Shehane v. Bailey

110 Ala. 308

• Court: Supreme Court of Alabama
• Decided: November 15, 1895
• Status: Published

Opinion

COLEMAN, J.

The appellee, .Bailey, sued to recover damages, for trespass committed upon his crops by the cattle of the appellant, and recovered a judgment. The suit was instituted under the provisions of the act entitled “An act to prevent horses *• * cows, hogs * * from running uncontrolled on crops in the county of Montgomery,’’ &c. — Acts 1886-87, p. 913. The constitutionality of the act is attacked by the defendant, and upoh the invalidity of the act he relies solely for his de-' fense. Several sections of the act are referred to as being unconstitutional. Without undertaking to discuss the validity of these several sections, it "is sufficient to declare, that sections one, three and six afford a complete remedy to the person whose crop has been injured by the trespass of stock of another uncontrolled, as provided for in the statute. These sections could stand as an entire law, even though all others were stricken out. We must not be understood as passing upon the validity of the other sections of the statute. It will be time enough when a case arises which requires an adjudication of those questions.

■ It is further contended that the provision in section three which declares that “the judgment shall be a lien superior to all other liens except for taxes,” renders that section unconstitutional. This' question does not arise in the case before us and may never arise. As was said in Jones v. Black, 48 Ala. 540, by Peck, C. J., “Nor will a court listen to an objection made to the constitutionality of an act of the legislature by a party whose rights it does not specially affect. An act of the legislature will be assumed to be valid, until some one complains whose rights it invades ; and it is only when some person attempts to resist its operation, and calls in the aid of the judicial power to pronounce it void, as to him, his property or his rights, that the objection of unconstitutionality can be presented and sustained.” The question of a private lien is not one of public interest.—Smith v. Speed, 50 Ala. 276; Joiner v. Winston, 68 Ala. 129; State ex rel. &c. v. Montgomery Light Co., 102 Ala. 594. No one was present to assert a lien upon the property, and for aught that appears, no one held the lien upon the cows. The defendant is not in a position-to raise the' question. There is no error in the judgment of the court.

Affirmed.