contains 35 to 45 per cent. alcohol. Commercial alcohol itself is only 188 proof. Beers and wines usually contain only 4 to 10 per cent. of alcohol. So that a preparation containing 22 per cent. of alcohol would be intoxicating even if taken in reasonably small quantities. The mere fact that a mixture may have medicinal virtues does not take it from under the ban of the law against the sale of intoxicants. Whisky itself is a stimulant, and has some good qualities as a medicine. The theory of prohibitory statutes is that it is better to forego the legitimate uses of these alcoholic mixtures than to risk the dangers of their abuses. However, in an alcoholic preparation, the alcohol may be so denatured as to render the mixture totally incapable of being used as a beverage; and such preparations are not within the purview of laws against the sale of intoxicating liquors. There was evidence from which the jury might have found that the preparation in question belongs to this class, and upon this contention the defendant mainly rested his defense. The trial court ignored this question and in effect charged to the contrary. The defendant was entitled to have this defense submitted for whatever it was worth, in the light of all the testimony. For this alone we grant a new trial. Judgment reversed. HARDAWAY v. STATE. (No. 176.) (Court of Appeals of Georgia. Feb. 5, 1907.) GAME-SHOOTING ON POSTED LAND-INDICT MENT. * An indictment under the act of 1903 (Acts 1903. p. 44) amending the Pen. Code 1895, § 221 (which provides "for the posting of lands and for the punishment of persons hunting thereon"), alleging that the accused did on the 1st day of "December, 1905, * hunt with firearms upon the land of [A], said lands being then and there posted by having two cards on said land * forbidding all persons to hunt on said lands, and the said [A] having registered his name in the register for posting lands in the clerk's office in said county as required by law," is defective, and sets forth no offense under the statute, and should have been quashed on demurrer. Under the requirements of the above act, the indictment should allege that the notice had been posted by the landowner in two or more places on each tract of land; that the landowner had registered his name in "the register for posting lands," after first having stated, etc., that said two notices had been posted; and that at the time of registering he gave a description of the lands, by giving the district in which the lands were located, the number of the lots, or other description sufficient to put the public on notice of the lands referred to. (Syllabus by the Court.) Error from Superior Court, Greene County; Lewis, Judge. Tom Hardaway was convicted of hunting on posted lands, and brings error. Reversed. James B. & Noel P. Park, for plaintiff in error. Joseph E. Pottle, Sol. Gen., and James Davison, for the State. HILL, C. J. Tom Hardaway was indicted in the superior court of Greene county for a misdemeanor, the indictment charging that he "did on the first day of December, 1905, in said county, hunt with firearms upon the land of C. J. Thornton, said lands being then and there posted by having two cards on said lands, and one of said cards being then and there posted at the courthouse door in said county, forbidding all persons hunting on said lands, and the said C. J. Thornton having registered his name in the register for posting lands in the clerk's office in said county as required by law." Said indictment was transferred to the county court of Greene county. The defendant demurred to the indictment on various grounds, and the demurrer was overruled; whereupon the defendant "waived formal arraignment, trial by jury, and pleaded not guilty." After hearing the evidence the court found the defendant guilty. The defendant presented his petition for certiorari, alleging "that said demurrer should have been sustained by the county judge, that certain evidence was erroneously admitted, that his conviction was illegal, contrary to law, and without evidence to support it." The petition was sanctioned and the writ of certiorari issued. On hearing the certiorari, the judge of the superior court overruled the same and affirmed the judgment of the court below. To this judgment of the court the defendant excepted, and assigns the same as error. The first and second grounds of the demurrer can well be considered together. The second ground of the demurrer is that the indictment is defective, in that it does not put the defendant upon notice as to what lands of C. J. Thornton are meant, and that said lands are not sufficiently described, nor does said indictment allege what district they are in. By reference to the act of 1903 (Acts 1903, p. 44), amending section 221 of the Penal Code of 1895, it will be seen under what conditions the law makes hunting upon the lands of another a misdemeanor. Section 1 of this act declares that "It shall be the duty of the landowners to post a notice in two or more places on each tract of land forbidding all persons to hunt thereon." Section 2 of the act requires that the landowner, in addition to posting the notice aforesaid "in two or more places on each tract of land," shall register his or her name in a book to be known as "the register for posting lands," in the office of the clerk of the superior court, after having first stated, etc., that the two notices have already been posted upon said landowner's land as required by section 1 of this act. Section 4 (page 45) of this act provides that "at the