Barnhill v. Teague

• Decision Date: 27 July 1892
• Citation: 11 So. 444,96 Ala. 207
• Parties: BARNHILL v. TEAGUE.
• Court: Alabama Supreme Court

11 So. 444

96 Ala. 207

BARNHILL v. TEAGUE.

Supreme Court of Alabama

July 27, 1892

Appeal from circuit court, Pike county; JOHN P. HUBBARD, Judge.

Action in detinue by A. M. Barnhill against James R. Teague. Defendant had judgment, and plaintiff appeals. Reversed.

D A. Baker and P. O. Harper, for appellant.

E W. Loveless, for appellee.

MCCLELLAN J.

Certain hogs, of the value of $10, were seized while running at large by James R. Teague under the supposed authority of "An act to prevent stock from running at large in Pike county," approved December 9, 1890, (Acts 1890-91, p 59.) A. M. Barnhill, claiming to be the owner of the stock so seized and held, brought an action of detinue therefor before a justice, and, being cast in that court, appealed to the circuit court of Pike county, where the cause was tried without a jury on the following agreement of the parties "We agree *** that the hogs sued for were seized and taken in custody by defendant under the act to prevent stock from running at large in Pike county, passed at the session of the general assembly of 1890 and 1891, approved December 9, 1890, and were valued at ten dollars, and that said hogs were the property of the plaintiff; that said hogs were in the possession of the defendant, and held by authority of said act, when this suit was brought in the justice's court. We further agree that if the said act be declared unconstitutional by the court, then the plaintiff shall have judgment for said hogs or their alternate value; but if it be declared constitutional by the court, then the defendant shall have judgment for said hogs or their alternate value,-each party reserving the right of appeal to the supreme court of Alabama." Judgment was rendered for the defendant, and its correctness is now presented for our consideration.

The first section of the act under consideration in most comprehensive terms, and, without condition or qualification whatever, makes it unlawful for the owner of any horse, mule, ass, cow, hog, sheep, or goat in Pike county to voluntarily or knowingly "permit any such animal to go at large off the premises of such owner;" and subjects him to liability for all damages which may result "to the fruit or shade trees, ornamental shrubbery, or crops of any person or persons in consequence of any such animal being suffered to go at large, such damages to be recovered before any court of competent jurisdiction, and the judgment therefor to be a lien on the stock inflicting the injury." The second section provides for the taking up and impounding of any such animal found at large on the premises of another, for notice to the owner when known, and to a justice of the peace of the beat when the owner is unknown, of the fact of impounding. Section 3 provides for the reclamation of any animal so taken up by the owner on payment of damages, fees, and costs; for a trial of the rightfulness of the seizure when that is not conceded; and, when the parties are not agreed as to amount of damages, etc., for a proceeding before a justice of the peace to determine the matter, judgment therein, when the seizure is found to have been rightful, for the damages not in excess of $100; and that, if the owner be unknown, the person taking up the animal shall proceed "as though such animal was estray, and in accordance with the law provided in the case of estrays." Section 4 provides for the sale of any animal so taken up when the owner is known, and has failed for 24 hours after notice to claim the same, etc. Section 5 provides a schedule of fees for taking up the animals specified, and for each day of their custody by the taker up. The sixth section provides that the act shall be inoperative from the 1st of December to the 15th of the following February, with a proviso "that stock running at large during such time upon any growing or outstanding crop shall be subject to all the penalties and damages arising under this act," and with the further proviso that the act shall not apply "to stock crossing over from counties where no stock law exists." The seventh and last section repeals all laws and parts of laws contravening the provisions of the act.

This synopsis of the act will suffice, we think, to demonstrate or to furnish data, so to speak, from which it is apparent, that the lawmakers undertook to accomplish their purpose to prevent stock from running at large in Pike county by two entirely different classes of provisions, or by the imposition of two separable and distinct penalties. In the first section, as we have seen, the end is sought to be accomplished by a declaration of the unlawfulness of allowing certain live stock to go at large off the premises of the owner, and by subjecting any owner to a suit and judgment for all damages resulting from his unlawful act, and fastening a lien on the depredating stock for the satisfaction of such judgment. This section is not dependent for force or completeness upon any other section or clause of the act. It is in and of itself a well-rounded out and complete enactment, entirely capable of enforcement, and well adapted to the consummation of the legislative purpose of prevention, without reference to any subsequent provision of the statute. But one subsequent provision, as a matter of fact, bears upon this first section; and that not by way of weakening its force in its general application, but only by confirming its general operation to that period of each year falling between the 15th day of February and the 1st day of December, and giving it between December 1st and February 15th next ensuing only a special operation as to stock running at large upon growing or outstanding crops, thus relieving the owner, so far as this statute is concerned, from the liability imposed by the first section for injuries to shade and fruit trees and ornamental shrubbery occurring during these two and a half winter months. The remaining sections of the enactment undertake to more certainly effectuate the legislative purpose of prevention by providing other and different penalties for a violation of the inhibition of the first section, other and different means of enforcing such penalties, and other and different modes of proceeding to...