62 Ala. 471 | Ala. | 1878
The authority under which Stroud, the marshal of the town of Munford, asserts the right to hold the petitioner in custody, is a warrant or mittimus, reciting that Moore, the petitioner, had been tried and convicted under an ordinance of the town council, prohibiting retailing without license, <fec., and adjudged to pay a fine of twenty-five dollars and costs. The warrant then proceeds : “ You are therefore commanded to receive him (Moore) into custody, and detain him until such fine and costs are fully paid.”
The petitioner was not convicted for a breach of the peace, nor for disorderly conduct, and hence could not be imprisoned as a punishment. His offense could be punished by a money fine, not exceeding fifty dollars, to be collected by execution against the property of the offender, with the further provision, that if he failed to pay the fine assessed against him, he might be sentenced to hard labor on the streets of the town, for a period of thirty days. Committing an offender to the custody of an officer, is depriving him of his personal liberty — is imprisonment. It is, in this case, indefinite in duration. “ Until such fine and costs are fully paid,” is the mandate. This is essentially different from hard labor on the streets. It is not for us to speculate on the relative hardship or odiousness of the two modes of punishment. Sufficient for us that the statute authorizes the one, and does not authorize the other. Conceding the incorporation to have been regular in every step of its organization, the imprisonment in this case was without warrant of law. This necessarily works a reversal of the judgment of the Circuit Judge. — Steele v. The State, and Kirby v. The State, December term, 1878.
Even if it were true that the act of the legislature incorporating the town of Munford — (Pamph. Acts of 1868, page 107) — is unconstitutional, because the act embraces two subjects, one of which is not expressed in the title, the effect would not be to invalidate the whole statute. The title of the act is, “To incorporate the town of Munford, in the county of Talladega.” The argument id that section five of
It is settled in this State, and such is the current of authorities, that a municipal corporation is not ipso facto dissolved or destroyed by a non-user of its powers. It requires a judicial sentence to effect the dissolution. — Harris v. Nesbit, 24 Ala. 398; Welch v. Ste. Genevieur, 1 Dil. Cir. Ct. Rep. 130; 1 Dil. Corp. § 110 et seq.; Ang. & Ames, Corp. § 771.
The incorporation of the town of Munford under the special and amendatory acts, being still of force, the Probate Judge had no power to grant a second charter under the general law. • His powers in the premises were limited to towns not incorporated. — Code of 1876, §. 1763. Further, towns cannot have, at one and the same time, two co-existing charters of incorporation. What, then, is the effect of the invalidity of the second attempt at incorporation ? The question comes before us collaterally, not on a direct proceeding to vacate the charter, or to oust the officers, by a writ of quo warranto, or proceeding in the nature of it. The repose and well-being of society will not allow corporations to have their organizations practically annulled in a collateral proceeding. Nor can one who is colorably in office, publicly exercising its functions, be treated as a usurper, and resisted as such. He is an officer de facto, and must be submitted to as such, until displaced by a regular, direct proceeding, instituted for the purpose. — Duke v. Cahaba Nav.
The writ of habeas corpus and certiorari will be awarded by this court, to bring before us the petitioner, together with the proceedings had before the Circuit Judge, unless, on another application, the Judge grants the relief to which the petitioner is entitled, as shown above. — Ex parte Croom and May, 19 Ala. 561-570.