Holt v. Howard

• Decision Date: 15 November 1943
• Docket Number: 4-7156
• Citation: 175 S.W.2d 384,206 Ark. 337
• Parties: Holt v. Howard
• Court: Arkansas Supreme Court

175 S.W.2d 384

206 Ark. 337

Holt v. Howard

No. 4-7156

Supreme Court of Arkansas

November 15, 1943

Appeal from Carroll Circuit Court, Eastern District; J. W. Trimble Judge.

Reversed.

F O. Butt, for appellant.

A J. Russell, for appellee.

McFaddin J. Holt, J., not participating.

OPINION

McFaddin, J.

This appeal requires the construction of § 339 of Pope's Digest, (which is § 1 of Act 193 of 1929) consisting of one sentence of 419 words.

There are several stock districts in Carroll county which, together, embrace a majority of the area of the county. Each of these districts was organized by the county court pursuant to Act 156 of 1915, with amendments. There is no stock district in Carroll county created by act of the legislature. In December, 1942, appellees, C. L. Howard and others, attempting to proceed under § 339 of Pope's Digest, filed in the Carroll county court a petition signed by a majority of the qualified electors in the territory affected, praying that certain described territory be added to an existing stock law district in that county. Appellants, John Holt and others, appeared as remonstrants. The county court granted the petition, and the remonstrants appealed to the circuit court, where the cause was heard on an agreed statement of facts, substantially as above detailed and as appear herein. The circuit court granted the petition; and from the order overruling the motion for new trial, remonstrants have brought this appeal.

It is conceded in the briefs that: (1) If § 339 of Pope's Digest is constitutional and, also (2) if it applies to Carroll county under the facts herein, then the judgment of the circuit court should be affirmed; otherwise, it should be reversed. It is well settled that this court will refrain from passing on the constitutionality of any statute unless such decision is necessary to a determination of the pending case. Smith v. Garretson, 176 Ark. 834, 4 S.W.2d 520; and cases cited in West's Arkansas Digest, "Constitutional Law," § 46. So, we forego any consideration or discussion of the constitutionality of § 339 of Pope's Digest; and pass to the other question, i.e., the applicability of § 339 of Pope's Digest to Carroll county under the facts in this case.

This § 339 of Pope's Digest (hereinafter referred to as the Act of 1929) was before this court in the case of Wright v. Badders, 181 Ark. 1124, 29 S.W.2d 671; and headnote No. 2 of our official report of the case says: "Acts 1929, No. 193, providing for annexation of territory to a stock law district, applies only to districts created by the legislature." But appellees here say that the opinion does not support the headnote, and that the opinion only decided that the act had no application to the facts in that case because, whatever the construction of the act, no stock law district in Cleburne county had been created by act of the legislature, and a majority of the area of Cleburne county was not embraced in stock law districts organized under any procedure. In lines 11 and 12 on page 1126 of the official report, in quoting from the Act of 1929, there is a typographical error. We are there shown as quoting the act: "or where no portion of the county has been created. . . ." The correct quotation from the act is: "or where any portion of a county has been created. . . ." The context of the opinion clearly shows the error to be typographical. Furthermore, the case mentioned Act 205 of 1927, and failed to state that the act was unconstitutional. Such was the holding of our court in Johnson v. Simpson, 185 Ark. 1074, 51 S.W.2d 233. The conclusion reached in the case of Wright v. Badders is correct; but since the opinion used the expression "majority of the area of the county," it may possibly be susceptible of appellees' contention; so we consider the case at bar as though it were one of first impression.

Appellees, Howard et al. urge that the Act of 1929 (§ 339 of Pope's Digest) should be construed to mean that in all of the counties where either (1) a majority of the area of the county has been organized into a stock district (districts), or (2) where any portion of the county has been created into a stock district by an act of the legislature, then in either instance (1 or 2 above) the county court may annex any township or part thereto to such district by following the procedure of § 339. In other words, the appellees contend that words 7 to 23 in the act apply to one type of district, and words 24 to 118 of the act apply to another type of district; and that words 119 to 419 apply to and affect both types.

On the other hand, appellants contend that the act refers only to those stock districts organized by special act of the legislature, and that words 39 to 45 ("by an act of the legislature heretofore") modify each and both of the previous clauses; and so appellants contend that since no stock law district in Carroll county was created by an act of the legislature, then this § 339 of Pope's Digest does not apply to Carroll county.

These respective contentions demonstrate that the act is ambiguous in meaning and application, and thus it becomes the duty of the court to construe the act to ascertain and declare the legislative intent, which is the true goal of every effort at construction, and is of supreme importance. (Crawford on Statutory Construction, § 158.) In seeking this legislative intent, the courts use all the rules of construction in every case (59 C. J. 944). We reach the conclusion that appellees' contention violates at least two of the canons of construction: one, extrinsic, and the other, intrinsic.

I. Contemporaneous Circumstances. "In seeking to ascertain the legislative intent where the language of the statute is ambiguous, the courts will take into consideration all the facts and circumstances existing at the time of, and leading up to, its enactment, such as the history of the times, the habits and activities of the people, the state of the existing law, and the evils to be remedied by the new act." (59 C. J. 1014.) And again: "While the intent of the legislature is to be found primarily in language of the statute, where such language is vague, ambiguous, or uncertain, the court may look, not only to language but to the subject-matter of the act, the object to be accomplished, or the purpose to be subserved; it may also look in this connection to the expediency of the act, or its occasion and necessity, the remedy provided, the condition of the country to be affected by the act, the consequences following upon its enactment, or various extrinsic matters which throw some light on the legislative intent." (59 C. J. 958.) See, also, McDonald v. Wasson, 188 Ark. 782, 67 S.W.2d 722, and West's Arkansas Digest, "Statutes," §§ 214 and 215, and Crawford on Statutory Construction, § 210.

Looking at the conditions concerning stock law districts prior to Act 193 of 1929, it will be ascertained that we did not then (and do not now) have any statute for the organization of stock law districts throughout all of the seventy-five counties of the state. Act 57 of 1883 (now §§ 319 to 344, Pope's Digest) is a step in that direction; but that act, by § 1 thereof (§ 319, Pope's Digest), was limited to counties bordering on navigable streams, etc. Act 156 of 1915 provided that upon a petition of twenty-five per cent. of the qualified electors in the territory to be affected, the county court could call an election on the question of restraining animals from running at large. But § 11 of that act specifically exempted twenty-two counties, and thus made the act a local one. This 1915 act has undergone various amendments, and as now amended is found in Pope's Digest, §§ 335 to 345, inclusive, and § 347. We digress to call attention to the fact that under § 10 of that act as amended (§ 345, Pope's Digest), any township desiring to be added to the original stock law district may petition the county court for an election just as in the formation of the original district. All of the stock law districts in Carroll county were organized under this 1915 act, which provided its own method for the extension of the boundaries of any district organized thereunder.

The need for a general stock law for all parts of the state was not apparent until after 1926, because, prior to that time the legislature passed local or special acts. So, until 1926 stock law districts could be organized either by the order of the county court under the Act of 1883 or the Act of 1915 (and these were sometimes called county court districts), or by special act of the legislature (and these were referred to as districts created by the legislature). In Wright v. Raymer, 165 Ark. 146, 263 S.W. 385,...