6, 1910

Appeal from Common Pleas Circuit Court of Colleton County; S.W. G Shipp, Judge.

Actions by A. L. Carter against Willie Barnes and by J. B. Miley against B. B. Goodwin. Judgment for defendants in each case and plaintiffs appeal. Reversed.

Padgett Lemacks & Moorer, for appellants. Howell & Gruber, for respondents.

WOODS J.

The facts of this litigation are thus stated in the record "This was a claim and delivery proceeding, commenced by the plaintiff against the defendant, for the recovery of four pigs, before P.J. Wilson, Esq., magistrate, in April, 1909. The property sought to be recovered was owned by the plaintiff, and was taken up by the defendant while roaming at large upon the lands of the defendant. The defendant seized the same under the provisions of the general stock law; the defendant's farm, whereon the said hogs were seized, lying partly within the county of Colleton and partly within the county of Bamberg, the boundary line separating the said counties running through the defendant's farm. The hogs were seized on that portion of the defendant's farm lying within the county of Colleton, and within the territory embraced in subdivision 1 of section 1509 of the Code of Laws of 1902." The appeal depends on the single question whether subdivision 1 of section 1509 of the Civil Code of 1902, relating to exemptions from the general stock law in Colleton county, is constitutional. The magistrate, holding the subdivision to be constitutional, entered judgment in favor of the plaintiff. The circuit judge came to the opposite conclusion, and reversed the judgment of the magistrate.

Section 1509 of the Civil Code of 1902 provides: "The following portions of Colleton county are exempted from the operations of article 1 of this chapter relating to the general stock law." Then follow five subdivisions of the section, each exempting a different portion of the county. Subdivision 1, which covers the territory in which the pigs here sued for were taken up, is as follows: "All that portion of Colleton county bounded north by the Edisto river, south to the Little Salkahatchie and Combahee rivers, east by Charleston & Savannah Railway and west by the Barnwell line on the Edisto river, and running thence to the Little Salkahatchie river along the said Barnwell line." Standing alone, there could be no doubt of the constitutionality of this exemption. Goodale v. Sowell, 62 S.C. 524, 40 S.E. 970; Brown v. Tharpe, 74 S.C. 207, 54 S.E. 363; Sanders v. Donnelly, 86 S.C. 94, 67 S.E. 1070. But subdivision 5 of section 1509 imposes the unequal burden of building and maintaining a fence, and it is conceded that by the imposition of this burden subdivision 5 was made unconstitutional. Sanders v. Venning, 38 S.C. 502, 17 S.E. 134; Sanders v. Donnelly, supra.

The contention of the respondent is that the unconstitutional burdens imposed by subdivision 5 are not limited to the territory therein described, but apply to all the exemptions of section 1509, and that therefore there is no statutory exemption from the operation of the stock law of force in Colleton county. This position is clearly untenable. We quote so much of subdivision 5 as is necessary to make clear the point involved. "All that portion of Colleton county formerly known as St. Paul's parish, and so delineated on the old plats of the state, is exempted from the operation of the general stock law, as enacted in article 1 of this chapter: Provided, this section shall not apply to that portion of said parish lying below a line running from the upper line of Stephen Barnwell's plantation at or near Wilton Bluff, on Pon Pon river, to a point on Toogoodoo creek at or near Toogoodoo Bridge and down said creek to where the same enters into the North Edisto river: Provided, further, that the citizens of the territory exempted under the provisions of this section shall build a fence from the said point on Pon Pon river to the said point on Toogoodoo creek, separating the portion above described from the portion exempted under the provisions of this section, and construct a proper gate at said Toogoodoo Bridge to prevent the passage of animals. Said fence to be kept up to the height of four and one half feet."

The word "section," when used in...