Keyes v. Snyder

[145] The opinion of the court was delivered by Valentine, J.: The only questions involved in this case which we shall consider are as follows: First, Is the act of the legislature, entitled, “An act to provide for the regulation of the running at large of animals,” approved February 24th 1872, (Laws of 1872, p. 384,) commonly known as the “herd law,” constitutional and valid? Second, Is a certain order made by the board of county commissioners of the county of Morris, prohibiting certain stock from running at large in a portion of the townships of said county, and not prohibiting such stock from running at large in the whole of the county, valid? We must answer the first of these questions in the affirmative, and the second in the negative. That the act is constitutional and valid, see thé case of Noffzigger v. McAllister, 12 Kas. 315; and that the act does not apply to townships, but to counties, see the act itself. Section 1 of the act reads as follows: “Sec. 1. The board of county commissioners of the different counties of this state shall have power at any session, after the taking effect of this act, to direct by an order what animals shall not be allowed to run at large within the bounds of their county.” There is no provision authorizing the county board to “direct by an order what animals shall not be allowed to run at large within the bounds of” any township, school district, road district, or fraction thereof. The whole power that the commissioners possess to prohibit stock from running at large, they get from said § 1, and unless that should clearly give them the power to prohibit stock from running at large in fractions of the county, we should not hold that they possess any such power. The judgment of the court below is reversed, and cause remanded for further proceedings. All the Justices concurring.