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lien is a question of intention on the part of the releasor, and in a doubtful case such intention will not be implied.

5. Animals 6-26(5)—Evidence held to sustain judgment foreclosing lien for pasturing. Record examined in this case, and, there being sufficient competent evidence to sustain the verdict of the jury, the same will not be disturbed on appeal.

(Additional Syllabus by Editorial Staff.)

6. Animals 6-26(4)-Lien for pasturing held not waived.

Where cattle, which plaintiff had been pasturing for defendant, when called for by defendant, were driven through, a gate into the highway and counted, and taken by both parties some distance along the highway to a point where plaintiff had to turn off, when he requested payment, which was refused and defendant then drove the cattle away, and plaintiff brought replewin to recover them, there was no actual or constructive delivery constituting a waiver of the lien.

Commissioners' Opinion, Division No. 3. Appeal from District Court, Ellis County; Frank Matthews, Special Judge.

Action by O. A. Black against EI. E. Hall. From a judgment for plaintiff, defendant appeals. Affirmed.

C. B. Leedy and T. R. Blaine, both of Arnett, for plaintiff in error.

Frank E. Ransdell, of Hominy, for defendant in error.

RUTH, C. This was an action filed in the district court of Ellis county on the 20th day of September, 1918, by O. A. Black, defendant in error, plaintiff below, against H. E. Hall, plaintiff in error, defendant below. For the sake of convenience the parties hereto will be designated as they appeared in the court below.

The petition of the plaintiff sets forth the fact that he was the owner of and the lessee of large acreages of land in Ellis county suitable for grazing purposes, and on the 1st day of May, 1918, that the defendant, H. E. Hall, approached him, and desired to pasture his cattle on the land of the plaintiff, and, after looking over the land, the plaintiff and defendant, on the 1st day of May, 1918, entered into a written agreement, whereby the plaintiff agreed to pasture 253 head of cattle on his land in Ellis county, and the defendant agreed to pay the plaintiff $1,100 for said pasturing, before the removal of the said cattle, and to remove any and all of said cattle on or before November 15, 1918, and the plaintiff agreed to return to the defendant a like number of cattle, and replace or pay the market price for any strayed or stolen cattle. The plaintiff further alleges that he had a special interest and lien upon the

said cattle, and that the same were unlawfully detained from him by the defendant, and brings his action to foreclose his lien thereon. The defendant gave redelivery bond, and retained possession of the cattle, and to the plaintiff's petition he filed answer consisting of a general denial. That on the 13th day of November, 1919, the cause came on for hearing in the district court of Ellis county upon the pleadings and before Hon. Frank Matthews, judge by assignment, upon the issues therein raised. [1] Section 3982, Compiled Oklahoma Statutes 1921, provides that any person employed in the feeding, grazing, or herding of domestic animals, whether in pasture or otherwise, shall have a lien on the said animals for the amount due for such feeding, grazing, or herding, and there was no dispute between the parties hereto as to the written contract, and that the sum agreed to be paid by the defendant for pasturing the cattle from the 1st of May, until the 15th of November, if not sooner removed by the defendant, and that payment was to be made upon their removal. It appears from the evidence that the defendant visited the plaintiff's premises where the cattle were being pastured for various purposes, and in June, 1918, the plaintiff notified defendant that black leg had broken out among his cattle, and four head had died therefrom, and thereupon the plaintiff came to defendant's pasture, and vaccinated the remaining cattle, and plaintiff offered to show defendant the carcasses of the four dead animals, and, after exhibiting one, the defendant stated that he did not care to see the others, but proceeded with the vaccination, that thereafter, on or about September 17, 1918, the defendant again visited plaintiff's home adjacent to his pasture, and announced that he had come for his cattle, and nowhere in the evidence does it appear that defendant made any objection to the number of cattle then in the pasture, and plaintiff counted his cattle out to him, and discovered that they were six head short, including the four dead cattle, showing that two had either strayed or been stolen, and for the value of which the plaintiff was liable to the defendant. It further appears from the evidence that, after the cattle had been counted out of the pasture into the public highway, the cattle and plaintiff and defendant, with others, proceeded slowly down the road toward the home of the plaintiff, and, after proceeding approximately two miles, the plaintiff an nounced that he would have to “turn off here” to go up to his home, and he then and there requested settlement for pasturing under the terms of the contract, and agreed to give to the defendant two extra steers of practically the same kind and weight, but, remembering that his steers had the “association mark,” offered to pay the market price of the two strayed or stolen steers, and upon refusal of payment by the defendant, the defendant took the cattle into his possession, and, with the men who had accompanied him, proceeded to drive off the cattle, whereupon the plaintiff instituted proceedings in replewin, claiming that he had a lien upon the cattle for pasturing, and that there was due him the sum of $1,100, less the market value of the two strayed or stolen steers, which value was placed at approximately $70. Upon trial had, the jury returned a verdict in favor of the plaintiff, to which the defendant excepted, and filed his motion for a new trial, which was in due course overruled, whereupon the defendant gave notice of appeal in open court, and brings this action here for review. The plaintiff in error presents four propositions: First, can an action in replewin establish a lien of any character against personal property; second, does a contractual lien establishing a bailment precede a statutory lien, or can both be concurrent? If both be concurrent, each are waived by a voluntary surrender and delivery of the property, in good faith, without fraud, deceit, and duress; third, the appellee surrendered and delivered voluntarily the property to the appellant, thereby waiving his contractual and statutory lien, if he had any; fourth, the judgment of the court was not supported either by the law or facts, and is contrary to law. [2] With respect to the first proposition of the plaintiff in error, it is sufficient to point out that the action in replevin was instituted for the purpose of enforcing the lien by a recovery of the property, and the sale of so much thereof as would satisfy the amount found to be due to the plaintiff from the defendant. We cannot conceive of two business men engaged in the cattle business entering a pasture and putting cattle into lands for pasture without having some definite understanding as to the price to be charged for such pasturing, and the length of time the cattle should remain in such pasture. True it is that men may enter into contracts relying upon the custom in that particular community for payment of the pasture, but it is undeniably true and is certainly the better procedure to have a definite understanding, and reduce that understanding to writing, to avoid confusion and misunderstanding in the future, and, when such contract is reduced to writing, and provides that payment shall be made immediately upon the removal of the cattle by the defendant, and the defendant proceeds to take the cattle without such payment, replevin is the proper remedy to enforce the lien provided for by our statute. [3,4] In answer to the second query propounded by the plaintiff in error, it is be

