
    Valentine Noffzigger v. Miller McAllister.
    July Term, 1873.
    1. Stock: Wight Herd Law: Act of 1868 Constitutional. Section 1 of the act relating to stock, authorizing the board of county commissioners to “make an order that all persons owning domestic animals of any kind, therein to be specified, shall keep them confined in the night-time for certain portions of the year, to be specified therein,” is constitutional and valid. [Keyes v. Snyder, 15 Kan. 145.]
    
    2. -: Power of County Commissioners: Petition. The county commissioners have no authority to make such an order unless a majority of the qualified electors of the township for which the order is to be made first petition the county commissioners so to do; and an order made without such a petition is void.
    3. -: Order: Recitals. A recital in the order of the county commissioners that such a petition had previously been presented to them is not sufficient evidence of such fact.
    4. -: Petition: Sufficiency. A petition simply “praying for the night herd law to be enforced in said township” is not a sufficient petition upon which to found such an order.
    5. -: Trespass: Damages: Burden of Proof. Where a party sues for trespass upon his uninclosed premises, by stock running at large in the night-time, in violation of a prohibitory order made by the county commissioners, the burden of proving that the order was legally made rests upon the plaintiff.
    [6. Constitutional Law: Statutes. Whenever a law of a general nature is passed by the legislature for the whole state, and is not applied by the legislature to any particular locality thereof, and has no words prohibiting its operation in any particular locality, it is a law having a uniform operation throughout the state, within tire meaning of the constitution, although it may not practically have operation in every part of the state.]
    Error from Bourbon district court.
    The case is stated in the opinion.
    
      *G. 0. French, for plaintiff in error.
    Nothing of proof is lacking; it is a complete ease under the statute. The only question is, is article 1 of chapter 105, Gen. St. 1S68, constitutional? The district court decided that it was not, and upon that ground alone sustained the demurrer to the evidence. The dollars and cents involved is small, yet the interests of hundreds are at stake. It will be granted without argument that “stock” is a proper subject of legislation, and that, therefore, the legislature can pass any general law in relation thereto, provided the law does not require its forfeiture or its transfer to another without trial and judgment in the courts. But counsel for the defendants say the law is not a law regarding stock; that it is simply an act delegating the powers of the legislature to the boards of county commissioners to make a law. If this is so, we agree with them that it is unconstitutional. But it does not delegate power to the county commissioners to fix the terms or conditions upon which the act may be performed, or the obligations thereupon attaching. These are all irrevocably fixed by the legislature, and, wherever called into operation, conclusively govern every step taken.--v.--1 Ohio St. 88. The mere fact that a statute is conditional, — that is to say, made to depend, as in this case, upon a petition of the majority of the qualified electors of the township to the county board before it can be executed, — is not a delegation of the law-making power to the people. If this were all the objection, the law is constitutional. Leavenworth Co. v. Miller, 7 Kan. *479; Peck v. Weddell, 17 Ohio St. 271;. Cooley, Const. Lim. 116-124. Were it otherwise, no school bonds, no bridge bonds, no court-house bonds, no bonds of any kind, would be valid, if issued when their issuance depended upon *the popular vote, incident to a petition presented to county or township boards.
    But it is said that this act is in violation of section 17, art. 2, of the constitution. It will not for a moment be contended but that this is a general law. The provisions of the act are applicable to every county and every township in the state. The only question, then, is, does it have uniform operation throughout the state? This question has been fully answered in Leavenworth v. Miller, 7 Kan. *491. This-so-called “Night Herd Law” is a general law, and by its own force, when put in operation, operates uniformly; or, as it is more clearly •expressed in Darling v. Rodgers, 7 Kan. *599, “pass a law of a general nature, and without any words of application, and it'operates uniformly throughout the entire state.”
    It is further contended that this law, under the decision in Darling t. Rodgers, 7 Kan. *599, is in conflict with the fence law of 1868; and, although it neither in terms repeals nor amends said fence law, it must fall while the fence law stands. The questions involved here are not the same that were involved in the case of Darling v. Rodgers. It is not limited to any particular specified localities, nor does .it limit the fence law to any particular counties.
    
