(220 P.)

5. Animals 26(5)—Evidence held to sustain judgment foreclosing lien for pasturing.

lien is a question of intention on the part of said cattle, and that the same were unlaw-
the releasor, and in a doubtful case such inten- fully detained from him by the defendant,
tion will not be implied.
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.

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 26(4)—Lien for pasturing held

not waived.

[1] Section 3982, Compiled Oklahoma StatWhere cattle, which plaintiff had been pas-utes 1921, provides that any person employed turing for defendant, when called for by de- in the feeding, grazing, or herding of dofendant, were driven through. a gate into the

highway and counted, and taken by both par-mestic animals, whether in pasture or other-
ties some distance along the highway to a point wise, shall have a lien on the said animals
where plaintiff had to turn off, when he re- for the amount due for such feeding, graz-
quested payment, which was refused and de- ing, or herding, and there was no dispute
fendant then drove the cattle away, and plain-between the parties hereto as to the written
tiff brought replevin 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 H. E. Hall. From a judgment for plaintiff, defendant appeals. Affirmed.

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 No-
vember, if not sooner removed by the defend-
ant, 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

C. B. Leedy and T. R. Blaine, both of head had died therefrom, and thereupon the Arnett, for plaintiff in error.

Frank E. Ransdell, of Hominy, for defend-vaccinated the remaining cattle, and plainplaintiff came to defendant's pasture, and ant 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.

tiff offered to show defendant the carcasses
of the four dead animals, and, after exhibit-
ing 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 pas-
ture, 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 lia-
ble to the defendant.

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 order the terms of the contract, and agreed to pay the market price for any strayed or stolen cattle. The plaintiff further alleges that he had a special interest and lien upon the

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 un

give to the defendant two extra steers of
practically the same kind and weight, but, re-
membering that his steers had the "associa-

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

tion mark," offered to pay the market price | yond question that, by entering into the writof the two strayed or stolen steers, and upon ten contract and providing therein for the refusal of payment by the defendant, the amount to be paid by the defendant for pasdefendant took the cattle into his possession, turing, and that such would be paid upon and, with the men who had accompanied him, removal, both parties had in mind the statproceeded to drive off the cattle, whereupon utory provisions providing a lien upon the the plaintiff instituted proceedings in re- cattle so pastured, and there could be no conplevin, claiming that he had a lien upon the flict between the written contract and the cattle for pasturing, and that there was due lien created by statute; and, in answer to him the sum of $1,100, less the market val- the second part of the second query, it is ue of the two strayed or stolen steers, true that the lien may be waived by volwhich value was placed at approximately untary surrender and delivery of the prop$70. erty 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 surround

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 replevin establish a lien of any charactering the particular transaction of the delivagainst 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.

ery, and to whom delivery was made, would
be the best guide for determining the in-
tention 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,
it, by the terms of the statute, dependent upon
possession. In these circumstances, we have
no doubt that such possession as persons em-
ployed in feeding, grazing, or herding domestic
animals ordinarily have of the herds intrusted
to their care by the owner is sufficient to cre-
ate 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."

nor is

[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 [6] Considering this case in the light of of time the cattle should remain in such pas- the opinion just quoted, let us examine the ture. True it is that men may enter into facts in this case, and ascertain if the accontracts relying upon the custom in that tions of the plaintiff could in any manner particular community for payment of the pas-be construed as an actual delivery to the deture, but it is undeniably true and is cer- fendant. All the transactions with refertainly the better procedure to have a definite ence to the contract for pasturing were conunderstanding, and reduce that understand-ducted either at the house of the plaintiff ing to writing, to avoid confusion and mis- on the land, or at the bank in Arnett, and understanding 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

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

(220 P.)

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:

"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 replevin 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.

*

"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 Ves. 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. Va. 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 replevin 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. Van 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

In 25 Cyc. 761, the general proposition is from the 14th day of November, 1919. laid down that:

Affirmed.

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

(Supreme Court of Oklahoma. Oct. 30, 1923.) possesses the statutory characteristics, such as

1. 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 indi-and that the word "or," as herein last refercated; act of Legislature may contain many details, but if all relate to same general subject they are properly included.

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 &

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

(220 P.)

Power Company operates in said city a plant fered or taken by purchase or sale in such a for the generation of electric current, which manner as to make it of public consequence, it sells, transmits and distributes to the or to affect the community at large as to suppeople generally throughout said city, and ply, demand or price or rate thereof, or said that in addition to the manufacturing and business is conducted in violation of the first section of this act, said business is a public distributing electric current said company manufactures artificial ice, sells and distrib- business, and subject to be controlled by the utes the same to the people generally through-action in any district court of the state, as state, by the corporation commission or by an out said city. That said company is the only to all of its practices, prices, rates and chargone manufacturing, selling and distributing es. And it is hereby declared to be the duty ice in the city of Holdenville and that the of any person, firm or corporation engaged in rates and charges for said ice so sold and any public business to render its services and distributed are higher rates and charges than offer its commodities, or either, upon reasonare necessary in order to give said company able terms without discrimination and adea reasonable rate of return on the value of quately to the needs of the public, considering its property used and useful in the operation the facilities of said business." of said ice business within said city.

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, provides:

but one subject, which shall be clearly express"Every act of the Legislature shall embrace

The complainant prayed for a hearing up on 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 commis- This section of the Constitution is almost sion is without jurisdiction under the act ap-verbatim with section 45, art. 4, of the Alaproved 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.

ed in its title,

bama Constitution, and the manifest intention of this mandatory provision is that the title of an act must be such as to fairly suggest 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 Leg

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 reg-islature from embracing in any one act two ulation 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 combination 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 public policy, is hereby declared to be illegal."

13. "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 of

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: