quirements are prospective, and do not apply to or affect the validity of existing statutes. It has been held that they apply to municipalities in the passage of ordinances.

§ 191 (118). When a general law on the subject is in existence. If a general law exists which is applicable to a subject, the question whether such a law can be made applicable is resolved. The legislature has by the enactment of a general law practically decided the question. Hence if, while such a general law is in force, a special or local law is passed affecting the same subject and modifying the

general law, the question of its validity is judicial; it will be held invalid in the case supposed, for, an applicable general law being in existence, it is no longer a question whether such a law can be made applicable; therefore the special or local law is prohibited. The constitution of Georgia provides that "no special law shall be enacted in any case for which provision has been made by an existing general law." This is declaratory of the principle just announced. By virtue of this provision a special law on a subject already covered by a general law is void. A general local option law renders void a local act regulating the sale of liquor. And where a general law permits the sale of domestic wines, a local act forbidding the sale of all intoxicating liquors is void.10 Under such a constitutional provision, if no general law exists, local or special laws may be passed." Under a similar constitutional provision in Maryland, an election law applicable to about three-fourths of the counties of the state was held valid though a general election law applicable to the whole state was in existence.12 Where a local law is invalid when passed because in conflict with a general law on the subject, it is not made

'State ex rel. v. Supervisors, 25 Wis. 339; State ex rel. v. Riordan, 24 id. 484; Walsh v. Dousman, 28 id. 541; Pasadena v. Stimson, 91 Cal. 238, 27 Pac. 604; Crabb v. State, 88 Ga. 584, 15 S. E. 455; Henderson v. Koenig, 168 Mo. 356, 68 S. W. 72; State v. Anslinger, 171 Mo. 600, 71 S. W. 1041; Rathbone v. Kiowa Co. Com'rs, 73 Fed. 395.

7 Const. 1877, art. 1, sec. 4.

E. 878: O'Brien v. State, 109 Ga. 51,
35 S. E. 112; Embry v. State, 109
Ga. 101, 35 S. E. 116; Tinsley v.
State, 109 Ga. 822, 35 S. E. 303.

Mathis v. Jones, 84 Ga. 804, 11
S. E. 1018; Camp v. Tompkins, 84
Ga. 812, 11 S. E. 1021.

10

Papworth v. State, 103 Ga. 36, 31 S. E. 402; Griffin v. Eaves, 114 Ga. 65, 39 S. E. 913; Harris v. State, 114 Ga. 436, 40 S. E. 315.

11 Lorentz v. Alexander, 87 Ga. 444, 13 S. E. 632; Benning v. Smith, 108 Ga. 259, 32 S. E. 823.

8 Smith v. State, 90 Ga. 133, 15 S. E. 682; Caldwell v. State, 101 Ga. 557, 29 S. E. 263; Bagley v. State, 103 Ga. 388, 29 S. E. 123, 32 S. E. 12 Lankford v. County Com'rs, 73 414; Aycock v. Rutledge, 104 Ga. Md. 105, 20 Atl. 1017, 11 L. R. A. 533, 30 S. E. 815; Atlanta Savings 491. Bank v. Spencer, 107 Ga. 629, 33 S.

342

valid by the subsequent amendment of the general law so as to avoid such conflict.13

The injunction to pass general laws when they can be made applicable is imperative as to subjects of a general nature, where laws of a general nature are required to have a uniform operation. The questions affecting the validity of such laws are judicial; the courts must determine what are laws of a general nature which must be so framed as to operate with uniformity.14

The enumerated subjects must be dealt with by general laws; the constitutional provision determines conclusively that they can be so dealt with. All special legislation being prohibited, no other than general laws can be valid. Under the provision prohibiting special or local laws where a general law exists which is applicable, the validity of a special or local law intended to operate in modification of an existing general law will be determined by the courts as obviously a judicial question, for it depends wholly upon judicial elements the meaning of the constitutional provision, the scope and effect of the general law, and the sense and proposed effect of the special or local act.

-

§ 192 (119). Local and special laws valid if not forbidden. Independently of these provisions the legislature has power to pass local and special laws. A mere want of symmetry in the legislation of a state, or the mere circumstance that all parts of a state are not subjected to the same regulations, or that statutes are not made to embrace all the subjects to which they might extend if the law-maker so desired, is no objection. As said by a learned author: "Laws public in their objects may, unless express constitu

14 See post, § 194.

13 Jones v. McCaskill, 112 Ga. 17 Am. Rep. 405; State v. McCann, 21 Ohio St. 198; Merritt v. Knife 453, 87 S. E. 724. Falls B. Corp'n, 34 Minn. 245; County of Hennepin v. Jones, 18 Minn. 199; Bruce v. County of Dodge, 20 id. 388.

