Opinion
22741.
ARGUED JANUARY 11, 1965.
DECIDED FEBRUARY 4, 1965.
Fishing on Sunday; constitutional question. Springfield City Court. Before Judge Fetzer.
Ralph L. Crawford, for plaintiff in error.
Z. Vance Dasher, Solicitor, contra.
1. Section 1 A of Ga. L. 1961, p. 157, as amended by Ga. L. 1962, p. 2344, violates Art. I, Sec. IV, Par. I ( Code § 2-401) of the Georgia Constitution in that said section attempts to enact special legislation in the nature of a local Act while there is a general State law on the subject of fishing on Sunday.
2. Section 1A also violates Art. I, Sec. I, Par. II ( Code § 2-102) of the Georgia Constitution in that it denies certain citizens the privilege of fishing on Sunday by use of an arbitrary and discriminatory classification, the basis of which does not affect or relate to such privilege.
ARGUED JANUARY 11, 1965 — DECIDED FEBRUARY 4, 1965.
On June 15, 1964, in the City Court of Springfield the State filed an accusation charging plaintiff herein with the criminal offense of "Fishing on Sunday." This accusation was founded on Ga. L. 1961, p. 157, as amended by Ga. L. 1962, p. 2344. The 1961 Act amended Code § 26-6908, which prohibited all fishing on the Sabbath, to permit fishing on the Sabbath to all except commercial fishermen, and by Section 1 A excluded from the operation of the law all counties having a population of not less than 6,515 and not more than 6,650, according to the United States census of 1960 or any future such census. This exclusion applied only to the County of Clinch. The 1962 Act struck Section 1 A of the 1961 Act and enacted a new Section 1 A providing for the additional exclusion from operation of the law of all counties having a population of not less than 10,140 and not more than 10,150, which affected only Effingham County, and all counties of not less than 500 and not more than 2,000, which affected only Echols County. Thus, the new Section 1 A merely had the effect of excluding not only Clinch County, but also Effingham and Echols Counties from the operation of the law.
Plaintiff filed his motion to quash the accusation on the ground that the law on which it was founded is unconstitutional in that it violates the provision of Art. I, Sec. IV, Par. I of the Constitution of the State of Georgia ( Code § 2-401) in that it attempts to enact special legislation in the nature of a local Act while there is a general State law covering the subject matter of said Act. Plaintiff subsequently amended his motion to quash to allege that the Act is unconstitutional in that it violates the provisions of Art. I, Sec. I, Par. II of the Constitution of the State of Georgia ( Code § 2-102) in that it denies to defendant the equal protection of the laws. Plaintiff, however, states in his brief that "the attack as to unconstitutionality of the Acts only goes to that portion of the Acts as attempts to exclude the three counties from the operation of a general State statute." The motion to quash, as amended, was overruled, and the exception is to that judgment.
1. Art. I, Sec. IV, Par. I ( Code § 2-401) of the Georgia Constitution provides: "Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law. No general law affecting private rights, shall be varied in any particular case by special legislation ..."
It is well settled that the legislature may classify counties for purposes of legislation, but "the basis of classification must have some reasonable relation to the subject-matter of the law, and must furnish a legitimate ground of differentiation" as the Constitution does not permit mere arbitrary discriminations. Stewart v. Anderson, 140 Ga. 31, 33 ( 78 S.E. 457). There is clearly no reasonable basis for the classification made in Sec. I A of this Act, for there is no reason so far as is shown, why fishing, except commercial, should be permitted in all counties in Georgia except Clinch, Echols, and Effingham.
"The legislature could not constitutionally classify one county by itself. There must be some reasonable basis of classification, so that all which fall within the class may come within the scope of the provisions of the law. Although the act may purport to make a classification of counties for purposes of legislation, yet if the so-called class is so hedged about and restricted that the act applies to only one county, and that other counties coming within the class provided can not also come within the purview of the law, it is in fact a local or special act and not a general one. See Worth County v. Crisp County, 139 Ga. 117 ( 76 S.E. 747); Vaughn v. Simmons, 139 Ga. 210 ( 76 S.E. 1004); Futrell v. George, 135 Ga. 265 ( 69 S.E. 182)." Stewart v. Anderson, 140 Ga. 31, 33, supra.
The legislature first by Sec. 1 A sought to enact special legislation applicable only to Clinch County and then by the 1962 amendment to Sec. 1 A to add the additional counties of Effingham and Echols, which they cannot do, as this is simply an effort to classify one county at a time by population brackets so narrow that they could apply to just the one county. The possibility of any other counties having such population is too remote to form a basis of a reasonable classification. Section 1 A of the Act is thus special legislation and unconstitutional.
2. The Act is also violative of Art. I, Sec. I, Par. II ( Code § 2-102) of the Georgia Constitution which provides: "Protection to person and property is the paramount duty of government, and shall be impartial and complete," for denying those citizens in the three named counties a privilege granted to the rest of the citizens in the State without a legitimate basis for so excluding them. Population is the sole basis for the attempted classification of counties to be excluded from the privilege of fishing non-commercially on Sunday, and population alone in no way affects or relates to such a privilege. See City of Atlanta v. Wilson, 209 Ga. 527 ( 74 S.E.2d 455), City of Atlanta v. Sims, 210 Ga. 605 ( 82 S.E.2d 130), and Geele v. State, 202 Ga. 381 ( 43 S.E.2d 254, 172 ALR 196). Section I A attempts an arbitrary classification, which is discriminatory and repugnant to the above section of the Georgia Constitution. See also Simpson v. State, 218 Ga. 337 ( 127 S.E.2d 907).
Judgment reversed. All the Justices concur.