Sloan v. Fair
| Decision Date | 04 May 1934 |
| Docket Number | 13842. |
| Citation | 174 S.E. 436,172 S.C. 485 |
| Parties | SLOAN v. FAIR et al., Game and Fish Commission. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Greenville County; T. S Sease, Judge.
Action by C. E. Sloan, on behalf of himself and all other citizens residents, and taxpayers of Greenville County, against Dr. C H. Fair and others, composing the Game and Fish Commission of Greenville County. From a decree enjoining defendants from exercising any authority or control in the matter of game and fish in such county, they appeal.
Affirmed.
The decree of Judge Sease follows:
The plaintiff, a citizen, resident, and taxpayer of Greenville county, brings his action on behalf of himself and all other citizens, residents, and taxpayers of said county, against the defendants, the game and fish commission of Greenville county, challenging the constitutionality of the Act approved March 26, 1932, 37 St. at Large, p. 1352 under which said defendants derive their powers. The resident judge of the Thirteenth circuit being disqualified, the case was argued and heard before me in Spartanburg, as the next nearest judge.
The complaint of plaintiff alleges that the appointment or election of the game and fish commission of Greenville county is a matter of public interest, in which all citizens including plaintiff, have a right to object to an unlawful commission, and that the attempted exercise of the powers claimed by said commission is a violation of the Constitution of this state, and is void for the following reasons:
(a) Said act violates the provisions of article 3, § 34, subd. 6, of the Constitution, in that it is special legislation in regard to the game laws of the state.
(b) Said act is unconstitutional in that it violates the provisions of article 3, § 34, subd. 9, of the Constitution, which prohibits the enactment of a special law where a general law can be made applicable.
(c) That the act is void in that it undertakes to confer under the game and fish commission of Greenville county legislative powers, in contravention of article 3, § 1, of the Constitution.
Article 3, § 34, of the Constitution of 1895, provides as follows:
"The General Assembly of this State shall not enact local or special laws concerning any of the following subjects or for any of the following purposes, to wit: * * *
VI. To provide for the protection of game. * * *
IX. In all other cases, where a general law can be made applicable, no special law shall be enacted.
X. * * * Provided, That nothing contained in this Section shall prohibit the General Assembly from enacting special provisions in general laws." Defendants claim their powers from an Act of the General Assembly of this state, approved March 26, 1932, 37 St. at Large, p. 1352. Section 1 of this act provides that a majority of the delegation of Greenville county are authorized and empowered to appoint a game and fish commission for Greenville county upon the recommendation of the Greenville County Fish and Game Association, and the Piedmont Fox Hunters' Association; said commission to consist of five members. Section 2 provides that said game and fish commission shall perform all duties and powers relating to game and fish in Greenville county now performed by the Greenville county delegation in the General Assembly.
In the Code of 1932, § 1790, subd. 3, it is provided that all funds hereafter collected in the various counties of this state from the sale of hunters' licenses and from the fur tax, which have been paid into the county school fund heretofore, shall be used, subject to the control of a majority of the county delegation, either for the protection and propagation of game and fish or for school purposes (as now provided by law), or for both, the same to be used in the county where collected.
Section 3286, Code of 1932, provides that the Governor shall appoint, upon the recommendation of the legislative delegation of the several counties, fish and game wardens.
My opinion is that the Act of March, 1932, under which defendants claim their powers, is in direct conflict with subdivision 6 of section 34, art. 3, of the Constitution which provides that the General Assembly shall not enact a special law, providing for the protection of game, and, for this reason, is unconstitutional, null, and void. My opinion is, further, that defendants' contention that the present act may be sustained as a special provision in a general law under subdivision 10 of section 34, art. 3, is untenable.
Where there is an express prohibition in the Constitution concerning which special laws shall not be enacted (such as there shall be no special law affecting game), the proviso in subdivision 10 of Article 3, § 34, "That nothing contained in this Section shall prohibit the General Assembly from enacting special provisions in general laws," is not applicable, and therefore the Greenville county game law cannot be sustained under this proviso (as a special provision in a general law). See dissenting opinion of Justice Marion, ...
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