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yond question that, by entering into the written contract and providing therein for the amount to be paid by the defendant for pasturing, and that such would be paid upon removal, both parties had in mind the statutory provisions providing a lien upon the cattle so pastured, and there could be no conflict between the written contract and the lien created by statute; and, in answer to the second part of the second query, it is true that the lien may be waived by voluntary surrender and delivery of the property in good faith, without fraud, deceit, or duress, and, in this connection, we discuss the third proposition, wherein the plaintiff contends that the appellee surrendered and delivered voluntarily the property to the appellant, thereby waiving his contractual and statutory lien, if he had any, With respect to what constitutes a waiver of a lien, it is held that the circumstances surrounding the particular transaction of the delivery, and to whom delivery was made, would be the best guide for determining the intention on the part of the releasor. If it was the intention of the plaintiff in this case to deliver possession to the defendant, and if such delivery was actually made, and the defendant was put in possession of the cattle, this, of itself, would not constitute a waiver of the lien of the plaintiff, where the rights of no third party had intervened, for Justice Kane, of this court, in the body of the opinion delivered by him in National Bank of Commerce v. McDaniel, 174 Pac. 288, says:

“The lien provided for by our statute is not designated a possessory lien, " * * nor is it, by the terms of the statute, dependent upon possession. In these circumstances, we have no-doubt that such possession as persons employed in feeding, grazing, or herding domestic animals ordinarily have of the herds intrusted to their care by the owner is sufficient to create a lien in their favor under the statute, which is remedial in its nature, and therefore should be construed in favor of the class for whose protection it was enacted.”

[6] Considering this case in the light of the opinion just quoted, let us examine the facts in this case, and ascertain if the actions of the plaintiff could in any manner be construed as an actual delivery to the defendant. All the transactions with reference to the contract for pasturing were conducted either at the house of the plaintiff on the land, or at the bank in Arnett, and it is not to be presumed that men will go out in a pasturage, probably two miles from human habitation, and there count out the sum of $1,100, and pay it in cash, nor is it to be presumed that the defendant would pay the sum agreed upon until he was satisfied as to the number of cattle in the pasture, and the reasonable manner of ascertaining the number of cattle, and the one that would suggest itself to any reasonable men was to drive the cattle through the gate, counting them as they went through thereby ascertaining the correct number, and that is what appears to have been done in this case, and plaintiff and defendant proceeded down the road approximately two miles to a point where the plaintiff had to turn off to go to his home, and there the plaintiff requested payment, which was then and there refused, and defendant proceeded to drive away the cattle. We cannot hold that the actions on the part of the plaintiff constituted either an actual or a constructive delivery of the animals into the possession of the defendant as would constitute a waiver of the lien, under the decision just quoted, which is supported by decisions of other states having statutes similar to ours. [5] 25 Cyc. 674, lays down the general proposition as follows:

