141 Ala. 318 | Ala. | 1904
By an act approved October 1, 1903, (Acts, 1903, p. 365), entitled an “Act to prevent stock from running at large in cities and toAvns of five thousand inhabitants or more,” it was provided, “that from and after the passage of this act it shall be unlawful to permit any horse, mule, jack, jenny, coav, hog, sheep, or goat to1 run at large in any city or town of this State of five thousand inhabitants or more.”
2. “The governing bodies of all such cities or towns are hereby authorized and empowered, and required to adopt all such ordinances and laws as shall be necessary to prevent the running at large within these limits of
The statute is a general law, applicable to the -whole state. It is not questioned, nor can it be, that the legislature was competent to pass this law, and impose its enforcement as a duty upon the municipal governments. After the passage of the act, it became and was unlawful for any person owning any of the animals mentioned in the first section, including cows, to allow such animals to run at large in any city or town of the state, having five thousand inhabitants or more.
The governing bodies of all such municipalities are not only authorized and empowered, but are “required,” — which in legislative language is equivalent to commanded — to adopt, all such ordinances and laws as shall be necessary to prevent the running at large within such cities or -towns, of the stock or cattle named in the act. There is no discretion left with those governing bodies as to the passage of- such ordinances. They are required, commanded to- do- so', and without a violation of municipal duty, they cannot forego the discharge of this obligation. 'So- far as they are concerned, the duty is entirely ministerial, which they may be compelled to perform. “It may be stated as á genera] rule, that when a statute of the city charter imposes on the council a mandatory duty, as to the performance of which they have no- discretion, mandamus will lie to compel its performance.” — 19 Am. & Eng. Ency. Law, (2d ed.) 864-867.
“It may he affirmed as a general rule, sanctioned by the best authorities, that when a plain and imperative duty is specifically imposed by law upon the officers of a municipal corporation, so that in its performance they act merely in a ministerial capacity, without being called upon to exercise their own judgment as to whether the duty shall or shall not be performed, mam-damus is the only adequate remedy to set them in motion, and the writ is freely granted in such cases, the
It is shoAvn that the mayor and aldermen had passed ordinances to carry into effect said statute as to the running at large of any of the animals named therein, except cows, and they refused to pass any ordinance to prevent their running at large, although formally petitioned by the complainants in this case to do so.
As for anything brought to light by defendant by demurrer to the petition in response to the rule nisi, they have not shown any legal excuse for their failure to obey the mandates of the legislation. There was no error in the judgment of the lower court awarding the m a n da mus. — Authorities, supra.
Affirmed.
