DISSENTING OPINION. The act held constitutional in the majority opinion is a local or special act, and the question is whether the General Assembly has been deprived of the power to enact such legislation.
The constitutional amendment here reviewed consists of two complete sentences. The first is that: "The General Assembly shall not pass any local or special act." If this were all, it would not be contended that the General Assembly could pass the act. But, after saying, in language which is too emphatic and unambiguous to admit of doubt, that the number of local or special acts shall not be augmented by the passage of others, the inhibition against local or special legislation was relaxed to the extent of permitting the repeal of any existing local or special act.
The General Assembly was deprived by the Constitutional Amendment of all power on the subject except to repeal existing special or local acts. Obviously a purpose of *Page 725 the amendment was to promote uniformity in legislation, and this purpose was to be subserved (a) by prohibiting the passage of additional local and special legislation, and (b) by repealing laws which had caused diversity.
The original local fence law has not been repealed. It is still the law. It has only been amended to make it more local or special law than it was before, by making it apply to a smaller territory. The character of the amended act as a local or special law is more pronounced now than it was before it was amended, because it applies to a smaller portion of the State.
At 229, page 427, Lewis' Sutherland Statutory Construction (2 ed.) it is said: "Existing general laws required to have a uniform operation cannot be amended so as to interrupt their uniform operation. Though special acts may be repealed, parts of a special or local law may not be repealed where the effect is to intensify the special character of the act."
If we are not mistaken in assuming that a purpose of the amendment was to promote uniformity and to lessen diversity in legislation, the act under review should fall as an intensification of the special character of the at which it amended.
The writer and Mr. Justice MEHAFFY therefore dissent from the conclusion of the majority that the act of 1929 is constitutional and valid.