time of the registering of the name of the landowner he shall also register a description of the lands that have been posted, giving the district in which said lands are located, and either the numbers of the lots or other description of the lands sufficient to put the public on notice of the land referred to." Construing all these sections of the act together, we think it clear that, before it becomes an offense to hunt on the lands of another, the following facts must exist: First. The landowner shall post a notice in two or more places on each tract of land forbidding all persons to hunt thereon. Second. Said landowner shall register his name in the register for posting lands, stating in the presence of the officers in charge of said book that the two notices have already been posted upon each tract of land. Third. At the time of the registering of the name of the landowner and the posting of the land, the landowner shall also register a description of the land that has been posted, giving the district in which said land is located, and either the numbers of the lots or other description of the land, sufficient to put the public on notice of the land referred to. What the act requires shall be done to constitute the offense should be alleged in the indictment and shown by the evidence. The omission of either one of these essential allegations is fatal to the indictment. therefore hold that the court erred in not sustaining the demurrer on the first and second grounds, and that the judgment of the superior court in overruling the certiorari We In the foreclosure of liens under Civ. Code 1895, § 2816, it is not essential that it be alleged or proved that the contract was fully completed by the party claiming the lien, if compliance with the contract was either waived or prevented by the defendant. In presenting the issue of lien or no lien, a proper averment that the promisor was prevented by the promisee from completing his contract as a sawmillman is a good substitute for a statement that the obligations of the contract have been fully met, and (if sustained by sufficient evidence satisfactory to the jury) is equivalent to completion, as a remedial element. 3. SAME. Though full performance of the contract on the part of the plaintiff be essential to the establishment of the liens provided by section 2816 of the Civil Code of 1895, yet, where it appears that the defendant himself prevented the completion of a contract partly performed, and rendered full compliance therewith impossible, the defendant will not be allowed to take advantage of his own wrong, so as to defeat the lien for the services already rendered. It will in such a case be presumed that there was a novation of the original contract between the RUSSELL, J. Speer, a sawmillman, foreclosed his lien against Haralson, and levied on certain lumber sawed by him for the defendant. Haralson gave bond for the lumber, instead of a replevy bond. On the trial Haralson moved to quash the affidavit and fi. fa., and to dismiss the levy, and by a demurrer set up, as reasons why the affidavit and fi. fa. should be quashed and the levy dismissed, (1) that the affidavit does not allege that the contract is complete, nor state any reason why the plaintiff did not complete it; (2) no demand and refusal to pay is alleged; (3) the affidavit does not allege the debt to be due, but distinctly denies it is due; (4) no legal reason is averred why demand was not made on the owner; (5) the affidavit does not state when or by whom demand was made. Thereupon the plaintiff amended his affidavit by alleging that he demanded the amount due of the defendant after it became due; and, further, that after he had cut the lumber upon which the lien was claimed, and while he was preparing to complete the sawing, the defendant hired his fireman and his stock cutter without his consent; that without these hands affiant was unable to carry on the sawing; and that he tried to get hands to take the place of his fireman and stock cutter, but was unable to do so. The trial judge overruled the demurrer, and the defendant excepted pendente lite. The case then proceeded to trial, and the jury rendered a verdict for the plaintiff. The defendant (now plaintiff in error) excepts to the overruling of his demurrer and to the refusal of his motion for a new trial. The demurrer raised all the issues of law which are pertinent in this case, and the grounds thereof are properly presented here for adjudication. If the court was right in overruling these demurrers, the verdict cannot be disturbed, for there is evidence to support it. If the judge should have sustained the demurrers and motion to quash, the plaintiff could not foreclose his lien as a sawmillman then, and never could in the future. It is true that the learned counsel for plaintiff in error insists in his brief that the verdict is contrary to evidence, against the weight of evidence, and without evidence to support it; but this contention rests, it will be found upon investigation, wholly upon counsel's view of the law, and upon the theory that the evidence showing why the sawing was not completed should not be considered. Summarizing the motion to quash the affidavit of foreclosure, the affidavit is attacked on three grounds: (1) That it does not show that the contract of sawing has been completed; or (2) that the amount claimed is due; or (3) that a demand has been made. The objection that no proper demand was legally set forth in the affidavit (and which, in different forms, was the burden of