I dissent. The statute providing that a fence law may be adopted by a county, or by a precinct requires not only that an election be held, but that the proposition to require a land owner to fence his lands with a fence of a particular type, defined by the county commissioners or to be prohibited from obtaining damages for injuries done by trespassing *Page 44 animals running at large, must carry at such election "by a vote of a majority of all the legal voters of such county or precinct."
I do not think it was the intention of the legislature that a mere majority of persons voting could deprive a person of a common law, and a statutory right to sue for damages, and to allow one person to trespass at will on the property of another without liability. The provision that it must carry by "a majority of all legal voters of such county" cannot well be construed to mean "of all those voting" because in other provisions of the statute the legislature was careful to use language different from this. Thus in Section 25-7-6 it says "the persons having the highest number of votes" shall be declared elected; and in Section 25-10-20, in the initiative and referendum provisions it declares that such measures carry as has "the greatest number of affirmative votes [if that] is a majority of those voting"; and Section 25-11-4 uses the language "elected by a plurality of votes." Section 15-7-7, providing for issuance of city bonds, reads "a majority of those voting thereon." We shall not prolong this opinion by quoting all the statutory provisions showing the legislature has always been careful in its choice of language in defining what constitutes winning an election. In the fence law act they said "the majority of allthe legal voters of such county." I think they meant just that.
Another interesting thing is the fact that the county ordinance calling the election states that the election
"is to determine whether the citizens of the county shall fence their farms and premises, and allow domestic animals to run at large, and thereby render inoperative the provisions of thestatutes authorizing detention and sale of animals, as providedby Section 8 [18] of Chapter 1, pg. 136, Compiled Laws of Utah for the year 1907."
It is elemental that the effect of an election cannot be extended beyond the scope and purpose stated in the ordinance calling the election.
I also dissent from the holding that the fence law could go into effect and become operative merely by a date fixed *Page 45 in the minutes of the County Commissioners, without having designated the effective date in the election ordinance or by a published proclamation.
PRATT, J., not participating.