State v. Higgins

Citation28 S.E. 15,51 S.C. 51
Decision Date23 October 1897
CourtUnited States State Supreme Court of South Carolina

Habeas corpus by Peter Higgins. Prisoner discharged.

Huger Sinkler, for petitioner.

C. P Townsend, for the State.


This was an application, addressed to this court in the exercise of its original jurisdiction, by the defendant for a discharge under a writ of habeas corpus. It appears from the sheriff's return to the writ that the defendant was committed to his custody "by virtue of an order of arrest for the violation of Act No. 98, Laws of 1896, in that, being a citizen of the county of Charleston, he did catch fish for profit in the waters of Berkeley county, to me directed, a copy of which annexed transmit to you." The only question made at the argument of the case was whether the act mentioned was in violation of the constitution. It was contended on the part of the defendant that the act in question violated two of the provisions of the constitution which went into effect "from and after the thirty-first day of December in the year of eighteen hundred and ninety-five." These two provisions are: First, section 5 of article 1, which reads as follows: "The privileges and immunities of citizens of this state and of the United States under this constitution shall not be abridged, nor shall any person be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws;" second, section 34 of article 3, which contains among others, the following provisions: "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: *** To provide for the protection of game. (2) In all other cases, where a general law can be made applicable, no special law shall be enacted."

The act of 1896, which is claimed to be in violation of these two sections of the constitution, is entitled "An act to further regulate fishing for profit in the waters of this state," and contains the following provisions: Section 1: "That after the passage and approval of this act, it shall not be lawful for a citizen of one county to fish for profit in the waters of another county without first obtaining therefor from the treasurer of the county in which he intends to so fish, a license to do so." The second section simply prescribes the price of such license, and the fund to which it shall be appropriated, and therefore is not pertinent to the present inquiry. The third section of act reads as follows: "That this act shall not apply to any counties in this state other than the counties of Colleton and Berkeley." The fourth section of the act provides the punishment for violating the provisions of the act, and its terms throw no light upon the question which we are to determine. The terms of this act are peculiar; for while its title and the provisions of the first section clearly make it a general law, applicable to fishing in any waters of this state, within any of the counties of the state, the provision in the third section expressly confines its operation to the two counties therein specified, thereby clearly making the act a local or special law. There is another peculiarity about this act; for the phraseology employed in the third section leaves it at least doubtful whether the intention was to prohibit the citizens of Colleton and Berkeley counties alone from fishing for profit in the waters of any other county without a license, as would seem to be the logical inference, inasmuch as the terms of the first section expressly apply to the citizens of every county in the state while the terms of the...

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