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“A lien may be waived by express agreement, written or parol, based upon a valuable consideration, as by a release to one claiming an interest in, or junior lien on, the property; or it may be lost by operation of law. It may also be waived or lost by implication, the question whether or not there is a waiver in a particular case being one of the intention to be determined from the circumstances. Thus a lien may be impliedly waived by acts or conduct on the part of the lienholder inconsistent with the existence of the lien, as by his entering into a special agreement inconsistent therewith, or by wrongfully converting the property.”

An agister cannot be deprived of his lien except by his voluntary relinquishment of it or by some act or omission upon his part which would estop him from asserting it. He may lose or waive his lien by a disavowal of it, by the institution of proceedings inconsistent therewith, or by an agreement between the parties, based on a legal consideration. Brown v. Holmes, 21 Kan. 687; Danforth v. Pratt, 42 Me. 50; Weber v. Whetstone, 53 Neb. 371, 73 N. W. 695.

Nowhere in the record does it appear that there was any act or omission on the part of the plaintiff which would estop him from asserting his lien in this case, nor did he institute proceedings inconsistent therewith, as the proceeding instituted was one in replewin to repossess himself of the identical property, Or So much thereof as would satisfy his lien, and for the enforcement of his lien, and the plaintiff's actions in counting out the cattle, and remaining in the presence of the defendant and requesting payment of him, and his institution of the replevin proceedings to enforce the lien, are certainly consistent, and at no point did he evince any intention of relinquishing his lien upon the cattle.

In 25 Cyc. 761, the general proposition is laid down that:

“An agister's lien is not, as between the parties or third persons having notice thereof, lost by change of possession not inconsistent with it and not under circumstances indicating an intent to waive, relinquish, or abandon it. * * * Continuous possession of the property is essential only as between the lienor and third parties, as between the immediate parties the lien may continue after change of possession.”

This position assumed by this court and laid down in Cyc. is amply supported in Becker v. Brown, 65 Neb. 264, 91 N. W. 178; Allen v. Spencer, 1 Edm. Sel. Cas. (N. Y.) 117; Scott v. Nesbit, 14 Wes. Jr. 439; 9 Rev. Rep. 318, and cases cited.

“An intention to waive a lien will not be presumed, in the absence of evidence clearly tending to show such an intention.” Muench v. Valley Nat. Bank, 11 Mo. App. 144.

“Whether or not a particular transaction amounts to the release of a lien " " " is a question of intention on the part of the releasor. In a doubtful case such intention will not be implied.” Stribling v. Splint Coal Co., 31 W. Wa. 82, 5 S. E. 321.

A careful examination of the record and of the evidence in this case fails to disclose any action on the part of the plaintiff to release his lien, but, on the contrary, his every act discloses the fact that he intended to rely upon his lien under the statute, and to enforce the same for the price agreed upon, and under the terms of the written contract and as no interest of any third party intervened even if it were said that posSession had been given to the defendant, the lien would still attach and be enforceable, and could be enforced by an appropriate action in replewin before the intervention of any interest of a third party. With reference to the fourth proposition, that the judgment of the court is not supported by either the law or the facts, and is contrary to the law, a careful review of all the evidence discloses that there was sufficient competent evidence introduced by the plaintiff in support of his claim to warrant the same in being submitted to a jury, and, where a jury has found a verdict upon competent evidence, this court will not consider conflicting evidence and disturb such a verdict. We are therefore of the opinion that the judgment of the lower court should be affirmed, and as the plaintiff below, defendant in error in this court, has prayed judgment against the sureties on the supersedeas bond of the plaintiff in error, George W. Leist and F. E. Wan Fleet, it is by the court ordered that judgment be entered against H. E. Hall, as principal, and George W. Leist and F. E. Van Fleet, as sureties on the supersedeas bond, in the sum of $1,015, with interest from the 14th day of November, 1919. Affirmed.

