Spigener v. Rives

104 Ala. 437

• Court: Supreme Court of Alabama
• Decided: November 15, 1893
• Status: Published

Opinion

COLEMAN, J.

The appellant sued the appellee in trespass for taking up cattle which were trespassing upon his lands. The appellee justified under an. act approved February 18th, 1891, (Acts 1890-91, pp. 1144-1148, inclusive), entitled-“An act to prevent the running at large of stock in certain portions of Elmore county. ’ ’ The only question presented is as to the constitutionality of the act. That laws to prevent the running of stock at large within certain districts are within the constitutional power of the legislature can not be questioned. — McGraw v. The County Commissioners of Greene, 89 Ala. 407; Stanfill v. Court of County Revenue of Dallas County, 80 Ala. 287 ; Davis v. State, 68 Ala. 58. It is contended by appellant that sections 10-13, inclusive, are violative of constitutional provisions contained in sections two and five of Article XI. — Code, page 43. The writer of this opinion does not think it necessary to decide whether the sections of the act referred to are liable to the objections ui-ged against them or not. The sections of the act under which the defendant justified, in my opinion, are separable from those sections against which the objection is made. — Ex parte Cotoart, 92 Ala. 99; Powell v. The State, 69 Ala. 10 ; McCreary v. The State, 73 Ala. 480 ; 3 Brick. Dig. 127, § 18; Noble & Ware v. Mitchell, 100 Ala. 519. My associates are of opinion that the constitutional provision cited has no application to the statute, and that the whole act is free from constitutional objection. We all concur in the conclusion that the statute afforded a complete defense to the defendant.

Affirmed.