Dillard v. Webb

55 Ala. 468

• Court: Supreme Court of Alabama
• Decided: December 15, 1876
• Status: Published

Opinion

STONE, J. —

“ Municipal corporations,” says Mr. Dillon, “ are bodies politic and corporate, * * established by law, to share in tbe civil government of tbe country, but chiefly to regulate and administer tbe local, or internal affairs of tbe city, town, or district, which is incorporated.” — 1 Dill. Mun. Corp. §9 b.

“ § 10. Corporations intended to assist in tbe conduct of local civil government, are sometimes styled political, sometimes public, sometimes civil, and sometimes municipal; and certain kinds of them, with very restricted powers, quasi corporations ; all these by way of distinction from private corporations. All corporations, intended as agencies in the administration of civil government, are public, as distinguished from private corporations. Thus, an incorporated school district, or county, as well as a city, is a public corporation ; but the school district, or county, properly speaking, is not, while the city is, a municipal corporation.

“ § 10 a. Civil corporations are of different grades, or classes, but in essence, or nature, they must all be regarded as public. The school district, or the road district, is invested with a certain corporate character, the better to perform, within and for the locality its special function, which is indicated by its name.”

In Dartmouth College v. Woodward, 4 Wheat. 636, Ch. J. Maeshall said : “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of the law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed to be best calculated to effect the object for which it is created.”

In addition to powers expressly granted to corporations, they can exercise “such implied powers as are necessary and proper to carry into effect the powers expressly granted, and such incidental powers as pertain to the purposes for which the corporation was created. These implied and incidental powers are unwritten, and vary with the varying objects of the corporation.” — Intendant & Council v. Pippin, 31 Ala. 550.

The act “ To establish the Canebrake Agricultural District, to provide for the securing of the same, and the management of its affairs,” approved February 20th, 1866, creates a public corporation, under the rules above declared. Though not technically a municipal corporation, it has much of the character and attributes of such corporation. Its name declares its purpose — namely, an association of persons, for the encouragement and promotion of agricultural pursuits, in what was and is known as the “ Canebrake” region. It was intended to operate over a section of not inconsiderable dimensions, and hence it is called a “ District.” The term “ agriculture ” is defined to be “ the art or science of cultivating the ground, especially in fields or large quantities, including the preparation of the soil, the planting of seeds, the raising and harvesting of crops, and the rearing, feeding, and management of live stock ; tillage, husbandry, and farming.” The variety of products of the earth, of agricultural implements,"and of domestic animals, invited and put oar exhibition at agricultural fairs, attests the comprehensiveness of tbe term, “ agriculture.” It refers to tbe field, or farm, with all its wants, appointments, and products, as horticulture refers to tbe garden, with its less important, though varied products.

We think the title of this act sufficiently discloses the subject — the growth, cultivation, and preservation of field crops; and that all the powers granted are cognate and incidental to the one controlling subject. — See Adler v. The State, and authorities cited, at the present term. Whether lands should be fenced; whether stock should be permitted to run at large, or should be kept in inclosures; and a speedy method of preventing the destruction of crops, if animals trespass upon them, are among the obvious inquiries and economics of successful agriculture.

2. It is further contended, that the provisions of this statute, which authorize the distress and impounding of cattle taken damage-feasant, are violative of the 7th section of the “declaration of rights,” which declares that no person shall “be deprived of his life, liberty, or 'property, but by due course of law.” This clause, with some modifications, has come down to us from Magna Chabta, a period of over six hundred years. — See Magna, Olxarta, .chap. 29. It was made a part of the constitution of the United States by Article Y of the amendments, ratified December 15th, 1791. This clause is common to the State constitutions. It has always been held, that this constitutional guaranty does not prevent or impair the right of all sovereignties, or other inferior governmental organizations, having authority therefor, to establish sanitary and police regulations. — See Bacon’s Abr. title Distress (F.); 3 Black Com. 12, et seq.; Rust v. Low, 6 Mass. 90; Melody v. Reab, 4 Mass. 471; Mills v. Stark, 4 N. H. 512.

Speaking of this right, Mr. Dillon, in his work on Corporations, § 93, says: “ The citizen owns his property absolutely, it is true ; it cannot be taken from him for any private use whatever, without his consent, nor for any public use without compensation ; still, he owns it subject to this restriction, namely : that it must be so used as not to injure others, and that the sovereign authority may, by police regulations, so direct the use of it, that it shall not prove pernicious to hisineighbors or the citizens generally. * * It is not a taking of private property for public use, but a salutary restraint on a noxious use by the owner, contrary to the maxim, Sic utere tuo ut alienum non Icedas. — Cooley’s Const. Lim. 572, et seq.

