Lindsey v. Drane

285 S.W. 705, 154 Tenn. 458, 1 Smith & H. 458, 1926 Tenn. LEXIS 143

• Court: Tennessee Supreme Court
• Decided: July 13, 1926
• Status: Published

Opinion

Me.. Justice Cook

delivered the opinion of the Court.

The bill was filed under the Declaratory Judgments Law (chapter 29, Acts of 1923) by citizens of Benton county against the district attorney, J. M. Drane, the election commissioners of Benton county, and Benton county. The bill attacks the stock law (chapter 496, Priv. Acts of 1925') applicable to Benton county, alleging that the act is invalid, .but, if valid, the complainants seek a construction of section 2 of the act. The chancellor dismissed the bill on motion of the defendants, and through assignments of error the complainants seek a review of his decision.

A ground of attack is the invalidity of an election held in Benton county before the act was introduced, to deter mine the will of tlie people touching a stock law for the connty. The bill was introduced and the act passed after a favorable vote in an election called by the election commissioners. By what authority the commissioners called the election does not clearly appear. Irregularity in such election could not affect the validity of the act in question. The legislature could have passed it without approval of the voters, or could have passed it even after a, vote of the people disapproving such law.

The State government is representative, and the public will is expressed through representatives in the General Assembly.

Another ground of attack is the unconstitutionality of the act. The act does not violate article 1, section 8, nor article 11, section 8, of the State constitution, nor the Fourteenth Amendment to the federal constitution. The precise questions presented by complainants are determined adversely to their contention'in Sullivan v. State, 136 Tenn., 194, 188 S. W., 1153, sustaining chapter 177, Acts of 1903, Thomas v. State, 136 Tenn., 47, 188 S. W., 617, sustaining chapter 49, Private Acts of 1911, and also by the case of Wright v. Cunningham, 115 Tenn., 445, 91 S. W., 293. Peterson v. State, 104 Tenn., 127, 56 S. W., 834; Hall v. State, 124 Tenn., 237, 137 S. W., 500.

The effort to enjoin the district attorney from drawing presentments and indictments for a violation of the act must fail, because the chancery court has no power to enjoin prosecutions for the violation of penal statutes. Kelly & Co. v. Conner, 122 Tenn., 339, 122 S. W., 622, 25 L. R. A. (N. S.), 201.

Referring- to a declaratory construction of section 2 of the act, the language of section 2 is that of sections 2 and. 3, chapter 122 of the Private Acts of 1911, and chapter 177, Acts of 1903, and of sections 2, 3, and 4, of chapter 49 of the Private Acts of 1911. Under such provisions the landowner is authorized to impound trespassing animals, as is permissible at common law, and, if damages for their trespass was not otherwise adjusted, the act authorizes the injured landowner to recover for the injury and enforce a lien upon the animals. To enforce the lien it would he necessary to do it through a judicial proceeding, and these acts provide that it may he through judgment and execution or through attachment, judgment, and sale as provided by law.

The decree of the chancellor is affirmed.