Mathis v. Jones

• Decision Date: 08 October 1890
• Citation: 84 Ga. 804,11 S.E. 1018
• Parties: Mathis . v. Jones.
• Court: Georgia Supreme Court

11 S.E. 1018

84 Ga. 804

Mathis .

v.Jones.

Supreme Court of Georgia.

Oct. 8, 1890.

Fences—Constitutional Law.

1. The Code, as moulded and modified by general legislation on the subject of fences, has established an optional system of fence law, general in its nature, and of uniform operation throughout the state. This being so, there is no power to legislate specially for two militia districts so as to dispense as to them with the popular vote, provided for in the Code of 18S2, the constitution of 1877 declaring that "laws of a general nature shall have uniform operation throughout the state, and no special law shall be enacted in any case for which provision has been made by an existing general law."

2. It follows that the act of December 26, 1888, (Pamph. Acts, p. 320,) requiring unconditionally that, all domestic animals be kept from running at large in the l, 002d and 1, 070th districts, G. M., in Macon county, and declaring their owners liable for any damage done upon the lands of other persons, is unconstitutional and void.

(Syllabus by the Court.)

Error from superior court, Macon county; Fort, Judge.

Hinton & Cutts, for plaintiff in error.

Simmons & Kimbrough, for defendant in error.

Bleckley, C. J. The matter now contained in the Code of 1882, §§ 1443-1448, corresponding to sections 1456-1461 of Irwin's Revised Code, constituted the general fence law of the state when the act of 1872 was passed. Lawful fences, then recognized by the Code, were to be of rails, palings, ditches, or navigable water-courses. The act of 1872 declared that "in each and every county of this state which shall adopt the provisions of this act in the manner hereinafter provided, chapter 8, pt. 1, tit. 15, of Irwin's Revised Code of Georgia, embracing sections 1456, 1457, 1458, 1459, 1460, and 1461, be, and the same is hereby, repealed, and the boundary lines of each lot, tract, or parcel of land in said county shall be, and the same are hereby, declared a lawful fence." The act then prescribed a system of local option by which each and every county in the state could adopt its provisions by means of a popular election, on the same terms as to all. It required that domestic animals should not be allowed to run at large beyond the lands of their owners in counties voting to adopt the act, and subjected the owners to answer for all damages done upon the premises of other persons. Acts 1872, p. 34; Code 1882, § 1449 et seq. This act passed into the Code of 1873: and section 1455 of that Code was amended by the act of August 26, 1881, but only as to certain details in respect to ordering and holding elections. Acts 1880-81, p. 60; Code 1882, § 1455. By the act of September 29, 1881, the provisions of the general fence law in respect to local option were extended and made applicable to all militia districts. Acts 1880-81, p. 79; Code, § 1455a. The original Code, touching fences, and these local option statutes ingrafted upon it, are in pari materia, and are to be taken together as one statute. The Code of 1882 is consequently to be read, construed, and applied as if there never had been but one statute on the subject, and as if that statute had contained originally the local option feature, applicable alike to all the counties and militia districts of the state. In this condition of the general law, the general assembly, by an act passed December 26, 1888, (Pamph. Acts, p. 320,) required unconditionally that all domestic animals be kept from running at large in the l, 002d and 1, 070th districts, G. M., in Macon county, and declared their owners liable for any damage done upon the lands of other persons.

1. The constitutionality of this last act is the question now for determination. The constitution of 1877, art. 1, § 4, declares: "Laws of a general nature shall have uniform operation throughout the state, and no special law shall be enacted in any case for which provision has been made by an existing general law." The law embraced in the Code of 1882 for the exercise of local option as to fences is a general law, having uniform operation throughout the state, notwithstanding it embodies the option principle to be exercised locally and separately by each county or each militia district. "We think the sounder view, and the one which must finally prevail, is that laws of this character are rightly classified as general, and as having uniform operation. Gordon v. State, 46 Ohio St. 607, 23 N. E. Rep. 63; Paul v. Gloucester Co., 50 N. J. Law, 585; same case, under the name of State v. Circuit Court, 15 Atl. Rep. 272; State v. Pond, 93 Mo. 606, 6 S. W. Rep. 469. A decisive proof that such laws are not local or special, within the meaning of the constitution of 1877, is that, by another provision of the same constitution, every local or special bill has to be advertised beforehand in the locality where the matter or thing to be affected may be situated. Code, § 5075. There could be no reason for advertising in one locality rather than in another the intention to apply for a law which affects all localities, and all of them alike. The bill for such a law, if advertised at all, would have to be advertised all over the state. We can say with certainty that the constitution does not contemplate or provide for giving any previous notice as a preliminary to the enactment of a law of this character. Yet it expressly requires local or special bills to be advertised without exception, and the only constitutional reason which can be given why a local option bill for the whole state could be introduced and passed without previous notice is that such a bill would be general, and not local or special. Another test by which general laws may easily be distinguished from those which are local or special is that the former, unless altogether temporary, would naturally and properly belong to the general body of statute law, and would constitute proper matter for codification. The Code is a fit place for all permanent laws territorially general. Under this test, there can be no doubt that the local option fence law is a general law. Any intelligent person, whether a lawyer or not, would say that it was fitly inserted in the Code, first of 1873, and again in that of 1882. Every reader whose opinion on such a question would be worth regarding would expect to find it in every successive edition of the Code, so long as it stands unrepealed; and, being a general law for the whole state, it is necessarily general in its nature. The words of the constitution are: "Laws of a general nature shall have uniform operation throughout the state, and no special law shall be enacted in any case for which provision has been made by an existing general law." The generality here spoken of is territorial generality. This is indicated by the words "throughout the state." A law may take its general nature either from its territorial comprehensiveness or...