Utsy v. Hiott

• Decision Date: 14 March 1889
• Citation: 9 S.E. 338,30 S.C. 360
• Parties: UTSY v. HIOTT.
• Court: South Carolina Supreme Court

9 S.E. 338

30 S.C. 360

UTSY v. HIOTT.

Supreme Court of South Carolina

March 14, 1889

Appeal from common pleas circuit court of Colleton county; PRESSLEY Judge.

Joseph Hiott, Sr., was sued by W. L. Utsy for expenses of seizure of estrays and damages under the general stock act. From judgment for plaintiff, defendant appeals.

W. B Gruber, for appellant.

Murphy & Farrow, for respondent.

McGOWAN J.

From the "agreed case" it appears that both the plaintiff (respondent) and the defendant (appellant) reside within the territorial limits exempted from the operation of the general stock law by act of 1887, "to exempt certain portions of Colleton county from the operation of chapter 27, tit. 10, Gen. St., in relation to the general stock law." 19 St. 1002. That in April, 1888, one of the defendant's cattle wandered upon the cultivated lands of the plaintiff, and was seized by him while so trespassing under the provisions of the general stock law, and claim made for seizure and damages. Thereupon the defendant went before a trial justice, and gave bond for the expenses of seizure and damage, should any be awarded, and retook his property. Suit was thereupon instituted by the plaintiff to recover the expenses of seizure and damages under the general stock law. One of the counts in the complaint also alleged $3 damage at common law, and prayed judgment thereon. It appeared that the plaintiff cultivated his crops without inclosure. During the summer months his cattle were placed in charge of persons residing in other neighborhoods, within the territorial limits exempt by act of 1887. While in charge of these persons, who were paid for their trouble, the cattle roamed at large, and were sometimes impounded by persons upon whose lands they trespassed, and the plaintiff paid the costs and damages. In the fall, plaintiff took his cattle home, and allowed them to graze in his fields. Later, when the crops of the neighborhood were harvested, the cattle were permitted to roam at large. One or two persons residing in the neighborhood objected to this, and impounded plaintiff's cattle, and he paid the costs and damages. Nearly all his neighbors allowed their stock to pasture at large during the winter months. The practice of the plaintiff here described embraced that period of time intervening between the general stock law (1882) and the act of 1887. Under these circumstances, the trial justice gave judgment in favor of the defendant, and dismissed the complaint, upon the ground that the plaintiff, not having "conformed to the general stock law," could not claim the benefit of the proviso to the exempting act, (1887,) which declares that "those owning real estate in Colleton county, who have conformed to the general stock law, shall not in any way be affected by the operations of this act." Appeal was taken to the court of common pleas, and Judge PRESSLEY, holding that the practice of the plaintiff as to the management of his cattle was "a substantial conformity to the general stock law," reversed the judgment of the trial justice, and gave the plaintiff judgment for $3, and costs. He also held that the act of 1887, "to exempt certain portions of Colleton county from the general stock law," (19 St 1002,) operates "unequally upon the persons within its territorial limits and the same business, and is therefore unconstitutional and void." From this order and judgment the defendant appeals to this court upon the following exceptions: "(1) For that his honor erred in holding that the respondent [plaintiff] had proved a conformance to the general stock law. (2) For that his honor erred in holding that the act of 1887 ['To exempt certain portions of Colleton county from the operation of the general stock law'] was in violation of article 1, § 12, of the constitution of South Carolina, and therefore unconstitutional and void. (3) For that his honor erred in refusing to hold that if the proviso of said act of 1887 was unconstitutional, that the proviso alone was unconstitutional, and the body of the act valid."

The law commonly known as the general stock law, in order to secure parties in cultivating their crops without fences, makes it unlawful for the owners to allow cattle to roam at large. The plaintiff lives in a part of Colleton county which has been exempted by act of the legislature from the operations of the stock law, and yet the seizure of the defendant's cattle, and his action for the expenses of seizure and damages, are founded on the provisions of the general stock law. At first view this would seem inconsistent, but it arises in this way: Upon the passage of the general stock law, (1882,) which prohibited cattle from roaming at large, it seems that some persons in Colleton county conformed to it by removing their fences and inclosing their cattle, while others did not do so. Afterwards, (1887,) the legislature passed a law exempting a certain portion of Colleton county from the operation of the stock law, and, in order to protect those within that territory who had "conformed" to the general law of 1882, a proviso was inserted in the exempting act as follows: "Provided, those owning real estate in Colleton county, who have conformed to the general stock law, shall not in any way be affected by this act;" that is to say, the stock law was not repealed, but still left in force as to such persons. The plaintiff rested his case, in the first instance, on this proviso, claiming that he was one of those within the exempted territory who had "conformed" to the stock law, and therefore was entitled to all the rights and benefits conferred by that law. It was, however, insisted on the other side that as matter of fact he was not one of those who had "conformed;" but, if he was, the proviso itself was and is unconstitutional and void, as being repugnant to section 12, art. 1, of our constitution, which declares that "no person *** shall be subjected in law to any other restraints or disqualifications in regard to any personal rights than such as are laid upon others under like circumstances," and as also in conflict with the fourteenth amendment of the constitution of the United States, which, among other things, declares that "no state *** shall deny to any person within its jurisdiction the equal protection of the laws." To this it was replied that, if the proviso is void, that must necessarily affect and avoid the whole exempting act, leaving the parties simply under the provisions of the general stock law.

Is the exempting act (1887) unconstitutional, either in whole or in part? We assume that the local character of the act does not make it necessarily unconstitutional. While there may be some just objections to local laws in general, it is well established that the authority that legislates for the state at large must determine whether particular rules shall extend to the whole state and all its citizens, or, on the other hand, to a subdivision of the state or a single class of its citizens only. The circumstances of a particular locality, or the prevailing sentiment in that section of the state, may require or make acceptable different police regulations from those demanded in another. The legislature may therefore prescribe different laws of police in each distinct municipality,...