Crumley v. Kansas City, Clinton & Springfield Railway Co.

Ellison, P. J.

— This action was instituted January 25, 1887, to recover double damages from defendant for killing plaintiff’s hog in Cass county in the month of June, 1886. Plaintiff recovered below and defendant appeals.

It was admitted at the trial: “That by an election of 1880 in Cass county, Missouri, the law of 1879 restraining swine from running at large was adopted by the voters of that county and that such election has never been rescinded.”

When plaintiff’s hog was was killed the act of 1885 (Sess. Acts 1885, p. 166) was in force, materially changing the character of a lawful fence in certain counties from that required by section 5652, Revised Statutes. That act provides as follows: “In counties in this state in which swine are restrained from running at large * * * all fences built of post and boards, with posts set firmly in the ground, not more than eight feet apart, and boards substantially one inch thick and six inches wide securely fastened thereto and the upper board being at least four and one-half feet high and the two remaining boards placed at proper distances below to resist horses, cattle, and like stock, shall be deemed and held to be a good and lawful fence.” Defendant contends that it had such a fence as required by this act and that the court erred in giving an instruction requiring the fence to be sufficient to resist hogs as well as “horses, cattle and like stock.” Defendant’s contention is based on the assumption that the “hog law” of 1879 was in force in Cass county when this animal was killed, and that consequently the act of 1885 governs as to the character of fence. But such law was not in force in Cass county at that time, notwithstanding it had been adopted in 1880 under the general statutes of 1879. In the case of Berkshire v. Railroad, 28 Mo. App. 225, we held that the law of 1879 was repealed by the act of 1883, p. 26, that act being “clearly intended to regulate the whole subject of restraining- domestic animals in this state, including swine as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.” The law being repealed, its adoption by the voters of Cass county fell with it and left that county as it was before the adoption of the law.

But it may be said that one of the admitted facts in the case is that the law of 1879 was in force at the time the animal was killed. This admission, however, is, in effect, an admission of law rather than of fact and as such we are not bound by it. In the Berkshire case, supra, Hall, J., said: “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.” So in this case we will accept as conclusive upon us that the law was adopted at an election in Cass county in 1880, but we will leave ourselves free to say what effect the la v since enacted has wrought upon that election. The defendant should have had the fence ordinarily required by the statute and . the court therefore, did not err as to the instruction complained of.

We have examined and investigated the other points made by defendant, but find nothing to justify us in disturbing the judgment and it is therefore affirmed.

All concur.