Dunn v. Wilcox County

• Decision Date: 11 July 1888
• Parties: DUNN ET AL. v. WILCOX COUNTY.
• Court: Alabama Supreme Court

4 So. 661

85 Ala. 144

DUNN ET AL. v. WILCOX COUNTY.

Supreme Court of Alabama

July 11, 1888

Appeal from circuit court, Wilcox county; JOHN MOORE, Judge.

Application of Robert E. Dunn and others for writ of certiorari to the court of county revenue of Wilcox county. The circuit court refused the writ, and the petitioners appeal.

Brutus Howard, for appellants.

J N. Miller, for appellee.

SOMERVILLE J.

The only error assigned in the present case is the refusal of the judge of the Fourth judicial circuit to issue the writ of certiorari to the court of county revenues, as prayed for by the appellants in their petition to said judge. Code 1886, § 3616. The purpose of the suit is to assail the constitutionality of the several acts of the general assembly authorizing the court of county revenues of Wilcox county "to establish or abolish districts in which stock may be prevented from running at large." Acts 1880-81, p. 163; Acts 1884-85, pp. 531, 560; Acts 1886-87, pp. 851, 923. It is contended that these enactments are in violation of section 50 of article 4 of our present constitution, which declares that "the general assembly shall not have power to authorize any municipal corporation to pass any laws inconsistent with the general laws of the state." That these various statutes are inconsistent with the general laws of the state may be conceded. Code 1886,§§ 1364-1375. To sustain the appellants' contention it is necessary, therefore, to establish two distinct propositions: (1) That a county is a municipal corporation within the meaning of this section of the constitution; and (2) that the general assembly has delegated to the governing officers of Wilcox county the authority to pass stock laws within their discretion, or, in other words, that the state legislature has delegated to such county officials authority strictly legislative in its nature.

That the phrase "municipal corporation" is used in two distinct senses in our state constitution, as it often is in common parlance, seems quite obvious. In its more general sense, it may be made to include both towns and counties, and other public corporations created by government for political purposes. In its more common and limited signification however, it embraces only incorporated villages, towns, and cities. An example of the former meaning is found in section 52 of article 4 of the constitution, which prohibits the general assembly from taxing the property of "the state counties, or other municipal corporations," and in section 9 of article 11, which declares that the general assembly shall not have power to require "the counties or other municipal corporations" to pay any charges which are now payable out of the state treasury. So an example of the latter meaning is illustrated in section 7 of article 11, which provides that "no city, town, or other municipal corporation" shall levy, by way of taxation, more than one-half of 1 per centum of the value of taxable property; and, again, in section 7 of article 14, regulating the exercise of the right of eminent domain by "municipal and other corporations." This distinction between municipal corporations proper, such as towns and cities voluntarily organized under general incorporating acts or legislative charters, and what have been termed "involuntary quasi corporations," such as counties, sometimes generically termed "municipal," as pertaining to the civil and political administration of matters of state, is well defined and fully recognized in our jurisprudence. 1 Dill. Mun. Corp. (3d Ed.) §§ 22, 23; State v. McArthur, 13 Wis. 383; 2 Bouv. Law Dict. tit. "Municipal Corporation." The section of the constitution under consideration declares, as we have seen, that "the general assembly shall not have power to authorize any municipal corporation to pass any laws inconsistent with the general laws of the state." Const. 1875, art. 4, § 50. The phrase "municipal corporation," as here used, in our opinion, was intended to have reference to municipal corporations in their more limited and proper sense, or to incorporated villages, towns, and cities. It must be interpreted in reference to the mischief intended to be remedied, which was, very clearly, legislation by towns and cities in the form of by-laws and ordinances enacted under special charters, and not to the quasi legislative functions commonly conferred on courts of county commissioners and boards of revenue of counties, which are rarely conferred except by laws of a general character. While the general rule obtains that the power to make laws is vested in the general assembly by the constitution, and this power cannot ordinarily be delegated to any other tribunal, yet it is nowhere denied that it is competent for the general assembly to delegate to municipal corporations the power to enact by-laws and ordinances which in many particulars may have all the force and validity of a statute enacted by the general assembly itself. This is commonly done in the charters granted to incorporated towns and cities, and the authority thus conferred comprehends a vast number of subjects affecting the property rights and personal liberty of the citizen, and covering the same class of acts regulated by state laws. The American theory of municipalities is that the legislation...