Goodale v. Sowell

• Decision Date: 25 February 1902
• Parties: GOODALE et al. v. SOWELL et al.
• Court: South Carolina Supreme Court

40 S.E. 970

62 S.C. 516

GOODALE et al. v. SOWELL et al.

Supreme Court of South Carolina

February 25, 1902

Appeal from common pleas circuit court of Chesterfield county; Gary Judge.

Action by Alexander Goodale and others against Ervin Sowell and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

The circuit decree is as follows:

"This is an action on the equity side of the court for an injunction, brought by the plaintiffs, as taxpayers and citizens of that section of Chesterfield county embraced in the act of the general assembly of this state exempting said section from the provisions of the general stock law. The action is against certain commissioners created under and by Act 1899, p. 172, entitled 'An act to provide for commissioners to superintend the stock law fence around that portion of Chesterfield county exempted from the operation of the stock law, and to provide for the maintenance of the said fence, and to punish parties destroying or injuring it,' to enjoin said commissioners from repairing and reconstructing said fence around said section, and from approving accounts for the building of the said fence and making further contracts for said work; and also against the county treasurer, I. P. Mangum, enjoining him from paying out funds in his hands for said purpose; and to enjoin the board of county commissioners from approving accounts for such work, and giving orders on the county treasurer for the payment of such accounts. The contention of the plaintiffs is that the act of 1899, as well as the previous acts of the general assembly exempting certain portions of Chesterfield county, are unconstitutional in the following particulars: (1) Private property is taken for the use of private purposes, without the consent of the owners or without making just compensation therefor. (2) That they tend to abridge the privileges and immunities of citizens of this state, and to deprive persons of their property without due process of law, and to deny to persons within the state the equal protection of the laws. (3) That the act of 1899 is unconstitutional, in that it seeks to except certain persons from an exemption granted to others of the same class in the same territory, under like circumstances, by leaving it to the arbitrary will of the commissioners created by said act whether they will allow any particular persons of this class to come within the exemption, which they may refuse or deny to another; also in that said provision operates unequally upon persons within its territorial limits of the same class by allowing (if the commissioners see fit to do so) those who can afford to make an extra fence to put themselves within or without the exempted section of said county.

To better comprehend the issues involved, it will be necessary to give a brief history of the legislation on this exempted section. In 1886 the general assembly enacted an act which provided that this section of said county should be exempt from the provisions of the general stock law: provided, that the residents of said section 'shall build and keep in good repair a fence along the lines above described, such fence to be fully five feet high at every point, if built of rails; also to be well staked and ridered and sufficiently strong and close to protect the lands outside of said territory from the invasions of all stock and animals mentioned in the general stock law.' The act further provided that 'this exemption shall not take effect till said fence is completed, and shall cease as soon as there is a failure to keep said fence up at any point: provided, further, that said fence be completed on or before the 1st day of January, 1889; and in case of failure to complete it by that time that then this exemption shall not apply.' Acts 1887, p. 998. In the agreed statement of facts used at the hearing of the cause appears the following: 'That the fence provided for in the acts of 1886 and 1887 was never built, in respect to height, in compliance with the terms of the said acts, nor has the same as built been maintained at all times,--at times the said fence having been completely down along most of the line, and at places there has been no fence for several years; but the inhabitants all acquiesced in and acted upon the exemption with the fence as built until within the past five years. That the commissioners under the act of 1899 are building and threatening to continue to build the fence around the sections purporting to be exempt from the general stock law. That no compensation has been paid, or provided by law to be paid, for the right of way for the inclosure, nor for the use of the land inclosed. That a large portion of the residents of the section purported to be exempt are farmers who raise stock, and a comparatively small per cent. of the land is under cultivation. That when this portion of the county was first exempted from the provisions of the stock law under Acts 1886 and 1887, no objection was made to the proposed exemption, and a large majority of them consented either expressly or tacitly to same, and all acted under said exemption in good faith until within the last five years, but numbers of them now object; and other parties who have moved into said section and bought property there never have consented, but object to same. The fence, as built under Acts 1886 and 1887, was located only on lands of persons consenting to same, and the commissioners appointed under the act of 1899 do not propose to build the fence on the land of any who object to such location. It is further agreed that a small number of persons owning property in the section purporting to be exempt objected to the exemption prior to the act of 1899, and the line of the old fence is now on the lands of some of these parties, but it was consented to when placed there by parties then owning the land. Under the above as the existing facts, both parties desire to test the constitutionality of the several acts of the general assembly herein referred to. By a consent order the claims for building fence up to the commencement of the suit have been paid.'

By a comparison of the acts of 1886 and 1887, it will be seen that the provisions of the two acts are very similar; the act of 1887 changing somewhat the course of the fence, which was also required to be five feet high at every point, but was not required to be staked and ridered, as in the first act. The following exemption, however, is found in both acts 'That this exemption shall not take effect until said fence is completed, and shall cease as soon as there is a failure to keep said fence up at any point.' It is admitted that such a fence as the act prescribed was not built, nor was the same built within the time limited by said act. A fence was, however, built to which the residents of that section made no objection, and a large majority of them acquiesced in the same for a while. Since that time, however, the fence has not been kept up, and a portion of the time it has been down completely for several years, and I believe has been destroyed (as stated in argument) by fire. This state of affairs existed till 1899, when the General Assembly passed an act under which the commissioners are now operating, the purpose of which was the rebuilding, repairing, and reconstructing the old fence. At this stage of the case my conclusion is, that the exemption from the provisions of the general stock law contemplated by the acts of 1886 and 1887 were conditional, and, those conditions not having been complied with, there was no exemption. Those acts expressly provide 'that this exemption shall not take effect until said

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