It is clearly competent for the legislature to enact, or, by express authority, to delegate to a municipal, or other public corporation municipal in character, the right to enact, that fences shall be dispensed with; that cattle shall be kept within inclosures ; that they may be distrained, if found at large damage-feasant; that they may be impounded, and if, after reasonable notice, they be not redeemed, and the reasonable damages and expenses paid, that they be sold therefor. — Dill. Corp. §§ 101, 270, 282; Mills v. Stark, 4 N. H. 612; Rust v. Low, 6 Mass. 90. The question of requiring or dispensing with fences, requiring cattle to be confined, or permitting them to run at large, is one of unquestioned police regulation, and clearly within the power of the sovereignty. Almost all cities and large towns have ordinances forbidding cattle to run at large, providing pounds, and authorizing sales to meet expenses; and they are necessary to the comfort and well-being of the municipality. It is only when such ordinances fail to protect the rights of the owners of the cattle, or fail to furnish them the means of relieving them by paying the proper charges, or when the regulations are not complied with, that the law withholds its sanction. All such proceedings are sto'icti juris ; and both the by-law or ordinance, in its terms, and the officer in its execution, must accord to the property-owner all his substantial rights.

Under the. present charter, there is no want of power. The 12th section of the act declares : “ That, within said district, no person shall permit his or her stock, of any kind or description, to go at large ; and any domestic animal, of any kind or description, found at large, or trespassing, may be taken up, and carried to a common pound; and the owner may reclaim the same, by the payment of such fees and compensation as the said commissioners may in their rules and regulations establish, which they are hereby authorized and empowered to do, and also such damages as any person may have sustained by such animal going at large and trespassing.”

The 13th section authorizes the establishment of pounds; the 14th, the appointment of pound-keepers; and the 16th declares, that the “ commissioners shall have power to pass all such by-laws, rules and regulations as they may deem necessary and proper for the management of their business.” The extent of power conferred by these general words is shown in the case of Intendant & Council v. Pippin, supra. The adoption of suitable by-laws, to carry into effect the provisions of said section 12, was and is clearly within the purview of their powers, expressly conferred.

3. That portion of the 4th section of the act of incorporation, which makes a discrimination on account of color, is violative of the fourteenth amendment of the constitution of tbe United States. When that amendment was ratified — ■ July 28th, 1868 — the distinction on account of color was necessarily abrogated. It is contended that this operated a repeal of the entire fourth section of the act, and avoided all elections held from time to time afterwards. The word white was struck from this section by the act approved January 2d, 1872; but the point of the argument is, that in the transition, one set of commissioners must have been chosen at an election held by persons not legally elected, and that this invalidated the election thus conducted. From this the conclusion is attempted to be drawn, that the persons assuming to act as commissioners in February, 1874, when the pound at the “Winn place” was established, and Webb appointed the keeper thereof, were not legal officers; that the whole proceeding was irregular, and that it conferred no legal authority on Webb.

We are not informed by the record in what manner the elections for commissioners were conducted, after the fourteenth amendment became operative: whether the elections were made solely by white male persons, resident landowners in the district, or whether the color-line was regarded as obliterated. If, in the conduct of the elections, the ballot was accorded alike to white and colored land-owners, such election, properly conducted, would stand the test of the severest judicial scrutiny, even when assailed by a direct proceeding for that purpose. In popular elections, held at the time and place, and by the officers required by law, the main inquiry is, in whose favor was a majority of legal votes cast ? The statutory expressions as to all other questions are more or less directory. — See Leading Cases on Elections (.Boilectu’s case), 270; State, ex. rel. v. Judge 9th Cir., 13 Ala. 805; Cooley Const. Lim. 623. This question, however, is not before us, for no direct proceeding was instituted to test the legality of the election.

4. The persons exercising the functions of commissioners were certainly de-facto officers; and that is enough to render them acts valid, when collaterally presented. — 2 Brick. Dig. 289-90, §§ 18, 19, 20. In the case of Commonwealth v. Smith, 45 Penn. St. 59 (S. C. Leading Cases on Elections, 274), it is said: “If an election for managers of a corporation be not disputed during their term of office by quo warranto, and they be permitted to act throughout their term as officers-de facto, the legality of the next election can not be questioned for any vice or irregularity in the first.” Under this rule, which has our sanction, each successive set of commissioners would, in any event, become officers de facto of the corporation, and their acts, when collaterally presented, would be pronounced valid. The legal right of only one set could be questioned, which must be done by a direct proceeding, and during the continuance of the particular term in which they were acting under claim of election. The acts of the board of commissioners, in establishing a pound on the “ "Winn place,” and in appointing the appellee to be the keeper thereof, can not be avoided by any irregularity in the conduct of the election under which the commissioners claimed to act.

