Hamer v. Brown

18 S.E. 938, 40 S.C. 336, 1894 S.C. LEXIS 152

• Court: Supreme Court of South Carolina
• Decided: February 16, 1894
• Status: Published

Opinion

The opinion of the court was delivered by

Mr. Justice McGowaN.

This was an action to eujoin the county commissioners of Williamsburg from carrying iuto effect certain provisions of an act of the legislature (1892, page 361), by which, it will be observed, certain additional territory in said County of Williamsburg was exempted from the operation of Chapter XXYII. of the General Statutes, relating to the general stock law, and by said injunction preventing the defendants from removing the fence around the original exemption, and'building another fence around the lines of the additional exemption, including the plaintiff’s plantation of 1,500 acres of land.- The complaint does not state that the old fence is to be removed from or the new fence placed upon any portion of plaintiff’s plantation, which lies entirely within the additional exemption, or that any of the plaintiff’s timber is to be used in the construction of the new fence, nor does the complaint ask for any injunction against the collection of any tax noio proposed to be levied. As the Circuit Judge states it: “The injuries, which the plaintiff seeks to avoid are those which grow out of the exposure of his crops to the stock roaming at large in this portion of the county, and adjoining on what, it is proposed to call, a ‘big pasture,’ unless the plaintiff shall, at very heavy expense, protect his crops by suitable fences, which are not now necessary, and also the loss from taxation, which the plaintiff and others expect hereafter to suffer, from the carrying out of the provisions of the aforesaid act,” &e. (A full copy of the complaint should appear in the report o’f the case.)

The defendants commissioners demurred, that the complaint does not state facts sufficient to constitute a cause of action for an injunction, and the cause coming on to be heard before his honor, Judge Fraser, he decreed as follows: “The question presented to me is the constitutionality of the whole act, and to this I will confine my ruling, so far as the plaintiff has the right to make it in this case, leaving it for the land-owners, whose lands will be appropriated for the new fence, to make their own points in their own. way. * * * There may be serious constitutional objections to this act, as to which I do not feel at liberty to express an opinion here. The only injuries complained of in this action are such that I do not think will warrant the court in granting the injunction prayed for, and, though in a more aggravated form, they are only such as every planter endured from the Colonial days, until the passage of the general stock law a few years ago. The plaintiff only complains here that it will be necessary for him to fence in his crops, to protect them from stock running at large. It is ordered, that the demurrer be sustained; that, however, the plaintiff have leave within twenty days to amend his complaint in any way he may be advised, and if not amended by that time, that the complaint be dismissed. It is further ordered, that if the complaint be amended, the defendants have twenty days after service of a copy of the amended complaint, to answer or demur to the same,” &c.

The plaintiff excepts to the ruling of the presiding judge: “(1) That he erred in ruling that the injuries complained of in this action do not warrant the granting of the injunction asked .for; and that the act of 1892 is constitutional. (2) That the presiding judge erred in holding that the complaint does not state facts sufficient to constitute a cause of action.”

1 2 We think it is a mistake to suppose that the Circuit Judge held that the act of 1892 is constitutional in all of its provisions. ' On the contrary, he was very careful to guard against, any such impression by expressly confining his rulings to the questions which the plaintiff had a right to make in this case, under the allegations and prayer of his complaint, leaving it for the land-holders, whose lands will be appropriated for the new fence, to make their own points in their own way, as in the case of Fort v. Goodwin, 36 S. C., 445. The Circuit Judge construed the complaint as only making one specific allegation — that the defendants are about to remove the fence “from where it now stands, and building another fence so as to include plaintiff’s plantation,” without actually touching it at any point. It is not stated in the complaint whether or not certain provisoes in the act have been complied with on the part of the county commissioners, &c. We think the judge did right in limiting his rulings to the case made in the pleadings; and, as a consequence, this court here can not consider any original questions not made below, or decided by the judge. We can not say that, in this view, he committed error in sustaining the demurrer; for if the legislature had the constitutional right to create the first exemption from the operation of the general stock law, we can not clearly see why, considered as the sole question, they had' not the right simply to enlarge that exemption.

3 But the judge said further, that there might be serious constitutional objections to the act, as to which, on the complaint alone, he was not at liberty to express an opinion ; and, therefore, while sustaining the demurrer, he gave the plaintiff leave, within twenty days, to amend his complaint in any manner he may be advised; and, if not amended within that time, that the complaint be dismissed. And he ordered, further, “that if the complaint be amended, the defendants have twenty days after service of a copy of the amended complaint to answer or demur to the same,” &c. We also agree with the Circuit Judge that it was proper to give to the plaintiff the right to amend his complaint as he may be advised. The general stock law, with the exemptions made to it at different times, have given rise to questions which are important and novel, and should receive the fullest consideration. As, for example, the act under consideration (1892), “To exempt certain portions of Williamsburg County from the operations of the general stock law,” &c., contains these provisions as to which the complaint makes no specific allegations in regard to performance or non-performance on the part of the defendants. The proviso of the second section is as follows: Provided, That the said county commissioners shall levy a special tax upon the assessed value of all the cattle, hogs, sheep, dogs, and goats, embraced in such section exempted as aforesaid, sufficient to remove said old fence and to build said new fence, and repairs,” &e. And the fourth section provides as follows: “That this act shall go into effect from and after the provisions of sections 2 and 3 of same are complied with.” It seems to us that these are important provisions upon the question as to whether the plaintiff is entitled to have an injunction against the removal of the old fence, and the act of 1892 declared unconstitutional.

The judgment of this court is, that the judgment of the Circuit Court -be affirmed.