OKLAHOMA LIGHT & POWER CO. v. CORPORATION COMMISSION OF OKLAHOMA et al. (No. 12763.)

Oct. 30, 1923.)

(Syllabus by the Court.)

I. Statutes & 107 (1)–Provision that every act of Legislature shall embrace but one subject clearly expressed in title satisfied if act has but one general subject fairly indicated; act of Legislature may contain many details, but if all relate to same general subject they are properly included. Section 57, art. 5, of the Constitution of Oklahoma, providing every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, is satisfied if the act has but one general subject and that is fairly indicated by the title. It may have many details, but if they all relate to the same general subject or object they are properly included therein. The purpose of this provision of the Constitution was to forbid the Legislature from embracing in any one act two or more unconnected subjects.

(Supreme Court of Oklahoma.

2. Combinations in restraint of trade. Section 1 of the act of June 10, 1908 (article 1, c. S3, Sess. Laws 1907 and 1908, p. 750; section 11017, Comp. St. 1921), provides: “Every act, agreement, contract, or combination in the form of trust, or otherwise, or conspiracy in restraint of trade or commerce within this state, which is against public policy, is hereby declared to be illegal.” Held, said section defines agreements and combinations in restraint of trade and makes the same illegal.

3. Statutory provisions.

Sections 11018 to 11031, inclusive, Comp. St. 1921, provide the remedies for the dissolution, prosecution, and punishment for the violation of any of the provisions of section 11017.

4. Public service commissions 3-6–Corporation commission has jurisdiction to regulate monopolies in restraint of trade; whether plaintiff's monopoly in restraint of trade question of fact to be determined on application to regulate business house; “or”; “and.” Section 13 of said act (section 11032, Comp. Stat. 1921), provides: “Whenever any business, by reason of its nature, extent, or the existence of a virtual monopoly therein, is such that the public must use the same, or its services, or the consideration by it given or taken or offered, or the commodities bought or sold therein are offered or taken by purchase or sale in such a manner as to make it of public consequence or to affect the community at large as to supply, demand or price or rate thereof, or said business is conducted in violation of the first section of this article, said business is a public business, and subject to be controlled by the state, by the corporation commission or by an action in any district court of the state, as to all of its practices, prices, rates and charges, And it is hereby declared to be the duty of any person, firm or corporation engaged in any public business to render its services and offer its commodities, or either, upon reasonable

terms without discrimination and adequately to the needs of the public, considering the facilities of said business.” Held, said section vests the corporation commission with jurisdiction to regulate any public business which possesses the statutory characteristics, such as whenever any business, by reason of its nature, extent or the existence of a virtual monopoly therein, is such that the public must use the same, etc., “or said business is conducted in violation of the first section of this article,” and that the word “or,” as herein last referred to, is used as a disjunctive and that the word “and” should not be substituted therefor. Held, further, that the question as to whether a business possessing the characteristics mentioned is subject to regulation by the corporation commission is a question of fact that must be determined from competent testimony on a proper application to regulate such business at a hearing on such application. [Ed. Note.—For other definitions, see Words

and Phrases, First and Second Series, And; Or.]

5. Public service commissions 3-6–Corporation commission had jurisdiction to regulate manufacture, sale and distribution of ice if facts show unlawful monopoly. Whether or not the manufacture, sale, and distribution of ice within any city or community is conducted in such a way and to such an extent as to bring it within the statutory characteristics and subject it to regulation by the corporation commission is dependent upon the established facts in a proper hearing before the commission for the regulation of such business, and if upon such hearing the evidence shall disclose such a state of facts as would bring such business within the statute, the commission would have jurisdiction to regulate the rates in the distribution of ice.

Original action by the Oklahoma Light & Power Company for a writ of prohibition directed to the Corporation Commission and others as members thereof, prohibiting the Commission from exercising or assuming jurisdiction upon the application of George C. Crump to regulate the price of ice sold by petitioner. Writ denied.

Lydick & Hood and Irvin L. Wilson, both of Oklahoma City, for plaintiff in error.

E. S. Ratliff, of Oklahoma City, for Corporation Commission.

KENNAMER, J. The Oklahoma Light & Power Company, a corporation, instituted this action in this court against the Corporation commission for a writ of prohibition directed to said commission prohibiting it from exercising or assuming jurisdiction upon the application of George C. Crump, a citizen of Holdenville, to regulate the price of ice sold by said plaintiff in the city of Holdenville.