15 Lin Sing v. Washburn, 20 Cal. 534; State v. Duffy, 7 Nev. 342, 8 Am. Rep. 713; Cory v. Carter, 48

Ind. 327; Ward v. Flood, 48 Cal. 36,

tional provision forbids, be either general or local in their application; they may embrace many subjects or one, and they may extend to all citizens or be confined to particular classes, as minors, married women, or traders, or the like. 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 to a single class of its citizens only." 16 Where the constitution provided that "the legislature shall have power to provide for the appointment of an additional number of justices of the peace in incorporated towns," it was held to be an express authority to pass special laws on the subject; although the constitution contained the usual provisions as to special legislation.1

There are fundamental principles secured by all the constitutions, and elementary in the very definition of the "law of the land," which impose restrictions upon the power to enact partial, invidious and unequal laws; 18 but it would be foreign to the present purpose to enter upon that subject.

§ 193. Peculiar provisions in South Carolina.- The constitution of South Carolina forbids local and special laws in enumerated cases, and in all other cases where a general law can be made applicable, with a proviso "that nothing contained in this section shall prohibit the general assembly

189; Pope v. Phifer, 3 Heisk. 701; Mayor v. Dearmon, 2 Sneed, 121; Daly v. State, 13 Lea, 228; Burk

16 Cooley's Const. Lim. 488; State v. Piper, 17 Neb. 614, 24 N. W. 204; Smith v. Dunn, 64 Cal. 164. 17 State v. Nine Justices, 90 Tenn. holtz v. State, 16 id. 71: Woodard 722, 18 S. W. 393.

18 Lewis v. Webb, 3 Me. 326; Durham v. Lewiston, 4 id. 140; Holden v. James, 11 Mass. 396, 6 Am. Dec. 174; Bull v. Conroe, 13 Wis. 238-244; Wally v. Kennedy, 2 Yerg. 554, 24 Am. Dec. 511; Vanzant v. Waddel, 2 Yerg. 259; State Bank v. Cooper, id. 605; Ragio v. State, 86 Tenn. 272. 6 S. W. 401; Budd v. State, 3 Humph. 483, 39 Am. Dec.

v. Brien, 14 id. 520; Memphis v. Fisher, 9 Baxt. 239; State v. Duffy, 7 Nev. 342, 8 Am. Rep. 713; Griffin v. Cunningham, 20 Gratt. 31; Dorsey v. Dorsey, 37 Md. 64, 11 Am. Rep. 528; Lawson v. Jeffries, 47 Miss. 686, 12 Am. Rep. 342; Wilder v. Railway Co., 70 Mich. 382, 38 N. W. 289; Trustees v. Bailey, 10 Fla. 238; Arnold v. Kelley, 5 W. Va. 446; Cooley, Const. L. 487.

from enacting special provisions in general laws." In construing these provisions the court has held as follows: "It is manifest from even a casual reading of the constitution, that 'local or special laws' and 'special provisions in general laws' do not mean the same thing, and that they were intended to be construed in such a manner that neither would practically destroy the force of the other. . . . In order that a law may be general it must be of force in every county in the state, and, while it may contain special provisions making its effect different in certain counties, those counties cannot be exempt from its entire operation." 19

§ 194 (120). What are general laws - General principles. The important questions, under these constitutional provisions, are: what are laws of a general nature which must have a uniform operation throughout the state? And what are general laws as distinguished from special and local laws? The descriptive term "general laws" has been in use for a long time. In the common-law classification of statutes it applies to and includes all public acts; those of which the courts take judicial notice; all except private acts. This classification will be more particularly discussed in another place. It is obvious that this term is not used in these constitutional provisions in this sense. Some cases, however, seem to have proceeded on the contrary assumption,20 but I think erroneously. Public statutes may be local or special, and incapable of uniform operation throughout the state, and therefore within the purpose of these provisions. The frequency and inconvenience of such local and special legislation in public acts led to the adoption of these provisions. The enumeration of subjects as to which local or special legislation is forbidden is chiefly an enumeration of subjects upon which the prior legislation was of that char

19 Dean v. Spartenburg Co., 59 S. C. 110, 37 S. E. 226; Nance v. Anderson, 60 S. C. 501, 39 S. E. 5; Carolina Grocery Co. v. Burnet, 61 S. C. 205, 39 S. E. 381.

20 Hingle v. State, 24 Ind. 28; State ex rel. Stoutmeyer v. Duffy, 7 Nev. 350, 8 Am. Rep. 713.