Wilson v. Western Surety Co.

McCOY, J.

There was a verdict and judgment for plaintiff in- the circuit court from which defendant Western Surety Co-m *178 pany appeals. Plaintiff complained that defendant Hanson, in the fall oí 1907; was the owner of a steam 'threshing machine, and that, while moving said threshing machnery over the prairie in the vicinity of plaintiff’s property, negligently permitted the fire to escape from the engine and -set fire to the surrounding grass, and that a high wind drove and communicated said fire to plaintiff’s property, consisting of about, 40 tons'of hay,'of the value of $120, and wholly consumed and destroyed the same; that the said Hanson had entered into a bond, with the defendant Western Surety 'Company, surety, under the provisions of article 29, c. 27, Revised Political Code, and this action was instituted- to recover the value of said hay as damages under the provisions of said bond.

[1] The first contention of appellant is that the said statute (article 29, c. 27, Revised Political Code), under and by virtue of which said bond was given, is unconstitutional and void, -in that the title to the act attempting to pass.the same did not refer thereto, the specific contention being that said article 29, and the matters and provisions therein contained, were originally contained in chapter 145, Laws of 1890, and that said chapter 145, Laws of 1890 was expressly repealed by chapter 199, Laws of 1903, and that -the title to the act passing and enacting the Revised'Political Code of 1903 was not sufficient, under section 21, art. 3, Const.; providing that “no law shall embrace more than one subject which shall be expressed in its title.” It is the contention that the whole Revised Political 'Code is repugnant to this constitutional provision in that it contains more than one subject; and that said article 29 is also in-conflict with the Constitution in that the same is not embraced within the title to 'the act enacting the Revised Political Code. In this contention we are of the opinion that appellant is in error. Johnson v. Harrison, 47 Minn. 575 , 50 N. W. 923 , 28 Am. St. Rep. 382 ; Tribune Printing & Binding Co. v. Barnes, 7 N. D. 591 ; 75 N. W. 904 . In the Minnesota case it was held that a title, “An act to establish a Probate Code,” was not repugnant to a like constitutional provision as embracing more than one subject. In the North Dakota case it was held that a title, “An act to be known as the political Code of the state of North Dakota,” was not repugnant to 'a like constitutional provision as to an act not embracing more than one subject. Under these decisions the title of the act enacting the Revised Political Code would have been sufficient had it stopped *179 when it said “An. act entitled an act to- provide a Revised Political Code for the state of South Dakota,” and then had not gone on with two long, large pages of specific restrictive matter which might defeat some of the most useful and beneficial parts of the act, thus demonstrating the ill-advised and injudicious method of w-oncing into the title of an act restrictive words, which will destroy and defeat, oftentimes, the real utility- and purpose of the act, when a general title would have been sufficient. ■ •

[2] In this particular case we are of the opinion that there is in the specific portions of the title sufficient to support and bring the same within the purview of the constitutional requirement. In the specific wording of the title in question is found the words “fixing and defining the police power of the state and matters incident thereto.” With reference to the question at issue -the title would read “An act entitled an act to provide a Revised Political Code for the -state of South Dakota * * * fixing and defining the police power of the state and matters incident thereto. * * * ” Chapter 27, of which article 29 is a part, relates to- and defines the police power and matters pertaining thereto, and said article 29 and the matters embraced therein are clearly within and are matters pertaining and incident to the police power of the state and clearly within the wording of the title -of the act.

[3] It is.further contended 'by appellant that the evidence is insufficient to justify the verdict in that there is no evidence 'tending to show that -said threshing machinery- was the cause or means of setting said' fire, or that said fire was through the carelessness or negligence of the persons operating said machine. The existence of negligence, under the circumstances of this case, was 'a question of fact purely for the jury. We have carefully examined all the evidence preserved by the record and are of the opinion that the same was sufficient to justify the verdict. It will serve no useful purpose to incorporate the same herein.

[4] Appellant also contends that the judgment is improper in form, being rendered against the surety and not against the principal, and also that plaintiff cannot -maintain this action in his. own name for the reason that said bond sued upon runs in favor of the state of South Dakota. Neither of these questions, if there is anyr' *180 thing in them, were raised in the court below and cannot for the first time be raised in -this court.

Finding no error in the record, the judgment of the circuit court is affirmed.