Allen v. Walden

HAYES, J. This is an action in replevin brought originally by defendant in error against plaintiff in error to recover the possession of one hog. There is no controversy about the facts. Both parties to the action are residents of Cherokee county. Cherokee county lies in that portion of the state which, before the admission of the state, constituted the Indian Territory. Defendant in error, who is admitted to be the owner of the hog, permitted it to run at large, and it trespassed upon the premises of plaintiff in error, who distrained and held it pending the payment by defendant in error of the damages it had committed on the premises of plaintiff in error. Plaintiff in error made the distraint and had his damages assessed in accordance with the procedure prescribed by sections 11 to 15, inclusive, of the act of the Territorial Legislature approved February 27, 1903 (Sess. Laws 1903, p. 39, c. 1), hereafter referred to as the act of 1903; but defendant in error refused to pay the damages assessed, and brought this action to recover possession of his hog. The judgment of the lower court was in his favor. A determination of the rights of the parties to this action involves the construction and application of the statute to regulate and restrain the running at large of domestic *96 animals extended in force to the state upon its admission, as amended by a subsequent enactment of the State Legislature. Section 1 of the act of 1903 provides: “Every owner of swine, sheep, goats, stallions or jacks, shall restrain them at all times and seasons of the year, fom running at large, in the Territory of Oklahoma.” Section 2 of the same act reads: “All domestic animals other than those mentioned in section one hereof, shall be, by the owner thereof, restrained from running at large in said territory, unless permitted to run at large as hereafter provided in this act.” Sections 3 to 10, inclusive, provide for the calling and holding of elections in stock districts to determine whether any of the animals included in section 2 shall be exempted from the operation of said section, and be permitted to run at large. Section 38 ¡provides that section 2 shall not apply to any portion of the territory lying west of the one hundredth meridian, west longitude, except upon the condition thereafter provided in said section. There is no provision in the act whereby the law may in any portion of the territory be suspended as to swine, sheep, goats, or any of the other animals named in section 1. The provisions of this statute were extended in force in the state by the Schedule to the Constitution and the Enabling Act. Le Flore v. Sanders, 24 Okla. 301, 103 Pac. 858. Prior to the admission of the state, the eastern part thereof, commonly known as the Indian Territory, was without any herd law; and, as was said in Le Flore v. Sanders, supra, the sudden extending of the foregoing statute in force in the state found the people in tliat part of the state unprepared for its requirements, and the public demands for relief resulted in the passage at the first State Legislature of an act entitled, “An act to regulate and restrain the running at large of domestic animals.” Sess. Laws 1907-08, p. 22, c. 4. The first section of this act authorizes the county commissioners of any county of the state where stock were not restrained at the time of the adoption of the Constitution to exempt such counties or any district thereof from the provisions of sections 1 and 2 of the act of the Terri *97 torial Legislature of 1903, supra, upon the presentation of a written petition signed by a majority of the legal voters of such county or district as cast at the state election held September 17, 1907. Section 2 authorizes and directs the county commissioners of any such county, upon the presentation of such petition, to make an order suspending the stock law until such time as the people may vote on same as provided by law. Section 3 authorizes the county commissioners, when they act under the provisions of section 1, ■to provide whether any or all the animals enumerated in the section may run at large. These sections of the act were considered by this court in Le Flore v. Sanders, supra, where it was held that the act clearly authorizes the county commissioners to suspend sections 1 and 2 of the act of 1903 as to any or all the animals mentioned in either of said sections of the act of 1903, except the' two classes named, to wit, jacks and stallions, until such time as the question whether all domestic animals shall be permitted to run at large is submitted at an election to be held in the manner provided by the territorial act of 1903. In the case at bar the residents of that portion of Cherokee county in which the parties to this action reside prior to the 4th day of February, 1908, presented a petition, containing a majority of the electors within the townships therein named, to the board of county commissioners of that county, praying that the domestic animals in said townships be permitted to run at large. On’ February 4, 1908, the board of county commissioners acted upon said petition and ordered that hogs should be kept in inclosures after March 1, 1908, and that all other stock, except jacks and stallions, should be allowed'to run at large. The act of the first state Legislature, authorizing the county commissioners of certain counties to exempt their county or districts therein from the operation of the herd law, did not become effective until May 21, 1908, and at the time the board of county commissioners made the foregoing order there was no statute authorizing them to do so. A second order was made by the board of county commissioners on the 9th. day of April, 1909, whereby all stock except jacks and stallions were *98 permitted to run at large in the townships embraced in the former order. This order of the commissioners was made subsequent to the time the act of the state Legislature became effective, but it was made without any petition having been filed therefor. It purports to have been made upon the petition formerly filed upon which the order of February 4, 1908, was made, but that petition was not authorized by any statute, and. was obtained and filed and acted upon by the board of county commissioners prior to the enactment of any law authorizing same or vesting the county commissioners with power to suspend in any manner the herd law, except by an election as provided by thg territorial act of 1903; and the entire proceedings of the commissioners, including the order of April 9, 1909, are void. ,. Since section 1 of the act of 1903 was extended in force in the state upon its admission and continued operative therein until suspended in the manner provided by the act of the first state Legislature, and since no valid order of the board of county commissioners has been' made suspending said section, defendant in error’s hog was unlawfully running at large when restrained by plaintiff in error, and plaintiff in error was entitled to hold same until his damages were paid or the hog sold under the provisions of the statute for the payment of said damages. The importance of this question to the residents of the eastern part of the state and the facts of this case will justify us in making a further suggestion relative to the procedure by the citizens of a district or a county and by a board of county commissioners to suspend the herd law. Section 1 of the act of 1908 authorizes the stock of any county or any district therein to be exempted from the provisions of sections 1 and 2 of the act of 1903. It will be noted that the territory over which the county commissioners of any county may suspend the law is the entire county or any stock district. Section 3 of the act of 1903 makes it the duty of the board of county commissioners of any county, when a petition in.writing, signed by 25 homesteaders or freeholders, legal voters, and residents of the county, is presented to them at *99 regular session, to divide the county into stock districts. Such stock districts' shall embrace not less than 72 square miles nor more than 144 square miles, and be in compact form. It does not appear in the case at bar that Cherokee county has ever been divided into districts, and the petitions filed with the board of county commissioners were not from the voters of any stock district, but consisted of two petitions, one embracing the residents of two townships, and the second petition embracing the residents of another township, who asked that they be adjoined with the two townships that had theretofore petitioned. The proper procedure under the statute would be to file with the board of county commissioners, first, a petition in writing, signed by 25 homesteaders or freeholders, legal voters and residents of the county, asking for a division of the county into stock districts. After such division is made, then a petition from a majority of the voters of any such district, as shown by the votes cast at the election on September 17, 1907, filed with the county commissioners, would authorize the county commissioners to exempt such stock district from the provisions of the law until such time as an election is' held in said district, whereat it is determined that the law shall be in force and 'effect therein. The judgment of the trial court is reversed, and the cause remanded. All the Justices concur.