Wilson v. Surety Company

• Decision Date: 11 March 1913
• Citation: 31 S.D. 175,140 N.W. 263
• Parties: WESLEY J. WILSON, Plaintiff and respondent, v. WESTERN SURETY COMPANY, et al., Defendant and appellant.
• Court: South Dakota Supreme Court

31 S.D. 175, 140 N.W. 263 (1913)

WESLEY J. WILSON,

Plaintiff and respondent,

v. WESTERN SURETY COMPANY, et al.,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Potter County, SD

Hon. J. H. Bottum, Judge

Affirmed

Joe Kirby

Attorney for Appellant.

Tisk & Sargent

Attorneys for Respondent.

Opinion filed March 11, 1913

McCOY, J.

There was a verdict and judgment for plaintiff in the circuit court from which defendant Western Surety Company appeals. Plaintiff complained that defendant Hanson, in the fall of 1907, was the owner of a steam threshing machine, and that, while moving said threshing machinery over, the prairie in the vicinity of plaintiff's property, negligently permitted the fire to escape from the engine and set fire to the surrounding grass, and that a high wind drove and communicated said fire to plaintiff's property, consisting of about 40 tons of hay, of the value of $120, and wholly consumed and destroyed the same; that the said Hanson had entered into a bond, with the defendant Western Surety Company, surety, under the provisions of article 29, c. 27, Revised Political Code, and this action was instituted to recover the value of said hay as damages under the provisions of said bond.

The first contention of appellant is that the said statute (article 29, C. 27, Revised Political Code), under and by virtue of which said bond was given, is unconstitutional and void, in that the title to the act attempting to pass the same did not refer thereto the specific contention being that said article 29, and the matters and provisions therein contained, were originally contained in, chapter 145, Laws of 189d, and that said chapter 145, Laws of 1890 was expressly repealed by chapter 199, Laws of 1903, and that the title to the act passing and enacting the Revised Political Code of 1903 wad not sufficient, under section 21, art. 3, Const., providing that "no law shall embrace more than one subject which shall be expressed in its title." It is the contention that the whole Revised Political Code is repugnant to this constitutional provision in that it contains more than one subject; and that said article 29 is also in conflict with the Constitution in that the same is not embraced within the title to the act enacting the Revised Political Code. In this contention we are of the opinion that appellant is in error. Johnson v. Harrison, 47 Minn. 575, 50 N.W. 923, 28 Am.St.Rep. 382; Tribune Printing & Binding Co. v. Barnes, 7 N.D. 591, 75 N.W. 904. In the Minnesota case it was held that a title, "An act to establish a Probate Code," was not repugnant to a like constitutional provision as embracing more than one subject. In the North Dakota case it was held that a title, "An act to be known as the political Code of the state of North Dakota," was not repugnant to a like constitutional provision as to an act not embracing more than one subject. Under these decisions the title of the act enacting the Revised Political Code would have been sufficient had it stopped when it said "An act entitled an act to provide a Revised Political Code for the state of South Dakota," and then had not gone...