5. It is contended, however, that the pound on Winn’s place was established, and Webb appointed keeper thereof, by Stickney, the president, and not by the board of commissioners, as required by the 13th section of the charter, which declares, “that said commissioners shall establish a sufficient number of pounds, at convenient distances apart,” and shall “ appoint suitable persons to take charge of and keep up said pounds.” These duties, we think, require the action of the board of commissioners, and they can not be delegated to one of their number. Potestas clelegata non potest delegari. Craig v. Burnett, 32 Ala. 728; Dil. Mun. Corp. § 60.

The witness Stickney says, he, “ as president of said board, established a pound at the Winn place, in Hale county, and appointed J. C. Webb pound-keeper thereof, and issued and sent to him the commission” attached to the bill of exceptions as “Exhibit C.” The commission thus attached reads as follows:

“Greensboro, Ala., Feb. 2d, 1874. To J. C. Webb: A pound is hereby established at the Winn place in Hale county, Ala., and you are hereby appointed pound-keeper thereof, by order of the board of commissioners of the Canebrake Agricultural District. C. L. Stiokket, pres, of board.”

The board, at its meeting in April, 1867, had resolved, “ That the president of the board of commissioners of the Canebrake Agricultural District shall have the power to establish pounds and appoint pound-keepers in localities, when petitioned by the residents to do so.” The record discloses a petition, bearing several names, addressed to C. L. Stickney, asking the establishment of a pound at Winn’s place, and the appointment of Webb as pound-keeper. There appears to have been an entry on the minutes of the board, as follows: “Application for pound by John C. Webb, granted, Jan. 8, 1874.”

This evidence is clear and undisputed. It shows that the establishment of the pound, and the appointment of the keeper thereof, were done by the president, and not by the board. The bill of exceptions informs us, that it contains all the evidence; and what we have stated above, is all that bears on tbis question. Tbis all points in one direction, and it left tlie jury no room for doubt in tbeir finding as to tbis fact. It was permissible and proper to state it without hpyo-tbesis; for tbis was only charging on the effect of the evidence bearing on tbis question. The court might have instructed the jury, and should have done so, if thereto requested in writing, that there was no evidence before them, authorizing the defendant to seize, impound, or sell the cattle of plaintiff.

The 14th charge asked and refused is in the following language : “ If the jury believe, from the evidence, that the defendant (Webb) found plaintiff’s cattle (sued for) on his oats, and that said Webb pounded said cattle upon his lot, and five (5) days afterwards drove them, or caused them to be driven, to Demopolis, for the purpose of selling them ; and that while said cattle were in Demopolis, plaintiff caused the writ in this action to be served on defendant, — then any commission to said Webb, as pound-keeper on the Winn place, issued and directed as adduced in evidence by defendant, will not prevent a recovery in this case.” This charge simply postulates a set of facts, within the purview of the evidence, that would give to plaintiff a prima facie right to recover, and then affirms the invalidity of Mr. Webb’s commission, as a justification for the detention of the property. It should have been given.

We do not think the Circuit Court erredinrefusing the other charges asked, but we deem it unnecessary to pass them in review, and point out the varying reasons. To do so, would swell this opinion unnecessarily. The questions presented by them will not probably arise on the next trial.

6. The objection to the evidence given by the witness Stick-nev, was only general, to a mass of evidence, much, if not the whole of which, was legal. The grounds stated for the objection were but the specification of reasons for excluding the whole of his testimony. Such obj ection, and exceptions furnish no ground for reversal. — 1 Brick. Dig. 558, § 122. The other objection to the introduction of evidence were not well taken.

7. One other point raised by this record, we feel it our duty to notice. The charter of the “ Canebrake Agricultural District” designates certain beginning and bearing points for both the northern and southern boundaries of the district. These the commissioners have no power to change or depart from. The latest expression of the legislative will on this subject is a law to them, which they cannot disregard. Between the designated points in the boundaries, they may ascertain and establish the lines. They can not change the beginning points, nor deflect so as not to touch, the named places.

For the single error above pointed out, the judgment of the Circuit Court is reversed, and the cause remanded.