Wright v. Cunningham

• Citation: 91 S.W. 293
• Parties: WRIGHT v. CUNNINGHAM.
• Decision Date: 18 November 1905
• Court: Tennessee Supreme Court

Page 293

91 S.W. 293

WRIGHT v. CUNNINGHAM.

Supreme Court of Tennessee.

November 18, 1905.

Appeal from Circuit Court, Rhea County; Joseph C. Higgins, Judge.

Action between J. T. Wright and W. H. Cunningham. From a judgment in favor of the latter, the former appeals. Affirmed.

This action was brought to recover only a small sum of money, $2.50, the amount of damages claimed by the defendant for the keep of certain hogs which trespassed upon the land of the defendant; but it involves the constitutionality of an amendment to an act of the Legislature, presently to be mentioned, of a very important character. The circuit judge held the amendment inoperative, and therefore decided the case against the plaintiff below, and he has appealed and assigned errors.

The original statute was chapter 177, p. 408, of the Acts of 1903, and is as follows:

"An act to prohibit the running at large of hogs, sheep, and goats, in Tennessee, in counties having a population by the federal census of 1900, or any subsequent federal census of between fourteen thousand two hundred, and fifteen thousand, and fixing the penalty for violation of the same.

"Section 1. Be it enacted by the General Assembly of the state of Tennessee, that it shall be hereafter unlawful for any owner of hogs, sheep, and goats, to allow same to run at large in counties of Tennessee, having a population by the federal census of 1900, or any subsequent federal census of between fourteen thousand two hundred and fifteen thousand.

"Sec. 2. Be it further enacted, that any damage done by said stock running at large shall constitute a lien upon said stock, and may be enforced by judgment and execution against the owner thereof before any justice of the peace of the counties to which this act may apply.

"Sec. 3. Be it further enacted, that any party upon whom such stock may trespass shall have the right to take up and confine said stock, giving same good feed and attention, and shall be entitled to reasonable compensation for same, and shall have a lien upon said stock for their keep.

"Sec. 4. Be it further enacted, that any violation of the provisions of this act shall be declared a misdemeanor and punishable by a fine of not less than two nor more than five dollars.

"Sec. 5. Be it further enacted, that all laws and parts of laws in conflict with this act be and the same are hereby repealed, and that this act take effect on and after the first day of May, 1903, the public welfare requiring it."

Passed March 24, 1903.

Approved March 26, 1903.

The amending act is chapter 316, p. 670, of the Acts of 1905, and is as follows:

"An act to amend chapter 177 of the Acts of 1903, being an act to prohibit the running at large of hogs, sheep, and goats in counties having a population by the federal census of 1900, or any subsequent federal census of between fourteen thousand two hundred and fifteen thousand, and fixing the penalty for the violation of same.

"Section 1. Be it enacted by the General Assembly of the state of Tennessee, that chapter 177 of the published Acts of 1903 of Tennessee be so amended as to strike out section 2 and provide that this act shall only apply to such counties as may adopt the same by a majority vote of the legal voters of said county at a legal election held for said purpose by the commissioners of election: Provided further, that the tickets used in said election shall be in conformity of law, and in such districts where the Dortch law applies the tickets shall conform thereto. The ticket shall provide for those having the small stock law, `for the small stock law' and those `against said law.' The election commissioners, as in other elections, shall prepare the returns and declare the result and all laws in conflict are hereby repealed."

Passed April 6, 1905.

Approved April 12th, 1905.

The population of Rhea county, by the federal census of 1900, was 14,318, and the act of 1903, therefore, applied to it.

D. L. Snodgrass, B. G. McKenzie, and W. L. Givens, for appellant. V. C. Allen and Burkett, Miller, Mansfield & Swofford, for appellee.

NEIL, J. (after stating the facts).

1. It is insisted for the defendant that the expression "this act," appearing in the act of 1905, applies to that act itself, with the result that the effect of the amendment is made to depend upon the vote of such counties as may adopt it. This is an incorrect view. The expression quoted has reference to the act as amended.

