Slinger v. Henneman , 38 Wis. 504 ( 1875 )

Lyon, J.

The controlling question to be determined on the appeal is, Can the defendant be held liable for the consequences of the vicious or mischievous act of his dog, unless he had previous knowledge of the vicious or mischievous propensities of the animal ? At the common law he would not be liable therefor without such knowledge. Hence, if be is so liable, it is because the common law on that subject lias been abrogated, and a new and increased liability established, by some statute. All existing statutory provisions on the subject are contained in ch. 67, Laws of 1871, entitled “ An act to protect and encourage the raising of sheep and discourage the raising of dogs.” (Tay. Stats., 783, §§ 6 to 14, inclusive.) Secs. 1 and 2 of that act provide for listing and assessing the owners or keepers of dogs; secs. 3, 4, 5 and 6 provide for the collection of such assessment, and the disposing of the moneys thus collected; and sec. 7 imposes cei’tain penalties upon officers who fail to perform the duties required of them by the act. Secs. 8 and 9 are as follows:

“SECTION 8. The owner or keeper of any dog or dogs which shall have wounded, maimed or killed any cattle, horses, sheep or lambs, or injured any person, shall be liable to the owner or legal possessor of such cattle, horses, sheep or lambs, or to the person injured, in all damages so done by said dog or dogs, without proving notice to the owner or keeper of such dogs, or knowledge by him that his dog was mischievous, or disposed to kill or worry sheep ; and all laws conflicting with this section are hereby repealed.

“ Section 9. The county board of supervisors of any county, at their first meeting in any year, shall have power and are hereby authorized, by a vote of a majority of all the members elect of said board, to increase or diminish the sum set opposite the names of owners of dogs, as provided for in section two of this act, or at the said meeting by 'the said vote to determine whether or not during the then current year the "said county shall be exempt from or shall be governed by the provisions of this act; and said determination shall be binding on said county until reversed by said county board by a majority of the members elect of said county board.” The remainder of sec. 9 relates solely to the city and county of Milwaukee, and is unimportant in this case.

It was earnestly argued at the bar by the learned counsel for the plaintiff, that sec. 8 is not. within the provision which authorizes the county boards of supervisors to exempt their respective counties from the operation of the act, but that the same is a general provision of law, entirely independent of the remainder of the chapter, and should be treated in all respects as though it were a separate enactment in form as well as in substance. We are unable to concur with counsel in this position. While it may be true that in some respects sec. 8 may be independent of the balance of the chapter, and that the act would be complete without it, still it is within the general purview of the act as indicated by the title. Certainly the provisions of the section directly discourage the raising of dogs by increasing greatly the liability of persons owning or keeping them for any' mischief they may commit; and so far as dogs have a propensity to kill or worry sheep, those provisions have a tendency to protect and encourage the raising of the latter. Indeed sec. 8 contains the most potent provisions to be found in the act for the accomplishment of those objects. Because sec. 8 was inserted in the act in furtherance of its general objects, and is congruous with the other provisions thereof, we think it cannot be successfully maintained that when the legislature attempted to give the county boards of supervisors power to exempt their respective counties from the operation of the act, the intention was to exclude that section from such power of exemption. To give sec. 9 the construction contended for, would, it seems to us, be to interpolate therein an exception not enacted or intended by the legislature.

We are now to determine whether the legislature has power to authorize county boards of supervisors to exempt their respective counties from the provisions of sec. 8. The constitution (art. IV, sec. 1) ordains that “ The legislative power shall be vested in a senate and assembly.” Those bodies constitute the legislature. It is a settled maxim of constitutional-law, that the power thus conferred upon the legislature cannot be delegated by that department to any other body or authority. Cooley on Con. Lim., 116. Tet it is undoubtedly true that in matters purely local and municipal, the legislature may enact conditional laws, and refer it to the people or proper municipal authorities to decide whether such laws shall or shall not have force and effect in their respective municipalities. The cases which sustain this power are numerous. The State v. O'Neill, 24 Wis., 149, is one of these. In principle, the same power is exercised in the numerous laws enacted by the legislature giving to municipalities the power to establish by-laws and ordinances in respect to municipal matters. Sec. 8, however, does not relate to municipal affairs, but it seeks to change a rule of the common law pertaining to a matter of general interest. As well might the legislature authorize the board of supervisors of a county to abolish in such county days of grace on commercial paper, or to suspend the operation of the statute of limitations. Such legislation is clearly within the restriction on the power of the legislature to delegate its authority, and is therefore inoperative and void.

But the question remains, whether sec. 8 may not still be upheld, notwithstanding the provision of sec. 9 which attempts to give the county board power to exempt the county therefrom, is void. It is the settled law in this state, that when a portion of an act is void, other portions, of the same act which if enacted without the void portion would be valid, will not be upheld unless it is apparent that the legislature would have enacted such portions alone had it been foreseen that the courts would declare the remainder of the act void. Slauson v. Racine, 13 Wis., 398; State ex rel. Walsh v. Dousman, 28 id., 541.

There is nothing in the act of 1871 from which it can be presumed that the legislature would have enacted sec. 8 unconditionally, had it been foreseen that the courts would hold that it could not be left to county boards to determine whether the provisions of that section should or should not prevail in' their respective counties. But the history of legislation on this subject proves that, in such a contingency, the section would not have been so enacted. That section was enacted unconditionally in 1866, and will be found as sec. 13 of ch. 110 of the laws of that year, and was repealed by ch. 32, Laws of 1870. Thus the legislature has refused to retain the provisions of the section as an absolute and unconditional law of the state, and only reenacted the section in the conditional form in which we find it in the act of 1871. ‘

Hence it must be held that sec. 8, and the provision in sec. 9 authorizing the board of supervisors óf a county to exempt such county from the provisions thereof, must fall together. It follows that the common law rule of liability must govern the case, and that the court correctly instructed the jury that the defendant was not liable in the action unless he had previous notice of the vicious or mischievous propensity of his dog.

These views dispose of the case; yet it may be observed that were section 8 a valid law, the doubt expressed in Kertschacke v. Ludwig, 28 Wis., 430, as to whether it embraces a ease like this, would still remain.

By the Court. — Judgment affirmed.