three grounds of the demurrer) was met by amendment detailing that the demand was made on the defendant by plaintiff in person, and after the debt became due. This met the motion to quash; and as to this ground the motion was properly overruled. On the trial there was proof of demand, though this was not necessary, as demand was not denied by the counter affidavit. Langston v. Anderson, 69 Ga. 65. The affidavit as amended also shows that it is distinctly alleged that the debt for the sawing, on which a lien is claimed, is due. So that the real controlling question is whether this owner of the sawmill, even if he was prevented by the owner of the timber (who hired his two indispensable employés, whose positions he could not fill with other help) from complying with his contract, shall be deprived, though himself free from fault, of just compensation for the labor already done, and of the lien attached to such service by law. It may be said that he could, by suit, recover judgment for the amount of his services; and he might also recover damages for the breach of the contract. But in many instances the special lien allowed by law is the only security or guarantee for the collection of the sum due, which might otherwise be merely included in a noncollectible judgment. It is well settled that the lien laws are in derogation of the common law and are to be strictly construed. And generally before one can claim a lien for services, material or labor, it is incumbent on him to show that he has complied with and performed a contract declared on. This is the express statute with reference to such liens enforceable against real estate; and, in Faircloth v. Webb, 125 Ga. 231, 53 S. E. 592 (5), the same rule seems to be applied to liens sought to be enforced on personalty, the court holding that, "in order to establish his lien, it is incumbent upon the laborer to show that he complied with and performed the contract declared on." In Tanxley v. Lampkin, 113 Ga. 1007, 39 S. E. 473, it was held that a verdict for the defendant is demanded, where a laborer institutes a suit to foreclose a lien which he claims against real estate, and where there is no testimony to show that he has completed his contract of labor. But the point now before us was not involved in either of those cases; and though it is generally essential to allege, and, when alleged, to prove, that a contract has been complied with and fully performed, this rule is subject to exceptions, where the complete performance is prevented by the opposite party to the contract. The principle involved in the maxim that the law will allow no one to take advantage of his own wrong is more binding than the requirement that the completion of the contract be alleged. To hold otherwise would be to require, in some cases, an impossibility. And the law never imposes this burden on any one. According to the allegations of the affidavit (which for the purposes of demurrer are assumed to be true), it clearly appears that the sawing of the full amount of lumber, according to the terms of the contract, was prevented by Haralson himself; and, if the demurrer is well taken, Speer could not foreclose his lien for the full amount of the lumber, or even for that which had been sawed. Speer set forth in his affidavit, and the amendments thereto, that Haralson hired two of his hands at the sawmill; that other hands could not be secured, though he made every effort to do so; and that the mill was thereby forced to stop sawing. One man was his fireman, the other was the stock cutter. Without these the mill could not be run, and Speer could not replace them with others. Haralson having caused the mill to shut down, he cannot be heard to complain that Speer did not go on sawing. This would allow him to take advantage of his own wrong. As the fundamental principles of the law will not permit this, we have no difficulty in holding that, where one party is prevented from completing his contract by the other party to the contract, the first party retains his lien for the work already done. If this be sound principle, such a party has the right to allege the reasons why he has not completed the contract instead of averring its completion; and consequently this demurrer to the affidavit was properly overruled, and evidence on the subject properly admitted. Proof of the completion of a contract in cases of lien may be dispensed with either where compliance with the contract is prevented by the action of the defendant or where the defendant waives compliance. We have examined at least two cases in our own state which are directly in point. In Hart v. Hirsch, 74 Ga. 799, the plaintiff sued out a laborer's lien. It was admitted that the contract had not been fully completed; but the plaintiff gave as a reason therefor that the defendant had refused to pay him the amount due monthly for wages, and, in violation of his contract, had removed the plaintiff's goods from his house. And in that case the court refused a request to charge the jury as follows: "In order for the plaintiff to pre-line of decisions which make the completion vail in this case, it is necessary that he must show that he completed his contract of labor." The Supreme Court affirmed a judgment denying a new trial, expressly holding that no error was made in refusing to charge as requested. In Lewis v. Owens, 124 Ga. 228, 52 S. E. 333, it was held that a cropper was entitled to a laborer's lien, although he did not complete his crop, being prevented from doing so by the levy thereon of a distress