Harrington v. White

• Decision Date: 05 November 1917
• Docket Number: 207
• Citation: 199 S.W. 92,131 Ark. 291
• Parties: HARRINGTON v. WHITE
• Court: Arkansas Supreme Court

199 S.W. 92

131 Ark. 291

HARRINGTON v. WHITE

No. 207

Supreme Court of Arkansas

November 5, 1917

Appeal from Columbia Chancery Court; James M. Barker, Chancellor reversed.

1. The act is not a delegation of legislative authority. 35 Ark. 70; 37 Id. 374; 141 Ala. 84; 11 Ariz. 430; 46 Cal. 240; 42 Conn. 364; 62 Fla. 211; 234 Ill. 146; 109 Me. 48; 200 Mass. 152; 51 U.S. (L. Ed.) 523; 35 Id. 294, and many others.

2. The last sentence in section 4 is not in conflict with section 23, Art. V, Const. 102 Ark. 411; 121 F. 283.

3. Section 1 is not void for ambiguity. 91 Ark. 5.

4. The bill properly passed the Legislature. 40 Ark. 215; 61 Id. 226, 238; 90 Id. 600, 603; 110 Id. 269; 90 Id. 174.

5. Notice of the result of the election was sufficient. 77 Ark 161, 166; 39 Am. & E. Ann. Cases 707-8; 53 Am. Dec. 69; 50 Ark. 266; 9 R. C. L. 992.

6. Citizens of cities and towns were not disqualified to sign the petition. 63 S.W. 884; 3 C. J. 175.

Decree reversed and cause remanded.

Stevens & Stevens, for appellees.

1. The act is void as it delegates legislative authority. 51 U.S. (L. Ed.) 523; 35 Ark. 69; 37 Id. 374, 382; 91 S.W 298; 104 Ark. 595; 110 Id. 534

2. Section 4 extends the estray law by reference to its title only. 49 Ark. 131-3-5; 52 Id. 294-6; 6 So. 119; 11 Id. 414.

3. The act never passed the Legislature. 40 Ark. 200; 72 Id. 565; 41 Id. 471; 40 L. R. A. 200; 38 Id. 74.

4. The act is vague, indefinite and uncertain. It is contradictory. 44 Cent. Dig. 2837; 64 N.W. 365; 66 Id. 658; 37 N.J.L. 228; 19 Vt. 129; 59 N.Y. 53.

5. The proper notice was not given. 116 Ark. 291; 74 S.W. 773; 105 Id. 539.

6. Citizens of cities and towns had no right to sign the petition or vote. 110 Ark. 532; 104 Id. 583; Black on Int. Laws (2 Ed.), § 105, p. 345, 331-2-3.

7. "Township" means political township. 54 Mich. 641; 40 N.J. 302; 29 Ark. 354.

OPINION

MCCULLOCH, C. J.

This appeal brings in review a special statute enacted by the General Assembly of 1915 (Acts of 1915, page 676), for the creation of districts wherein live stock is to be prevented from running at large, and appellees, who were plaintiffs below, attack the validity of the statute and the proceedings pursuant thereto organizing a district. The statute provides in substance that whenever twenty-five per cent of the voters of any three or more townships situated in a body in any county shall petition for an election on the question of restraining horses, mules, cattle, swine, etc from running at large, the county court shall make an order for such an election in those townships; that if the vote of a majority at the election shall be in favor of enforcing the law restraining the running at large of animals in the given territory, the clerk of the county court shall enter the result of the election upon the records of said court and give notice of the result, and that six months thereafter it shall be unlawful for the owners of such animals to permit the same to run at large in the territory. The statute provides that it shall be lawful for any person to take up stock found running at large inside of the prohibited territory, and to keep the same until compensation be paid, and that notice of the taking up of the stock be given if the owner be known, otherwise, that such animal "shall be deemed to be strays and shall be dealt with as required by law with respect to taking up such property as strays, under the estray law of this State." The statute further provides for an appraisement to ascertain the compensation for the keep of the animals while restrained and for the damages caused by depredation of animals while at large.

