State v. Tucker

• Decision Date: 24 February 1899
• Parties: STATE. v. TUCKER et al.
• Court: South Carolina Supreme Court

32 S.E. 361

(54 S.C. 251)

STATE.

v.TUCKER et al.

Supreme Court of South Carolina.

Feb. 24, 1899.

Cleaning op Running Streams — Duty of Riparian Owners—Criminal Prosecutions—Complaint by Private Citizen — Statutes — Repeal.

1. Const. 1895, art. 3, § 34, subd. 11, prohibiting the enacting of special laws where a general law is applicable, is not retroactive, and hence does not make void Gen. St. 1882, §§

1178, 1179. 1181, requiring landowners in certain counties to clean out running streams on their lands during certain periods of the year.

2. The provisions of Gen. St. 1882, §§ 1178,

1179, 1181, being valid when adopted, are not repealed by Const. 1895, art. 17, § 11, subd. 3, providing that laws in force at the time of its adoption, not inconsistent therewith, shall remain in full force, since said provision repeals laws inconsistent with its self-executing provisions only.

3. Gen. St. 1882, § 1181, makes it the duty of the county commissioners to enforce the provisions of sections 1178-1180. The county government act of January 4, 1894, devolves the duties of the county commissioners on the county supervisor and the county board of road commissioners. Act Dec. 24, 1894, abolishes the county board of road commissioners, and creates the county board of commissioners, to which it delegates the duties of the farmer. Held, that the county government acts of January 4, 1894, and December 24, 1894, did not, by abolishing the county board of road commissioners, repeal Gen. St. 1882, § 1181.

4. The duty prescribed by Gen. St. 1882, § 1181, devolved on the county board of commissioners.

5. A private citizen may institute a prosecution for violating said provisions, the remedy given by Gen. St. 1882, § 1181, for enforcing said provisions, being cumulative merely, and not exclusive.

Appeal from common pleas circuit court of Anderson county; J. C. Klugh, Judge.

W. H. Tucker and another were convicted of neglecting to clean out a running stream on their lands, and they appeal. Affirmed.

Bonham & Watkins, for appellants.

J. E. Brezeale and Tribble & Prince, for the State.

JONES, J. Defendants were arrested under a warrant sworn out by a private citizen, charging them with neglecting to clean out a running stream in the county of Anderson during the month of May, 1898, in violation of sections 1178 and 1179 of the General Statutes of 1882 and amendatory acts, now incorporated in the Revised Statutes of 1893 as sections 1273 and 1274.

The first question presented by this appeal is whether the legislation in question is in conflict with subdivision 11, § 34, art. 3, of the constitution, as special legislation. Sections 1178 and 1179 of the General Statutes of 1882, as amended and incorporated in the Revised Statutes of 1893, as sections 1273 and 1274, are as follows:

"Sec. 1273. All landowners of the counties of Anderson, Beaufort, Chester, Greenville, Oconee, Union, Fairfield, Laurens, Newberry and Abbeville shall remove from the running streams of water upon their lands all trash, trees, rafts and timber during the months of May and August in each year, and in the counties of Pickens, Spartanburg and York in the month of August in each year.

"Sec. 1274. Any person convicted of violating the foregoing section shall be deemed guilty of a misdemeanor, and shall be punished by a fine of not less than five nor more that fifty dollars, or be imprisoned not less than ten nor more than thirty days, in the discretion of the court before which the case may be tried."

By section 34, art. 3, of the constitution, the general assembly is forbidden to enact local or special laws on certain enumerated subjects, but these subjects do not embrace the matter of cleaning out running streams. In subdivision 11 of this section it is provided: "In all other cases, where a general law can be made applicable, no special law shall be enacted." The contention, therefore, is that a general law can be made applicable to this subject, and, since the acts in question are local or special, they are in conflict with subdivision 11 aforesaid. But if we should hold that a general law could be made applicable to this subject, and that the legislation in question is localor special, it does not render the said legislation void, as in conflict with the constitution, because the legislation was had long before the adoption of the constitution, and the provisions of the constitution under consideration are not retroactive. In the case of State v. Higgins, 51 S. C. 51, 28 S. E. 15, the act declared to be in conflict with subdivision 11, § 34, art. 3, because a general law could have been made applicable, was adopted after the constitution of 1895 went into operation. It is contended, however, that, under subdivision 3, § 11, art 17, the legislation in question was, in effect, repealed upon the adoption of the constitution. This section simply repeals the provisions of all laws inconsistent with the self-executing provisions of the constitution. The prohibition against the enactment of local or special laws on certain specified subjects, and in all cases where a general law can be made applicable, being prospective only, it follows that such local or special legislation as was in existence at the adoption of the constitution, and valid when enacted, cannot be held inconsistent with the provisions of the constitution relating to prospective legislation of that character. We concur with the circuit court overruling the magistrate on this point.

The next question presented is whether the acts in question were repealed by the acts of 1894 and 1896, providing a new system of county government for all the counties of the state. The argument is that the provisions appearing as sections...