warrant against his employer. If the fact that the contract has not been completed will not defeat the lien where a third party-a stranger to the contract-prevents its completion, still less will it be defeated when the employer in person takes steps to prevent his employé from complying. And the authorities in our own state are re-enforced by decisions from the courts of last resort in every section of the Union, sustaining the principle that a statutory lien is not lost by noncompliance with the contract where the lienor is prevented by the other party from completing his contract. In Bohem v. Seabury, 141 Pa. 594, 21 Atl. 674, it is held that in foreclosing a mechanic's lien it is necessary to allege completion of the contract or that the owner had prevented the completion; thus recognizing the doctrine stated above, that prevention from complying is a good substitute for compliance and completion. In Pardue v. Missouri R. Co., 52 Neb. 201, 71 N. W. 1022, 66 Am. St. Rep. 489, it is decided that, where a contractor has been wrongfully interrupted by the owner and prevented from completing the work, the contractor is entitled to his lien for the work done and material furnished. In Smith v. Fleischman, 48 N. Y. Supp. 234, 23 App. Div. 355, it was held that "a contractor's right to a lien cannot be defeated upon the ground that he failed to complete his contract within the specified time, when the failure was due to interference by the owner." In Orr v. Fuller, 172 Mass. 597, 52 N. E. 1091, it was held that "a contractor has a lien for the portion of work done on a house when the contract is broken by the owner after part performance." We think it settled, therefore, where one, who would have a lien at the completion of the contract, is prevented by the act of the other party from completing his contract, and is himself free from fault, such a one would still be entitled to his lien to such an extent as he had complied with the contract. It was held in Hawkins v. Chambliss, 120 Ga. 615, 48 S. E. 169, that there could be such a waiver of compliance with the contract as would preserve the lien as to the portion of the work done, although the contract was not completed. We have, in part, based our ruling in this case upon the principle underlying the holding in the case last above cited-the presumption of a novation of the original contract. Based upon this principle, there is no conflict between our decision in this case and the long of the contract one of the essential prerequisites to the existence of a lien. As they who make contracts, have by mutual consent the right to alter them, and as he who prevents a thing from being done shall not avail himself of the nonperformance which he himself occasioned, the breach of the contract by the one party may be assented to by the other at his option; and, if assented to, it becomes a mutual agreement, which presumes a new contract, the operation of which extends to that which has been performed by the lienor up to the time of the assent, and no further, and becomes an executed or completed contract. In this view of the case, Haralson, when he broke the contract, by preventing Speer from sawing, thereby proposed that the contract be reduced from one of sawing 100,000 feet of lumber to one for sawing 61,000. Speer had the option to agree to this change if he saw fit. By his suit he did agree, and the contract became complete, and he was therefore authorized to enforce his lien. A remedy at law, as in medical science, is prescribed, designed, and administered so as to cure, or, at least, relieve, the ills from which the patient suffers. Sometimes the proper remedy is elementary in substance; sometimes a prescription requires compound; and generally, in law, the remedy is the mingling of several rights, compounded to make a panacea which shall relive the party's wrongs and restore his rights to free and healthful action. In law, as in medicine, there is frequently more than one formula by which a remedy can be compounded and perfected. Sometimes the remedy is composed of certain remedial ingredients, and at other times new and different curatives are either added or omitted, to suit the case. Frequently, for the lack of one sanative, the law substitutes another, which will produce a like healing effect. Relief, both in law and medicine, is the object sought. The sawmillman needed a remedy to put his lien in healthy action. One of the ingredients of that remedy must be a proper affidavit, and the proper presentation of the issue of lien or no lien. According to the usual formula of the prescription, full compliance with the contract must be stated. That particular narcotic is not available, but the doctor finds a balm in Gilead in a proper averment that the promisor was prevented by the promisee from completing his contract as a sawmillman. With this change the prescription can be compounded, because a good substitute has been found for the statement that the obligations of the contractor have been fully met. The pleadings are complete. A substitute averment, if sustained, as in this case, by sufficient evidence which was satisfactory to the jury, is equivalent to completion, as a remedial element. Judgment affirmed. STATE ex rel. SPENCER v. McCAW et al. (Supreme Court of South Carolina. July 11, 1907.) 1. STATUTES-LOCAL ACTS-SCHOOL DISTRICTS -CHANGE OF BOUNDARIES. 