Leflore County v. State
Leflore County v. State, ex rel., etc.
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Opinion of the Court
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Campbell, C. J.,
delivered the opinion of the court.
The petition sufficiently shows that an election was ordered and held in Carroll county to determine whether the “ stock law” should be declared in force in that county, and that the result was in favor of it, and that the board of supervisors, in pursuance of the result of the election, declared that the stock law should be in force in said county from the fifteenth of February, 1893. Leflore is an adjoining county, and, while it is not distinctly and positively averred, as good pleading requires, that Leflore county has not adopted the stock law, it sufficiently appears, in view of the fact that the law is not in force in any county until it has been adopted, and the language of the petition is strongly suggestive of the fact that Leflore has not adopted the law, since the averment is that a fence between the two counties is necessary to prevent stock from Leflore county straying therefrom and trespassing in Carroll county.
. Mandamus is an appropriate remedy to compel the performance by a board of supervisors of the duty imposed by § 2061 of the code of 1892, as to jointly building and keeping in repair a fence on, or near, the county line to prevent stock straying from one county, in which the stock law is not in force, into the other, in which it is in force.
The object of that section is to make the county which adopts the stock law, and the county which does not, each chargeable with the burden of erecting and maintaining the *777 fence necessary to meet the conditions. By adopting the law, the people of the county in which the law is put in force are entitled to cultivate their lands without the protection of fences. Their farms are to be “ turned out,” and their stock fenced in, so as to keep them off’ the land of others. ■ Their lands are to be protected from stock, not by fences, but by law. "Without a fence to prevent stock from straying from a county not having the stock daw into one that has, the owners of stock thus straying would be the sufferers from seizure of their stock by persons depredated on by them. Hence the provision for a fence about the county line, and, as it is rendered necessary for the protection of owners of stock in a county not having the stock law, and they will be benefited, part of the expense is chargeable on that county, and since this necessity has arisen from the determination of the other county to adopt the stock law, part of the expense is chargeable to it. The law is intended to effect justice in this matter. Instead of declaring that one county may put the stock law in force and enjoy its full benefits, without further charge than the necessity of making needed provision for confining stock in that county, whereby the stock in contiguous counties would, from their instinct to wander, be continually exposed to seizure, and to be dealt with under the law as trespassing animals, entailing loss upon their owners, and producing endless vexation and disturbance; in order to avoid these evils, the provision was made for a fence, at or near the county line, to be built and repaired at the joint expense of the adjoining counties. Instead of being a burden unwarrantably imposed on the county not adopting the stock law, it is conferring a benefit on i<t, in requiring the other county to bear half of the expense of the fence so necessary to keep stock from straying into danger, and loss to their owners. True, but for the action of one county adopting the stock law, a necessity for the fence between the counties would not exist, but, in our arrangement of counties, the right of each to act independently of others in such *778 matters- as authorized by law, must be recognized and submitted. to, and the inconvenience, if any, resulting from contiguity of territory is an unavoidable incident not affording cause for legal complaint. The matter is within the control of the legislature, and the scheme provided is as above set forth, and whether the wisest or not is not for the courts to say.
It is suggested that practical difficulties exist in reference to the location of the fence between the two counties, and procuring the site for it. If this be true, it will be time enough to deal with the difficulties when encountered. They should not be anticipated. It is probable that a hearty acceptance of the law, and the result of the action of Carroll county, by Leflore, and a determination by all concerned to discharge duty, as imposed by the law, will remove all obstacles, and lead to the building of the needed fence. Certainly it appears to us to be a matter of far more concern to Leflore to have that fence erected than to Carroll, as a consideration of the practical consequences to owners of stock in Leflore, if the fence shall not be built, must suggest.
The provisions of the constitution as to qualified electors* and registering electors, and the election ordinance adopted by the constitutional convention, have been appealed to as rendering unconstitutional the provisions of the code as to a stock law. We reject this view. There is nothing in the constitution or ordinances at war with the stock law. The legislature might pass a stock law for one or all the counties without a vote of the people on the subject. It might empower each board of supervisors to declare such law in force, without vote or petition of the people, and, having plenary power over the subject, was authorized to prescribe the conditions on which the boards might act.
A consideration of § 2062 of the code, as to the manner of raising money to defray the expenses of building and repairing fences, is not called for now. That will arise hereafter. The question now is, whether Leflore must join Carroll in *779 building a fence, not how it is to be paid for. That it is a county burden, and to be borne as other county expenses, is clear, unless a levy may be made only on specific lands, as provided by § 2062. The proposition that the boards of supervisors may not raise money for fences in any other way than as provided by that section is not maintainable. The charge is upon the county, with power in the board to designate certain lands to bear the expense instead of the county. Preceding sections impose the burden. Section 2062 confers power to limit it as prescribed.
The objection that Carroll has gone on and made provision for part of the fence is not a reason for refusal by Leflore to do its part. The counties should confer and co-operate in the work, but if one will not, when applied to, the other may proceed alone, and call on the other for half the reasonable cost. The law charges each county with half the expense, and there is no way to escape it.
Affirmed.
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