      McGomas & McKeighan, for defendants in error.
    There was no evidence introduced showing that the board of county •commissioners had jurisdiction to make the order in question. The recitals in the record, that a proper petition had been presented, asking for the enforcement of the so-called “Night Herd Law,” were not sufficient to establish the jurisdictional fact. There is no presumption in favor of inferior courts having acquired jurisdiction. It was necessary for the plaintiff to produce the petition, with the affidavit required by the statute, and to prove that the persons purporting to sign the same did in fact sign it, and were in fact qualified electors •of Walnut township. The law of 1868, relating to stock running at large in the night-time, provides for a petition asking that certain domestic animals, “to be *specified in the petition,” be ordered confined in the night-time. The petitioners are to decide what animals they desire restrained. If the petition asked only that horses be confined, the commissioners could not extend the order beyond its prayer, and order that all domestic animals be “shut up” in the night-time. The statute gives them no judgment about it. There is nothing in the order to show what animals were specified, •or that any were. In no view can more be claimed for the record than it recites; and what it recites, even if true, did not confer jurisdiction.
    The judgment below was right, because the act in question dele.gates legislative discretion to a body other than the legislature, upon whom alone such power is conferred. Const, art'. 2, § 1; Bradley v. Baxter, 15 Barb. 123; People v. Stout, 23 Barb. 349; Rice v. Foster, ■4 Har. (Del.) 479 ; Barto v. Himrod, 8 N. Y. 483; Him v. State, 1 Ohio St. 24. According to these cases, Jthe legislature cannot evade the responsibility of legislation by merely preparing the statute, and referring it for adoption or rejection to a vote of the people, or to the decision of any body. The legislature may declare that an enactment shall not become a law until the happening of some event; but the event which shall make it operative must be determined by the legislature, and not be left to the people. It will be observed that this law cannot be sustained under section 21, art. 2, of the constitution, as it in no sense confers legislative power upon the board of •commissioners.
    
      The plaintiff shows no right to recover against the defendant, because he testifies positively that he had no fence around the premises, where the trespass is alleged to have been committed, and the law relied on is unconstitutional, inasmuch as it attempts to limit the operation of the general fence law of 1868. The intention of the legislature probably was to dispense with an inquiry whether the injured party had an absolute legal fence, but not to dispense with the necessity of a fence. The words “condition of his or her fence” could, have no application to a party who had no fence whatever. We contend that chapter 105 is in contravention of the first part of section 17 of article 2 of the constitution, which provides that *“all laws of a general nature shall have a uniform operation throughout the state,” and which has been construed by this court. Darling v. Bodgers, 7 Kan. *592. According to this decision the fence law of 1868 is a law of general nature, and must have “a uniform operation throughout the state.” The (unconstitutional) herd law of 1870 and chapter 105 differ in their limitations upon the fence law only in the manner of effecting the same result. The herd law of 1870 furnishes its own limitation on the general law; the night herd law of 1868 furnishes a rule for its limitation. The proposition, then, to. be considered is, does the night herd law provide for the limitation of the general fence law of the state ? We think that the answer must be in the affirmative. As soon as Walnut or any other township obtains an order from the commissioners, the people in that township, in the night-time, may have fences six inches high, while-the people in every township in the state, not affected by such orders, would be compelled, during the night-time as well as the day, to have-fences “four and one-half feet high.” This case presents the very evils illustrated in Darling v. Bodgers. The plaintiff lives in Walnut township; the defendant in Marion. If the law is valid, the plaintiff’s horses, mules, jacks, and cattle may, in the night-time, wander upon the uninelosed or poorly inclosed premises of defendant, (if' they should be in that condition,) and eat and trample down his oats, and the defendant is without remedy; but if defendant’s horses, mules, or jacks happen to tread ever so lightly on the plaintiff’s field, around which he has no fence whatever, and bite but an oat-blade, defendant must pay- for the injury, and the costs of suit if he resists the demand, because in Walnut township night is holier than the day.
    
      
       Tlie night herd law of 1868 is not repealed, either in terms or by implication, by the general herd law of 1872, Lauer v. Livings, 24 Kan. 273; proof of herd law in force in county presumptive, see St. Louis & S. F. Ry. Co. v. Mossman, 30 Kan. 336; S. C. 2 Pac. Rep. 146.
    
   Valentine, J.

This was an action for alleged trespass by the defendant’s stock, to-wit, colts, upon the real estate and crops of the plaintiff. Only two questions are raised in the case in this court: First, is article 1 of the act of the 'legislature of 1868 relating to* stock (Gen. St. 1002, c. 105) constitutional and valid? Second, if it is, then did the plaintiff in this case introduce sufficient evidence on the trial to show that said article was in actual operation in Walnut township, Bourbon county, at the time that the said alleged trespasses occurred ?

1. We know of no reason why said article should be held to be unconstitutional or invalid. It simply provides that the board of county commissioners of any county may, upon a petition of a majority of the qualified electors of any township, “make an order that all persons owning domestic animals of any kind, therein to be specified, shall keep them confined in the night-time, for certain portions of the year, to be specified in the petition, ” and in the order; and also provides that, for any violation of said order of the county board, the owner of the stock shall be liable in damages to the party injured. The defendant in error gives the following reasons in his brief why said article should be held to be unconstitutional and invalid: (1) “Because the act in question delegates legislative discretion to a body other than the legislature, upon whom alone such power is conferred. Const, art. 2, § 1.” (2) “This law cannot be sustained under section 21, art. 2, of the constitution, as it in no sense confers legislative power upon the board of commissioners.” (3) “Chapter 105 [the said act relating to stock] is in contravention of the first part of section 17 of article 2 of the constitution, which provides that ‘all laws of a general nature shall have a uniform operation throughout the state.’”

