Robinson v. Perry

The opinion of the court was delivered by

The only question involved in this case is, whether chapter 116 of the laws of 1870 (page 239) is constitutional and valid, or not. The substantial portion of that chapter reads as follows:

“Section 1. That section one of chapter 115 of the laws of the state of Kansas, approved March 1st 1869, be so amended as to read as follows: Sec. 1.-A11 persons owning or having charge of any sheep, shall keep the same from running at large, except as in this act otherwise provided: Provided, That the provisions of this act shall not; apply to the county of Doniphan.’ ”

Said original §1 of chapter 115 of the laws of 1869, (page 229,) reads as follows: “Sec. 1.-All persons owning or having charge of any sheep in Johnson, Chase, Brown, Dickinson, and Atchison counties, shall keep the same from running at large, except as in this act otherwise provided.” Section 2 of said last-mentioned act provides, that “the legal voters of any organized township in the said' counties shall have the right at any township or general election to vote to be exempt from the operations of the preceding section,” etc. Sections 3, 4 and 5 are concerning said election. Sections 6 and 7 provide for suits for damages caus.ed by sheep running at large in violation of said § 1; and § 8 provides for taking up sheep as strays if found running at large in violation of said §1. Now according to the decision made in the case of Darling v. Rodgers, 7 Kas. 592, said chapter 115 of the laws of *250•1869 is unconstitutional and void. It is in contravention of § 17 of article 2 of the constitution, which provides that “All laws of'a general nature shall have a uniform operation throughout the state.” If it were enforced it would prevent the fence laws, stray laws, and other laws of a general nature, which, in effect, permit sheep to run at large, from having “a uniform operation throughout the state;” and therefore it would seem that it ought to be held void. And if it were so" held, then it would be necessary to hold that there was nothing in the act of 1869 (ch. 115) to be amended. The act of 1870 was not intended to be a complete and original law in and of itself. It was intended merely as an amendment of §1 of the- act of 1869, and was intended merely to take the place of that section. And therefore it was not intended by the act of 1870 to absolutely prohibit sheep from running at large in all counties except Doniphan county; but it was only intended to .so prohibit them from running at large in such places only as should not become exempt from the provisions of section one, by a vote of the people had under § 2 of said act of 1869. But said § 2, as we have already stated, was void, and therefore the said act of 1870 could not by any construction have operation as intended by the legislature. We suppose it will hardly be claimed that the passage of the act of 1870 made valid the whole of the act of 1869, from section two to section ten. If it did, it would be an extraordinary kind of legislation; but if it did not, then the act of 1870 could not have operation as intended by the legislature. But said § 1 of the act of 1870 itself violates the provisions of §17, article 2, of the constitution. Tt is in substance a “law of a general nature,” and yet it is not to “have a uniform operation throughout the state.” Doniphan county is excepted from its operation. And the fence laws, stray laws, etc., are laws of a general nature, and yet these laws with respect to sheep, are by the operation of the act of 1870 to have operation in Doniphan county only.

We are constrained to hold that the act of 1870 is unconstitutional and void, and therefore the judgment of the *251court below must be reversed, and' cause remanded for a new trial.