Scarbrough v. Wooten.

• Decision Date: 21 January 1918
• Docket Number: No. 1977.,1977.
• Citation: 23 N.M. 616,170 P. 743
• Parties: SCARBROUGHv.WOOTEN.
• Court: New Mexico Supreme Court

23 N.M. 616

170 P. 743

SCARBROUGH

v.WOOTEN.

No. 1977.

Supreme Court of New Mexico.

Jan. 21, 1918.

Syllabus by the Court.

It was the evident intention of the Legislature to incorporate in the codification of 1915 only laws of a general and permanent nature.

A “general law” is one which relates to a subject of a general nature, or that affects all of the people of the state, or all of a particular class.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, General Law.]

A statute relating to persons or things as a class is a general law; one relating to particular persons or things of a class is special.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Special Law.]

The prohibition contained in section 24 of article 4 of the Constitution in the matter of local or special laws regulating precinct affairs has reference to such affairs as concern precincts in their governmental or corporate capacity, with which chapter 94, Laws 1909, is not concerned.

The constitutional provision that in every case where a general law can be made applicable no special law shall be enacted leaves a discretion with the Legislature to determine the cases in which special laws should be passed.

Held, that chapter 94, Laws of 1909, is a special act, but one not within the inhibition of the Constitution (section 24, art. 4) because a general act could not be made applicable.

Chapter 94, Laws 1909, prohibits trespass by live stock and subjects owners to liability for damages without regard to whether trespass was willful.

Hill v. Winkler, 21 N. M. 5, 151 Pac. 1014, distinguished.

Appeal from District Court, Quay County; T. D. Leib, Judge.

Action by J. M. Scarbrough against J. E. Wooten. From a judgment of the district court affirming a judgment of justice court for plaintiff, defendant appeals. Affirmed.

This was an action for the recovery of damages alleged to have been done to the lands of the appellee by the grazing of sheep belonging to the appellant. The action was instituted in the justice court of precinct No. 20 of Quay county, N. M., under the provisions of chapter 94, Laws of 1909. The trial in the justice of the peace court resulted in a judgment for appellee of $15 and costs, and on appeal to the district court a judgment for the same amount, with costs, was duly entered, from which judgment this appeal was taken.

It was the evident intention of the Legislature to incorporate in the codification of 1915 only laws of a general and permanent nature.

R. A. Prentice, of Tucumcari, for appellant.

J. D. Cutlip, of Tucumcari, for appellee.

HANNA, C. J.

The right of the plaintiff in the district court to recover, and his right to sustain the judgment there given, depend upon whether or not chapter 94 of the Session Laws of 1909, which is not included in the codification of 1915, was repealed by the repealing clause of the codification, and therefore no longer in effect. The repealing clause, so far as it is necessary to make reference thereto, is as follows:

“All acts and parts of acts of a general and permanent nature, not contained in this codification, are hereby repealed,” etc. Code 1915, p. 1665.

If chapter 94, Laws 1909, be an act of a “general and permanent nature,” there can, of course, be no doubt that it was repealed by not being included in the codification of 1915. The act provided for a herd law in the counties of Quay and Roosevelt and that portion of the county of Guadalupe lying east of the Pecos and Gallinas rivers. It provided that the inhabitants of any precinct in the counties or portion thereof referred to might prohibit the running at large of cattle, horses, etc., within every such precinct in the manner therein provided.

[1] The Legislature in the repealing and saving clause of the codification evidently used the words “acts of a general or permanent nature” in contradistinction to the designation “local or special laws” as used in the Constitution. It was the evident intention of the Legislature to incorporate in the codification of 1915 only laws of a general and permanent nature, doubtless for the reason that the local or special laws, not being of interest to the entire public, might well be omitted from the codification. If the act of 1909 be not of a general or permanent nature, the question arises as to whether it is a local or special law, which the Legislature is prohibited from passing, or whether it is a local or special law applying to conditions where a general law can be made applicable, and therefore within the inhibition of the Constitution.

[2][3] This court defined a general law in the case of State v. A., T. & S. F. Ry. Co., 20 N. M. 562, 151 Pac. 305, in the following language:

“A ‘general law’ is one that relates to a subject of a general nature, or that affects all of the people of the state, or all of a particular class.”

As was pointed out in the case last referred to, a law may be general and yet be intended to operate on a limited number of persons or things or within a limited territory, and in so far as this is true, the law thereby assumes characteristics usually associated with local or special legislation. We pointed out a test for a determination of whether or not a law was general, although limited in its application to persons or things, and that test is usually referred to as classification. As was stated in our earlier opinion:

“A statute relating to persons or things as a class is a general law; one relating to particular persons or things of a class is special”-quoting from Lewis' Sutherland, Stat. Const. 195.

[4] Applying these principles to the case at bar, it becomes evident that the act of 1909, is not a general law. There was no attempt at classification in the act in question and it is doubtful whether any intelligent scheme for classification could have been involved which would apply to the purposes of the act. Therefore the act must be considered and treated as a local or special law. It is not necessarily in violation of the constitutional provision, however. The Legislature is prohibited from passing local or special laws in certain enumerated cases, with only one of which we are now concerned, viz. regulating county, precinct, or district affairs. It is our opinion that the act of 1909 does not attempt to regulate county, precinct, or district affairs.

In the case of Hankins v. Mayor, 64 N. Y. 18-22, it was held that county affairs are those relating to the county in its organic and corporate capacity and included within its governmental or corporate powers. Likewise in the case of Morrison v. Bachert, 112 Pa. 322, 5 Atl. 739, it was held that the affairs of counties are such as concern counties in their governmental or corporate capacity. Both of these cases had to do with...