These reasons are not sufficient. If the power conferred upon the board of county commissioners by the legislature under said act is legislative power, then the act is valid under section 21, art. 2, of the constitution. If it is administrative power, *the act is also valid under said section, and also under section 1 of article 2 of the constitution. But if it is purely ministerial power, then the act is unquestionably valid under the last-mentioned section of the constitution; for the conferring of ministerial power upon the tribunals transacting county business comes within the acknowledged scope of legislative jurisdiction. Neither is this act in contravention of section 17 of article 2 of the constitution. It was enacted for the whole state, and for every part thereof. Any township in the state may come within the provisions of article 1 of the act, or any township may remain out. In this respect the act resembles many other acts which depend for their practical operation upon the discretion of the county board, or the people, or the happening of certain contingencies. There is always a wide discretion allowed counties and county boards in the building of court-houses, jails, bridges, and other public improvements, and yet no one has ever supposed that the laws authorizing this discretion were invalid because their operation might not be practically and uniformly the same in every county in the state. Whenever a law of a general nature is passed by the legislature for the whole state, and is not applied by the legislature to any particular locality thereof, and has no words prohibiting its operation in any particular locality, it is a law having a uniform operation throughout the state, within the meaning of said constitutional provision, although it may not practically have operation in every part of the state. Leavenworth Co. v. Miller, 7 Kan. *479, *491; Darling v. Rodgers, 7 Kan. *599. If the stock law conflicts with any portion of the fence law of 1868, the stock law and not the fence law must govern. The stock law was passed March 2, 1868, (Gen. St. 1013;) the fence law was passed January 27, 1868, (Gen. St. 495;) therefore the stock law, being the last expression of the will of the legislature, is paramount to the fence law, and must govern where there is a conflict. But the stock law does not technically repeal any portion of the fence law, even if any provisions of the one conflict with any of the provisions of the other. The fence law was to take *effect when published in the statute book, (Gen. St. 495;) but before the statute book was published the stock law was passed, which took effect when the statute book was published, (Gen. St. 1013.) Hence, if the stock law conflicted with any provision of the fence law, it did not technically repeal such provision, but simply prevented the same from ever going into operation.

2. We do not think that the plaintiff in this case introduced sufficient evidence on the trial to show that article 1 of the stock law was ever put into practical operation in said Walnut township. It was shown that the board of county commissioners made the requisite order for that purpose, but it was not shown by any legal evidence, or indeed by any evidence, that the requisite petition was ever presented to the county commissioners. The only statute authorizing the county commissioners to make such an order reads as follows: “Sec. 1. Whenever a majority of the qualified electors in any one of the townships of the counties of this state shall, by petition, ask the board of county commissioners of such county to make an order that all persons owning domestic animals of any kind, therein to be specified, shall keep them confined in the night-time for certain portions of the year, to be specified in the petition, the said board of commissioners shall make such order under their hands, and cause the same' to be entered upon the record of their proceedings.” Gen. St. 1002, c. 105, § 1. The only evidence introduced on the trial to show that said petition was ever presented to the county board was merely the order of the board mentioning the same, which reads as follows: “Whereas, a petition has been presented to the board of county commissioners of Bourbon county, Kansas, by a majority of the qualified electors of Walnut township, in said county, praying for the night herd Icnv.to he enforced in said toivnship, and such petition appearing to be in accordance with the provisions of the statute, it is therefore ordered,” etc.

The defendants objected to the introduction of said order, as testimony, on the ground that the same did not show that the county commissioners had jurisdiction to make said order. *The court overruled the objection, and the defendants at the time excepted. The plaintiff introduced other evidence, and sufficient to prove his cause of action, if he had sufficiently proved the presentation of a sufficient petition to said county commissioners. The plaintiff had no fence, and of course could not recover for said trespasses unless said order was valid. When the plaintiff rested his case, the defendants demurred to the evidence under section 275 of the Code, as amended. Laws 1872, p. 329, § 1 sub. 3. The court sustained the demurrer, and rendered judgment against the plaintiff for costs.

Our decision is as follows: (1) The county commissioners had no authority to make said order without the requisite petition having first been duly presented to them. The petition is a jurisdictional fact, and without it no valid order can be made. (2) A recital in the-order of the county commissioners that such a petition had previously been presented to them is not sufficient evidence of such fact. (3) The petition described in said order, to-wit, a petition “praying for the night herd law to be enforced in said township,” is not a sufficient petition upon which to found such an order. (4) The burden of proving that said order was legally made, rested upon the plaintiff.

The judgment of the court below must be affirmed.

(All the j ustices concurring.)  