Alexander v. Stuckey

• Decision Date: 02 July 1923
• Docket Number: 89
• Citation: 253 S.W. 9,159 Ark. 692
• Parties: ALEXANDER v. STUCKEY
• Court: Arkansas Supreme Court

253 S.W. 9

159 Ark. 692

ALEXANDER v. STUCKEY

No. 89

Supreme Court of Arkansas

July 2, 1923

Appeal from Miller Chancery Court; C. E. Johnson, Chancellor affirmed.

Decree affirmed.

Louis Josephs, James D. Head and Pratt P. Bacon, for appellants.

Act No 4, Acts of 1921, under which the election was held, is unconstitutional, violating sec. 8, art. 2, Constitution of Arkansas, and sec. 1, art. 14, Constitution of the United States, the "due process" clause. Fort Smith v. Dodson, 46 Ark. 296; 80 Ark. 333; 30 S.W. 440; 99 N.W. 505; 61 L. R. A. (Ariz.) 410. The facts of Howell v. Dauget, 148 Ark. 450, are altogether different from facts of this case. 32 Ark. 131; 33 Ark. 816. The provisions of the statute relating to damages being unconstitutional cannot be eliminated without destroying the intent and purpose of the act, leaving it incomplete and incapable of enforcement. 49 Ark. 110; 89 Ark 466; 111 Ark. 108; 138 Ark. 381. The election was illegal being held without giving the notice as required. Lewis v. Young, 116 Ark. 291; 153 Ark. 50; 153 Ark. 188; 67 Ark. 30; 104 Ark. 298; 110 Ark. 544; 42 Ark. 93; 52 Ark. 265; 36 Ark. 446; 89 Ark. 284; 117 Ark. 465, relied on by appellee, distinguished.

J. M. Carter and B. E. Carter, for appellees.

The election was valid, there having been substantial compliance with the statutory requirements as to notice. 36 Ark. 446; 50 Ark. 266; 89 Ark. 284; 92 Ark. 67; 117 Ark. 465; 122 Ark. 418. Statute not in conflict with "due process" clauses of either State or Federal Constitutions. 80 Ark. 333; 148 Ark. 450; 46 Ark. 296; 92 Ark. 155; 133 Ark. 138; 138 Ark. 471. Contest of election barred by statute not instituted in time. Sec. 2, special act 4, Acts 1921; C. & M. Digest, § 3847. Chancery court was without jurisdiction. Appellants had adequate remedy at law. 133 Ark. 138; 34 Ark. 375; 34 Ark. 559; 34 Ark. 603; 39 Ark. 412; 44 Ark. 139; 85 Ark. 230; 115 Ark. 317; 80 Ark. 369; 95 Ark. 618; 88 Ark. 395; 27 Mont. 79; 124 Minn. 239; 144 N.W. 764.

OPINION

WOOD, J.

Act No. 4 of the Special Acts of 1921 provides for a local option stock law for Miller County. Special Acts, 1921, page 1. The first section of the act provides that, upon the petition of twenty-five per cent. of the qualified electors of any political township in Miller County, the county court or judge thereof shall order an election for such township at the general election, if there be one, within six months from the filing of the petition, and, if not, at a special election, to determine, whether the stock law shall take effect in the township, as provided in subsequent sections of the act.

The second section provides that notice shall be published in four successive weekly editions of a newspaper having a bona fide circulation in the township, the first publication to be at least thirty days prior to the election, and not less than twenty written or printed notices of such election to be posted in as many public places in such township at least twenty days prior to the date of the election, and this section concludes as follows: "Said election shall be held under the general election laws of the State as far as they are applicable."

