Flowers v. Grant

129 Ala. 275 | Ala. | 1900

HANALSON, J.

1. The act of December 9, 1886, (Acts, 1886-87, p. 739), to authorize the commissioners’ court of Henry, Pickens and Dale counties to establish or abolish districts in which live stock may be prevented from running at large, in its second section provides: “That whenever any ten freeholders petition said court, in writing, stating that they desire an order to be made establishing a district wherein live stock shall not run at large, fully describing such district, and stating that petitioners reside in such district,” etc., the court shall proceed in the manner directed afterwards in said act, to establish it or not, as they may determine on trial had.

Under this, act, twelve persons, on August 25th, 1899, filed their petition in the probate court of Henry county to establish a stock law for beats 6 and 21, and that portion of beat 16 lying south of the Shelby Mill Creek, wherein live stock should not be allowed to run at large.

The petition reads: “Notice is hereby given that we, the undersigned citizens, owning lands” in the beats above described, make application, etc. The petition did not set out that the petitioners resided in the district described.

Under tliis application the said court, at the November term thereof, proceeded and established the district as prayed for.

On the trial of this case, the plaintiff offered separately said petition and the order of said court establishing said district, and the petition of the twelve citizens applying therefore, to which evidence the defendant separately and severally objected as to the petition, because it was illegal, and further, that it failed to state that the petitioners were freeholders and.resided in the district sought to be established, in which stock should ' not he allowed to run at large; and to the order, because it was not shown to have been based on a petition signed by ten freeholders stating that they resided in the district sought to be so established. The court separately and severally overruled defendant’s objections.

These rulings of the court were clearly erroneous. The petition did not contain the averment of facts necessary to give the commissioners’ court jurisdiction of the subject matter. The ten “citizens” who it is averred owned lands in said district, might have resided in any other county of the State, or in any part of the county of Henry outside of the district described. It is not upon such persons the law bestows the privilege of making such an application, and upon whose application an order of the .kind prayed for may be granted; but the order may be granted only when “ten freeholders,” who “reside in such district,” make application therefor. The commissioners’ court, as has been uniformly held, in the exercise of statutory powers, as were here conferred, is esteemed a court of limited jurisdiction, and to uphold its proceedings under the statute, its records must affirmatively show the existence of the facts upon which its authority rests.—Joiner v. Winston, 68 Ala. 130; Stanfill v. Commissioners Court, 80 Ala. 287; Brooks v. Johns, 119 Ala. 412.

The order establishing said distilct was void and no action accrued to the plaintiff- in this case for any violation of it. If the court for a wrong reason rendered a proper judgment, it is error without injury.

2. It appears that the charter of Headland (Acts, 1892-93, p. 893) provides that the mayor and aldermen are authorized to regulate, restrain and prohibit the running at large of horses, cattle, swine, sheep, goats, geese and dogs, and the defendant contends, that this provision of the charter‘repealed said act of 1886-87, providing for the establishment of stock districts in Henry and other counties; and this seems to have been the view taken of the matter by the court below. It does not appear that the act of 1892-93 has been carried into effect by an ordinance of said town. It is unnecessary, therefore, to decide, in tlie present aspect of the case, whether the former is repealed by the latter act. We refer, bow-ver, to onr decisions on the question: Olmstead v. Crook, 89 Ala. 228; Ex parte Mayor of Anniston, 90 Ala. 516; The State v. Stiles, 121 Ala. 363; Gilmore v. The State, 126 Ala. 21.

Affirmed.