2. It is insisted that the amendment is fatally obscure because it contains the following sentence: "The ticket shall provide for those favoring the small stock law, `for the small stock law' and those `against said law.' Evidently there was an omission between the words "and" and "those" of the word "for," and after the word "those" an omission of the expression "opposing the small stock law." As thus corrected, the sentence would read: "The ticket shall provide for those favoring the small stock law, `for the small stock law,' and for those opposing the small stock law, `against the small stock law.' The word "said" in the expression "against said law," of course, refers to the small stock law, and the intention of the act was that the ticket of those opposing the law should read "against the small stock law."

It is a well-known canon of construction that an ambiguous or meaningless clause in a statute may be rejected, or words supplied by intendment to express the obvious intention of the Legislature. Nichols & Shepherd Co. v. Loyd, 111 Tenn. 145, 76 S. W. 911.

3. It is insisted that the effect of the act of 1905 was to repeal the act of 1903. It is said that, while purporting to amend the former act, the latter really repeals it. The argument in support of this proposition is that the act of 1905 converts the act of 1903 from one in operative effect to an act that does not take effect, except upon a contingency. While it is sometimes difficult to distinguish between an amendment and a repeal, we do not think that the present case presents an instance of such difficulty. The body of the act remains as before, with the exception of section 2, which is stricken out, and the effect of the second act is simply to convert the body of the first, with the exception stated, from a law immediately operative into one effective only upon its being adopted by the vote of the counties referred to in such latter act. We think that such a change may be made by way of amendment, if it be constitutional to make the operative effect of a statute depend upon the vote of the people to be affected thereby. The latter is a subject which will be presently considered.

4. It is insisted that the act of 1905 contains two subjects, and hence violates section 17 of article 2 of the Constitution, which provides that: "No bill shall become a law which embraces more than one subject, that subject to be expressed in the title. All acts which repeal, revive, or amend former laws shall recite in their caption, or otherwise, the title or substance of the law repealed, revived or amended."

The objection made under this head is that the caption of the act of 1905 makes no mention of the election provided for in the body of the act; hence that the body is broader than the title. The rule upon this subject is stated in Hyman v. State, 87 Tenn. 109-111, 9 S. W. 372, 1 L. R. A. 497. Referring to the act under consideration in that case, the court said that the title to the amendatory act in no way indicated the character of the amendment beyond a correct recital of the title of the act amended. The court then continued: "It is not, however, important that the title of an amendatory act shall do more than recite the title or substance of the act amended, provided the amendment is germane to the subject of the original act and is embraced within the title of such amended act. In other words, if the title of the original act is sufficient to embrace the matter covered by the amendment, it is unnecessary that the title of the amendatory act should of itself be sufficient."

This rule was referred to and approved in the recent case of Goodbar v. Memphis, 113 Tenn. 20, 35, 81 S. W. 1061.

The question, then, to be determined is whether the provisions in respect of the election mentioned in the act of 1905 are germane to the matters embraced under the caption of the act of 1903. If we assume that the act of 1903 might have been so framed under its caption as to provide that it should become operative upon the contingency of an election by the people, then the matter contained in the present amendment would be germane. We think it clear that, if such provisions in statutes are constitutional at all, the act of 1903 might have been so framed, since the time when an act shall go into effect must necessarily always be germane, not only to its title, but to all of its contents.

5. It is insisted that the act of 1905 suspends a general law for the benefit of particular individuals, contrary to Const. art. 11, § 8, which provides: "The Legislature shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land; nor to pass any law granting to any individual or individuals, rights, privileges, immunities, or exemptions other than such as may be, by the same law extended to any member of the community who may be able to bring himself within the provisions of such law."

It is not insisted in the brief of defendant's counsel that the act of 1903 is a partial law, but it is referred to and treated as a general law. The insistence is that the act of 1905 violates the section of the Constitution last quoted, in that it suspends the said act of 1903. We are of opinion that this is a mis-conception of the meaning of the word "suspend," as used in the section of the Constitution quoted. The act of 1905, if it be operative at all, must take effect according to...