This action was instituted by the appellants in the Miller Chancery Court against the appellees. In their complaint the appellants alleged that they were property owners and electors in Sulphur Township, Miller County, Arkansas, and owned stock on the range in that township; that on November 10, 1921, an election to determine whether a majority of the electors was in favor of restraining stock from running at large was held in such township, under the orders of the county court previously made; that the election commissioners certified to the county court that a majority of four had voted in favor of restraining the owners of live stock from allowing same to run at large; that on December 31, 1921, the judge of said county court issued such restraining order; that said election, the election certificate and said restraining order were all void because the notice of said election was not published in four successive weekly editions of a newspaper, and the first publication thereof was less than thirty days prior to said election; that the appellees and others were wrongfully and unlawfully impounding appellants' stock and selling the same. The appellants then set out the substance of the various provisions of the act of which they complain, from section seven to section ten, inclusive, and say: "The provisions of the act are unconstitutional because the owner of said animals, when impounded, is not given a day in court, nor is a hearing provided for him, and said act provides for taking property without due process of law," contrary to the State and Federal constitutions. The appellants prayed that the act and the election under it be declared null and void, and that the appellees be perpetually enjoined from attempting to enforce it.

The appellee demurred on the ground that the court was without jurisdiction, and also that the complaint did not state facts sufficient to constitute a cause of action, and answered denying all the material allegations of the complaint. They pleaded the statute of limitations governing election contests in bar of the action, and set up laches as follows: That appellants "have waited from the tenth of November, 1921, the day of said election, when they and all others in the township knew that a majority had voted in favor of restraining stock from running at large in said township, under the terms of said act, for a period of more than a year and a half, and thereby and on account thereof a great majority of the people in Sulphur Township have permitted their fences with which they had their tillable lands inclosed to go down, decay and ruin, and that they have built pastures in which to inclose and keep their live stock, all of which has been done on account of the laches of these plaintiffs and of others residing in that township who are cooperating and aiding or assisting these plaintiffs in their efforts to declare null and void the stock law election held in said township at the time aforesaid, and that to permit the plaintiffs and all others who are opposed to the stock law in Sulphur Township at this date to come in and upset the conditions that have been brought about and that now exist therein, by reason of their laches in bringing this suit, would be ruinous, unjust and inequitable to a great majority of the people living therein."

The cause was submitted on the pleadings and upon oral testimony taken in open court by agreement of the parties, which has been properly brought into the record. The trial court entered a decree in favor of the appellees, dismissing the complaint for want of equity, from which is this appeal.

The appellants contend that the decree of the trial court is erroneous for two reasons: first, because the act is unconstitutional; and second, that the provisions of the act requiring notice of the election were not complied with.

1. Section 7 of the act provides that any person over the age of twenty-one years may impound stock or animals running at large, in a township where the law has become operative, until his fees and damages, caused by such animals, are paid.

Section 8 provides for notice in writing to the owner, if known, and that the owner shall be entitled to possession of the impounded stock "upon payment or tender of the fees, costs, and damages."

Section 9 provides in part that "the damages caused by such stock or animals may be ascertained by any three disinterested householders of such territory chosen by the parties interested, or by some justice of the peace therein, who shall take an oath to assess such damages fairly and honestly, and their assessment shall be final."

Section 10 provides that if the owner, after receiving notice, shall neglect to pay the fees and damages, the person impounding the stock may sell the same at public auction to the highest bidder for cash, after having given five days' notice of the time, place and terms of sale, etc., and apply the proceeds of the sale, after deducting the cost thereof, to the satisfaction of his fees and damages.

Section 11 provides that nothing in the act shall deprive the impounder from enforcing his claim for fees and damages in a court of competent jurisdiction, and gives him a lien on the impounded stock for the payment of his claim for fees and damages.

Section 12 provides as follows: "Should any part of this act be held to be unconstitutional, it shall nevertheless be held valid as to such parts as are constitutional."

Now, it will be observed that the act does not lay any penalty upon the owner of stock for permitting same to run at large in violation of the act, and make such penalty payable to the impounder. It is made a misdemeanor for any owner or keeper of stock to knowingly permit same to run at large in any township where the act is operative, but the penalty therefor is not made payable to the impounder of the stock. While the impounder of stock under the act is allowed any damages sustained by him caused by such animals, nevertheless we are convinced, after a careful consideration of the act as a whole, that all of the provisions of the act relating to damages may be eliminated, and a perfect workable act will remain. It seems clear to us that the Legislature would have enacted this statute, after all the provisions as to damages had been eliminated, if it had known that these provisions rendered the act unconstitutional. If the act be unconstitutional, it is only so because of these provisions as to damages, and section 12, as we construe it, is a declaration of the purpose of the Legislature not to permit the act to become...