Lammert v. Lidwell

• Decision Date: 31 January 1876
• Parties: WILLIAM LAMMERT, Appellant, v. THOMAS C. LIDWELL, Respondent.
• Court: Missouri Supreme Court

62 Mo. 188

WILLIAM LAMMERT, Appellant,

v.THOMAS C. LIDWELL, Respondent.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

H. D. Wood, with C. H. Howry, for Appellant.

I. By the constitution, Art. 4, § 1, the legislative power is vested solely in the General Assembly, and the act of March 20th, 1873, is void, as being a delegation to the people of such legislative power. ( Ex parteWall, 48 Cal., 279; State vs. Fields, 17 Mo., 529; Barton vs. Himrod, 8 N. Y., 483; Bank of Rome vs. Village of Rome, 18 N. Y., 38; Storm vs. Town of Geneva, 23 N. Y., 439; Thorn vs. Cramer, 15 Barb., 112; Parker vs. Commonwealth, 6 Pa., 507; Commonwealth vs. The Judges, 8 Pa., 391; State vs. Wilcox, 45 Mo., 459; Rice vs. Foster, 4 Harr., 479; State vs. Copeland, 3 R. I., 33; Railroad vs. Commissioners, 1 Ohio N. S., 77; People vs. Collins, 3 Mich., 371; State vs. Weir, 33 Ia., 134; Maize vs. State, 11 Ind., 342; Meshmeir vs. State, 11 Ind., 484; Article on Local Option Laws, 12 A. L. Reg., 130; Sedg. Const. Law., 135, note A.; Weir vs. Cram, 37 Ia., 649.)

E. P. Johnson, for Respondent.

The law under which the cattle were arrested was constitutionally enacted and adopted, and, even if the first law was faulty in some respects, it is cured by the second. (Laws Mo. 1873, p. 70, and 1874, p. 239; State ex rel. Dome vs. Wilcox, 45 Mo., 458; State ex rel. Henderson vs. Co. Court Boone County, 50 Mo., 317; State ex rel. Robbins vs. Co. Court New Madrid County, 51 Mo., 82; Hall vs. Bray, 51 Mo., 288; Township Organization Law, 55 Mo., 295.)

WAGNER, Judge, delivered the opinion of the court.

This was an action to recover the possession of twelve head of cattle, the property of plaintiff, alleged to be wrongfully detained by defendant. The defendant, who acted as one of the constables of St. Louis county, justified the taking and detention of the cattle, under and by virtue of an act of the legislature of this State, approved March 20, 1873, entitled “An Act to prevent domestic animals from running at large in those counties which, by a majority vote, may decide to agree thereto” (Sess. Acts 1873, p. 70), and of an act of the legislature, approved April 1st. 1874, entitled, “An act to restrain domestic animals from running at large in the county of St. Louis, and to provide for the safe keeping and sale thereof.” (Sess. Acts 1874 p. 239.)

A demurrer was filed to the answer, upon the ground that the matters therein pleaded constituted no defense to the plaintiff's cause of action. The demurrer was overruled, and the plaintiff declining to plead further, the interest of defendant in the property was, in accordance with the stipulation, assessed at $20, and on motion of defendant a judgment for that sum was entered in his favor.

The only questions presented by the record are, whether the acts referred to are constitutional and valid. The first section of the act of 1873 declares that the county court of any county in this State, shall, upon petition of one hundred freeholders of the county, at any general election, and may, upon such petition of one hundred freeholders, at any special election, cause to be submitted to the qualified voters of the county the question of restraining any domestic animals of the species of horse, cattle, mule, ass, swine, sheep or goat, from running at large, by a ballot, to be written or printed, for restraining any one or all of the species of horse, cattle, mule, ass, swine, sheep or goat, or against restraining the same, to be canvassed and returned in like manner as votes for State and county officers.

Section 2 provides, that if a majority of the legal voters of the county, voting at the election, are in favor of adopting a stock law, then such county shall be governed by the provisions of the act, from and after one hundred and fifty days after it has been so adopted by the legal voters of the county.

The third section makes it unlawful, in any county adopting the act, for any animal, or animals, of the species named, to run at large outside of the enclosure of the owner, and provides for taking them up, and if they are not reclaimed within a certain time, and the owner does not make a reasonable compensation for feeding and taking care of them, they are to be regarded as estrays, and dealt with accordingly.

By the constitution of this State the legislative power is vested in the General Assembly, composed of the senate and house of representatives. They must exercise the legislative authority in the enactment of laws, and they cannot delegate their trust. The legislature cannot propose a law and submit it to the people to pass or reject it by a general vote, for that would amount to legislation by the people. But a law may be passed which is complete in itself, to take effect in a future contingency, or upon the happening of an event.

The question has been before this court upon several occasions, and the line of distinction has been drawn in reference to the different character of such laws. There is a general law upon the statute in regard to the incorporation of towns, investing the county courts with power to declare them incorporated upon the performance of certain conditions by the inhabitants. This law was contested for the reason that it was a delegation of political power, and that the proceedings of the court were legislative in their character. But the statute was decided to be valid, on the ground that the corporation derived all its power from the law, and that the court merely gave the law application when certain conditions were performed by the inhabitants. (Kayser vs. Brennen, 16 Mo., 88; State vs. Weatherby, 45 Mo., 17.) So, acts of the legislature authorizing towns, cities and counties to subscribe stock in corporations, and incur expenses for different purposes, have been uniformly upheld. The validity of such laws has never been doubted since the decision in the City and County of St. Louis vs. Alexander (23 Mo., 483). The provision in the statute authorizing cities and towns to organize for school purposes, upon a vote of the people, has been declared constitutional (State vs. Wilcox, 45 Mo., 458), and the township organization law was declared not to be liable to any objection, as it was a law which took effect from and after its passage, and where a majority of the voters in a county voted for it, their votes did not create the law, but placed the county voting for it within its provisions. (Town. Organ. Law, 55 Mo., 295.)

It may now be conceded as the established doctrine, that statutes creating municipal corporations or imposing liabilities upon municipalities, or authorizing municipalities to incur debts and obligations, or to make improvements, may be referred to the popular vote of the districts immediately affected--that is to say, the people of such districts may decide whether they will accept the incorporation or will assume the burdens. This is the prevailing rule in reference to local measures. But in all these cases, the legislature had enacted a complete and valid law, according to the prescribed usages governing the passage of laws, and the happening of the contingency or the future event, which furnishes the occasion for the exercise of the power, gives no additional efficacy to the law itself. It derives its whole vigor and vitality from the exercise of the legislative will, and not from the vote of the people. But no body but the legislature can make or repeal a law. The provision of the road law of 1851, which declared that if the county court of any county should be of opinion that the provision of the act should not be enforced, they might, in their discretion, suspend the operation of the same for any specified length of time, and thereupon the act should become inoperative in such county for the period specified in such order; and, thereupon order the roads to be opened and kept in good repair under the laws heretofore in force, or the special acts on the subject of roads and highways, were adjudged to be unconstitutional and void in this court, as attempting to confer upon the county courts legislative power. (State vs Fields, 17 Mo., 529.)

In one of the leading cases on the subject (Barto vs. Hinrod, 4 Seld., 483), the legislature of New York framed a school...