Harrington v. White

• Decision Date: 05 November 1917
• Docket Number: (No. 207.)
• Parties: HARRINGTON et al. v. WHITE et al.
• Court: Arkansas Supreme Court

199 S.W. 92

HARRINGTON et al. v. WHITE et al.

(No. 207.)

Supreme Court of Arkansas.

November 5, 1917.

Appeal from Circuit Court, Columbia County; J. M. Barker, Judge.

Action by F. E. White and others against Arkie Harrington and others. From a decree for complainants, defendants appeal. Decree reversed, and cause remanded, with directions to dismiss the complaint for want of equity.

McKay & Smith, of Magnolia, for appellants. Stevens & Stevens, of Magnolia, for appellees.

McCULLOCH, C. J.

This appeal brings in review a special statute enacted by the General Assembly of 1915 (Acts 1915, p. 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 25 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 animals "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 McNeil, 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, 37 Am. Rep. 6; 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 Railway 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 an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made."

Applying that test to the case in hand, it it 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...