25 St. at Large, p. 731, amending 20 St. at Large, p. 246, creating the school district of Yorkville, by extending its boundaries, is not in violation of Const. art. 3, § 34, subd. 4, prohibiting the General Assembly from enacting local laws to incorporate educational societies; that section applying to institutions of learning, and not to school districts. 2. SAME. 25 St. at Large, p. 731, amending 20 St. at Large, p. 246, creating the school district of Yorkville, by extending its boundaries, is not in violation of Const. art. 3, § 34. subd. 5, prohibiting incorporating of school districts by special law, as such act does not incorporate a district, but only amends a previous statute of incorporation. [Ed. Note. For cases in point, see Cent. Dig. vol. 44, Statutes, § 107.] 3. SAME. Const. art. 3, § 34, subd. 11, prohibiting special laws in all cases where a general law can be made applicable, must be construed in connection with article 11, § 5, providing that the General Assembly shall establish public schools and divide counties into suitable school districts; and, so construed, a special act extending the boundaries of a school district already created may be regarded as a special provision to a general law, and therefore not unconstitutional. [Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, § 107.] 4. SAME-CHANGE OF CORPORATE CHARTER. Const. art. 9, § 2, providing that no charter of incorporation shall be granted, changed, or amended by a special law, relates to private or quasi public corporations, and not to school districts. Application by the state, on the relation of C. E. Spencer, for writ of mandamus against W. B. McCaw and others. Writ denied. C. E. Spencer, in pro. per. W. B. McCaw, for respondents. GARY, A. J. This is an application to the court in the exercise of its original jurisdiction, for an order of injunction restraining the respondent from ordering and holding an election in the school district of Yorkville. The said school district was incorporated by an act, entitled "An act to create the school district of Yorkville, in York county, and enable it to organize a system of free schools, and to levy a tax in support of the same, and to purchase and hold property," approved 22d December, 1888. 20 St. at Large, p. 246. This statute embraced an area of one mile, extending from the intersection of Congress and Liberty streets. On the 15th of February, 1907, an act was passed, entitled "An act to enlarge the area of the school district of Yorkville to two and one-half miles" (25 St. at Large, p. 731), which provides: "That after the approval of this act, the territory embraced within the area extending two and one-half miles, from the intersection of Congress and Liberty streets, in the town of 58 S.E.-10 Yorkville, in said state, be declared a separate school district, and to be known as the 'School District of Yorkville,' and that it be invested with such corporate powers as may be necessary to carry out the purposes of its organization, as now declared by law heretofore creating the same, and acts supplementary or amendatory thereto." The petitioner alleges that this act is unconstitutional on the following grounds, to wit: "(a) In that it is in violation of and is repugnant to article 3, § 34, subds. 4, 5, 11, of the Constitution of South Carolina. (1) The school district of Yorkville, whose charter is hereby amended, is not an educational institution under the control of the state. (2) It is a new school district, the creation of which is expressly prohibited. (3) A special law has been enacted where a general law could have been made applicable. (b) In that it is in violation of and repugnant to article 9, § 2, of the Constitution of South Carolina, in that the Yorkville school district, the corporation whose charter has been amended by said act of the General Assembly, is not one of the excepted corporations enumerated in article 9, § 2. of the Constitution, namely, 'such charitable, penal, educational or reformatory corporations, as may be under the control of the state,' but, on the contrary, is a corporation whose charter cannot be amended by special law, save only under the proviso to article 9, § 2, of the Constitution, which provides 'that the General Assembly may by a two-thirds vote of each house, on a concurrent resolution, allow a bill for a special charter to be introduced, and may pass the same as other bills'; but in this connection petitioner avers and charges that no such two-thirds vote of each house was taken on a concurrent resolution allowing the introduction and passage of the bill into the act herein assailed." We proceed to consider, first, the grounds upon which it is contended the statute is obnoxious to certain provisions of article 3, § 34, of the Constitution, which is as follows: "The General Assembly of this state shall not enact local or special laws concerning any of the following subjects, or for any of the following purposes, to wit: (1) To change the names of persons or places. (2) To lay out, open, alter or work roads or highways. (3) To incorporate cities, towns or villages, or change, amend or extend the charter thereof. (4) To incorporate educational, religious, charitable, social, manufacturing or banking institutions not under control of the state, or amend the charters thereof. (5) To incorporate school districts. (6) To authorize the adoption or legitimation of children. (7) To provide for the protection of game. (8) To summon and empanel grand or petit jurors. (9) To provide for the age at which citizens shall be subject to road or other public duty. (10) To fix the amount or manner of compensation to be paid to any county officer, except that the laws may be 1 |