Berkshire v. Missouri Pacific Railway Co. , 1887 Mo. App. LEXIS 118 ( 1887 )

Hall, J.

This was an action for double damage on account of the killing of plaintiff’s hogs. The case was tried upon an agreed statement of facts, from which it appears that the defendant, by one of its engines, on the twelfth day of August, 1873, ran over and killed the plaintiff’s hogs; that the hogs went upon the railroad and were killed in Cass county, at a point where the railroad was not fenced, as required by the statute ; that, at said date, the law restraining swine from running at large, being chapter 159, Revised Statutes, was in force ; and that, at said time, the hogs were, with the knowledge and consent of plaintiff, running at large in violation of said law. We are asked to pass upon the question, decided against the defendant by the circuit court, whether the plaintiff, whose hogs were, with his knowledge and consent, running at large in violation of the said act of 1879, can recover damages on account of the defendant’s killing them, on the sole ground of the want of the fence required by statute.

It is stated, in the agreed statement of facts, that the act of 1879 was in force in Cass county at the time-mentioned, viz., August 12, 1883. This statement is not. the statement of a mere fact, but is also, in a certain sense, the statement of a conclusion of law. We shall treat the statement as to the fact as conclusive upon us, but surely the statement as to the conclusion of law should not bind us, if contradicted and refuted by the public laws of the state. For instance, if the act of 1879 was, at the date stated, no longer in force, in this state, by reason of having been repealed by an act of the legislature of the state, in 1883, should we treat the act of 3879 as in force because the parties to this case have so- agreed and stipulated * The question answers itself.

The act of 1879 (Rev. Stat., ch. 159) provides for the restraining of swine. The act provides for the restraining of swine only. In 1883 the legislature adopted an act entitled, “An act to restrain domestic animals from running at large.” This act was approved March 27, 1883. The act provides for the restraining “of any animal or animals, of the species of horse, mule, ass, swine, sheep, or goat.” The act of 1883 was clearly: intended to regulate the whole subject of restraining domestic animals in this state, including swine as well as all other animals mentioned in the act. On the principle, “that a subsequent statuté revising the whole subject-matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must operate to repeal the former” (State v. Roller, 77 Mo. 129, and cases cited), the act of 1883 repealed the act of 1879. The act of 1883 is published in the laws of 1883 with an emergency clause, causing it to take effect from and after its passage, but In a note it is stated that the journals fail to show that the emergency clause passed. However this may be, the act went into force and took effect, without the emergency clause, ninety days after the adjournment of the session at which it was enacted. The legislature adjourned on the second day of April, 1883. The act went into effect, therefore, long before the twelfth day of August, 1883. On the last-named day, then, there was no act of 1879. It had been repealed. It was dead. The laws of 1879 in no way affected the liability of the defendant incurred on August 12, 1883. The act of 1883 was not in force in Cass county unless it had been put in force in the manner provided by the terms of that act, and of this there was no evidence.

The judgment is affirmed.

All concur.