The particular district now under review was formed in Columbia County, and is composed of the townships of McNeill, Magnolia and Buena Vista, which lie in a body. Appellees instituted this action in the chancery court of Columbia County to enjoin appellants from taking up stock running at large in the townships mentioned. The chancery court held that the statute and the proceedings thereunder were void and rendered a decree granting the relief prayed for, enjoining appellants from taking up stock pursuant to the terms of the statute. No question is raised as to the right of appellees to relief in equity instead of resorting to an action at law for damages, so we will not discuss that question, but will proceed, in response to the argument of counsel, to determine the questions they present concerning the validity of the statute and the proceedings thereunder.

It is insisted, in the first place, that the statute is void because it is an attempt to delegate legislative authority. It seems plain to us, however, that the statute is not a delegation of legislative authority, but comes within the rule that the Legislature may "make a law to delegate the power to determine some facts or state of things, upon which the law makes or intends to make its own action depend." Boyd v. Bryant, 35 Ark. 69; Nall v. Kelley, 120 Ark. 277, 179 S.W. 486. In each of the cases cited we approved the rule announced by the Supreme Court of Ohio in Cincinnati, etc., Rd. Co. v. Commissioners, 1 Ohio St. 77, as follows: "The true distinction is between the delegation of power to make the law, which necessarily involves the discretion as to what it shall be, and conferring authority or discretion as to its execution to be exercised under and in pursuance of the law. The first can not be done. To the latter no valid objection can be made." Applying that test to the case in hand, it is plain that the statute does not amount to a delegation of the legislative power, but on the other hand the Legislature exercised its power by declaring what the law shall be when put into operation in a given locality by ascertainment of certain facts, i. e., the will of the majority in the given locality to be affected.

It is next contended that the statute was never legally passed by the General Assembly for the reason, it is argued, that certain amendments adopted by the House were not, according to the records, adopted by the Senate. The history of the passage of the bill, as reflected by the records in the office of the Secretary of State, is as follows: It originated as a House bill and after amendments were adopted in the House exempting eight counties named therein from its operation it was duly passed by that body and sent to the Senate for consideration. The journals of the Senate recite that the bill was amended by adding to the exemption clause the counties of Monroe, St. Francis Arkansas and Crittenden, and that the bill as amended was duly passed and returned to the House. The journals of the House recite an amendment by the Senate adding the counties of Monroe, St. Francis, Arkansas, Crittenden, Drew, Desha, Bradley and Union to section 11 of the bill, which is the section exempting certain counties from the operation of the statute. The journals also show that the amendment was concurred in by the House and engrossed into the bill, and that the bill as thus amended was finally voted on and passed. The enrolled bill which was signed by the Governor and filed in the office of the Secretary of State, includes the last four mentioned counties as being exempted. The original bill has been lost. Two of the counties originally put into the exemption clause by the House appear in pencil in the engrossed bill. The state of the record concerning the passage of the bill, therefore, is that the enrolled bill as signed by the Governor is complete on its face, and is in accordance with the recitals of the House journal, but the Senate journals fail to recite that the counties of Drew, Desha, Bradley and Union were included in the amendment adopted by that branch of the General Assembly. The question presented, therefore, is whether the omission of those counties from the recital of the journal of the Senate is sufficient to raise the presumption that they were not included in the amendment acted upon by the Senate, or whether the presumption in favor of the regularity arising from the face of the enrolled bill as signed by the Governor should prevail, notwithstanding the silence of the Senate journals on the subject of including those four counties in the exemption clause. An act of the Legislature signed by the Governor and deposited with the Secretary of State raises the presumption that every requirement was complied with, unless the contrary affirmatively appears from the record of the General Assembly, and we think that the mere silence of the journals of the Senate as to the inclusion of certain counties in the amendment to the exemption clause is not sufficient to overcome the presumption of regularity. Chicot County v. Davies, 40 Ark. 200; State v. Corbett, 61 Ark. 226, 32 S.W. 686; State v. Bowman, 90 Ark. 174, 118 S.W. 711; The Mechanics' Building & Loan Association v. Coffman, 110 Ark. 269, 162 S.W. 1090. The application of this rule is, of course, limited to those things which the Constitution does not require that the journals of the respective Houses of the General Assembly shall show. The rule does apply, however, to a case like this where there is no constitutional requirement that the journals shall recite the substance or contents of an amendment. There is an apparent conflict between the journals of the two Houses which arises merely from the silence of the...