The petition filed by Crump before the commission in substance alleged that the city of Holdenville has a population of approximately 5,000 people. The Oklahoma Light & Power Company operates in said city a plant for the generation of electric current, which it sells, transmits and distributes to the people generally throughout said city, and that in addition to the manufacturing and distributing electric current said company manufactures artificial ice, sells and distributes the same to the people generally throughout said city. That said company is the only one manufacturing, selling and distributing ice in the city of Holdenville and that the rates and charges for said ice so sold and distributed are higher rates and charges than are necessary in order to give said company a reasonable rate of return on the value of its property used and useful in the operation of said ice business within said city.

& For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(220 P.)

The complainant prayed for a hearing upon his petition and that upon said hearing the commission, by proper order, fix the rates and charges to be charged by the Oklahoma Light & Power Company for ice sold and distributed in the city of Holdenville. The commission made an order setting said application for hearing on the 7th day of November, 1921. The plaintiff in its application for a writ of prohibition alleges that the commission is without jurisdiction under the act approved June 10, 1908, art. 1, c. 83, Sess. Laws 1907 and 1908, p. 750 (sections 11017 and 11032, Comp. St. 1921), to regulate the price of ice in the city of Holdenville.

Counsel, in support of the application for the writ, contend that the act of the Legislature, supra, was intended only to regulate unlawful combinations in restraint of trade and it was not intended to authorize the regulation of a business which happens to be without local competition, and that the title of the act is not broad enough to include a business not amounting to a voluntary and unlawful combination in restraint of trade, and that any provision in the act attempting to regulate a business not amounting to an illegal combination in restraint of trade is void.

[1-3] The title to the act in question is as follows:

"To define a trust, monopoly, unlawful com: bination in restraint of trade; to provide civil and criminal penalties and punishment for violation thereof and damages thereby caused; to regulate such trusts and monopolies; to promote free competition for all classes of business in the state; and declaring an emergency.”

Sections 1 and 13 of the act provide:

1. "That every act, agreement, contract, or combination in the form of trust, or otherwise, or conspiracy in restraint of trade or commerce within this state, which is against pub* policy, is hereby declared to be illegal.” 13. “Whenever any business, by reason of * nature, extent, or the existence of a virtual monopoly therein, is such that the public must use the same, or its services, or the cono by, it given or taken or offered, or

* “ommodities bought or sold therein are of

fered or taken by purchase or sale in such a manner as to make it of public consequence, or to affect the community at large as to supply, demand or price or rate thereof, or said business is conducted in violation of the first section of this act, said business is a public business, and subject to be controlled by the state, by the corporation commission or by an action in any district court of the state, as to all of its practices, prices, rates and charges. And it is hereby declared to be the duty of any person, firm or corporation engaged in any public business to render its services and offer its commodities, or either, upon reasonable terms without discrimination and adequately to the needs of the public, considering the facilities of said business.”

Upon an examination of the title to this act and the provisions of section 13, we are unable to agree with the contention made by counsel for the plaintiff.

Section 57, art. 5, of the Constitution, prowides:

“Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, * * *"

This section of the Constitution is almost verbatim with section 45, art. 4, of the Alabama Constitution, and the manifest intention of this mandatory provision is that the title of an act must be such as to fairly Stiggest and advise as to the subject intended to be covered by the act. All matters fairly and reasonably connected with the act must be indicated by the title. It was intended by this constitutional provision to forbid the Legislature from embracing in any one act two or more unconnected subjects. Anything in an act not germane to the general purpose expressed in the title brings such a statute within this constitutional prohibition. But it must be borne in mind that this provision of the Constitution only requires that the title of an act should express the subject, not the object, of the act, and it is no valid objection to a statute that the title fails to plainly indicate the purpose to be accomplished by the act, but the subject must be clearly stated. 25 R. C. L. § 94, p. 848; City of Pond Creek et al. v. Haskell, Governor, et al., 21 Okl. 711, 769, 97 Pac. 338; Falconer v. Robinson, 46 Ala. 340; State ex rel. v. Rogers et al., 107 Ala. 444, 19 South. 909, 32 L. R. A. 520.

The true rule appears to be that—

“It is a sufficient compliance with these provisions that a law has but one general subject or object, which is fairly expressed in its title.” 25 R. C. L. p. 848.

[4] Upon a careful consideration of the act in question we have no difficulty in concluding that the purpose of the act is twofold: First, to define a trust or monopoly and provide for prosecution; second, the regulation of any business when conducted under any of the following circumstances:

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