Erlinger v. Boneau

• Decision Date: 30 June 1869
• Citation: 51 Ill. 94,1869 WL 5280
• Parties: JOSEPH ERLINGERv.JOSEPH BONEAU.
• Court: Illinois Supreme Court

51 Ill. 94

1869 WL 5280 (Ill.)

JOSEPH ERLINGER

v.JOSEPH BONEAU.

Supreme Court of Illinois.

June Term, 1869.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of St. Clair county; the Hon. JOSEPH GILLESPIE, Judge, presiding.

The opinion states the case.

Mr. NATHANIEL NILES and Mr. JAMES M. DILL, for the plaintiff in error.

Mr. WILLIAM WINKELMAN, for the defendant in error.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of replevin, commenced before a justice of the peace, of St. Clair county, by plaintiff in error, against defendant in error, for the recovery of sixteen head of hogs. A trial was had, resulting in favor of plaintiff below. The case was thereupon removed to the circuit court by appeal. On a trial in that court, a jury having been waived by consent of the parties, the court found for the defendant, and rendered a judgment for the return of the property. To reverse that judgment, the record is brought to this court and various errors are assigned.

It appears from the record in the case, that the hogs in controversy were taken up by defendant, under an act of the legislature to prevent domestic animals from running at large. (Sess. Laws, 1867, p. 97.) That both parties were residents of French Village precinct, in St. Clair county. That the fences surrounding the premises, on which the hogs were found when taken up by defendant, were in bad condition, and insufficient to turn stock. That the hogs were taken up on Monday, the 29th of June, and notice or other steps were not taken in reference to the disposition of the same until Wednesday, July 1st, 1868, when plaintiff was notified of the impounding of his hogs. It was admitted on the trial below, that the law under which the hogs were seized had not been ratified by a majority of the legal voters of St. Clair county. But that at the November election, 1867, a majority of all the votes cast in French Village precinct, were for “keeping up stock.”

The first section of the act referred to declares, that from and after the first day of March, 1868, and for all time thereafter, it shall not be lawful for the owners of any domestic animals of the species of horse, cattle, mule, ass, sheep, hog and goat, to suffer the same to run at large in the county of Monroe; and all such animals found running at large in said county after that day, may be taken up by any householder of the county, who is required to keep them safely, in his stable, lot or inclosure, and provide them with a sufficiency of proper food and water until taken away, according to the provisions of this act.

The second section of the act makes it the duty of the person taking up such animal, within two days thereafter, to notify the owner thereof, or the person from whom the animal has escaped, if a resident of the county and known to the person impounding such animal, either verbally or by written notice left at the usual abode of the owner, and if not known, or he is non-resident, then to give notice to the nearest justice of the peace of the county, of the kind and number of animals taken up, with a description thereof; and the justice of the peace is required forthwith to prepare and post three notices, describing the animals, the time and place when and where they were taken up.

The third section declares, that on the application of the owner, if made within ten days after receiving such notice, the property shall be delivered up, he paying the charges fixed by the section for keeping such stock.

The fourth section declares, that if the owner shall fail to appear within ten days after such notice and prove and take away his property, it shall be considered and dealt with under the laws of the State as an estray.

The sixth section declares, that if any person fails in taking up such animals to comply with the law, he shall forfeit all claim to compensation, and be liable to the owner for all damages sustained by reason of such negligence or failure to comply with the requirements of the law.

The eighth section declares, that the act shall not be in force until the same shall be ratified by a majority of the legal voters of the county. But it contains a proviso, “that this law shall, from and after the said first day of March, 1868, be in full force and effect in any of the election precincts of said county, where a majority of the legal votes shall be given for ‘keeping up stock.’ ”

The tenth section provides for submitting the act to the voters of the county at any subsequent November election, and declares that if a majority vote for the same, it shall take effect and be in force from and after the first day of the next succeeding March, in the whole county, and in any precinct in the county where, at any submission of the question, a majority of the votes cast shall be, “For keeping up stock.”

The eleventh section declares, that the provisions of the law shall apply to St. Clair and a number of other counties which are enumerated. These are the several provisions of the act which are necessary in the consideration of this case.

It is urged that when the law was rejected by the majority of the votes cast at the election in the county, the law failed to become operative in any precinct in the county. Although awkwardly expressed in both the eighth and tenth sections, still there seems to be no doubt that the only fair and reasonable construction the language will bear is, that if a majority of the votes cast in the county had been in favor of keeping up stock, then the law would have been in force throughout the county, although in some of the precincts the majority might have been against the proposition, and that it should become operative in such precincts as voted for the proposition,...