Edwards v. Bibb County Board of Com'rs

• Decision Date: 30 June 1915
• Docket Number: 595
• Citation: 69 So. 449,193 Ala. 554
• Parties: EDWARDS et al. v. BIBB COUNTY BOARD OF COM'RS.
• Court: Alabama Supreme Court

69 So. 449

193 Ala. 554

EDWARDS et al. v. BIBB COUNTY BOARD OF COM'RS.

No. 595

Supreme Court of Alabama

June 30, 1915

Appeal from Circuit Court, Bibb County; B.M. Miller, Judge.

Certiorari by R.W. Edwards and others against the Bibb County Board of Commissioners to quash their proceedings in the matter of an election to establish a stock law district. From a judgment dismissing the writ, complainants appeal. Affirmed.

Logan &amp Logan, of Centerville, for appellants.

Lavender & Thompson, of Centerville, for appellee.

SAYRE J.

This is an appeal from the circuit court of Bibb to reverse a judgment dismissing a common-law writ of certiorari by which appellants sought to quash the proceedings of the court of county commissioners in the matter of an election to establish a stock law district. Only two or three points made in the brief for appellants need be specially noticed.

The proceedings in the commissioners' court were had under the provisions of chapter 139 of the Code. Section 5881 of the chapter confers upon the courts of county commissioners or courts of like jurisdiction, in their respective counties full and complete authority to direct and supervise the holding of elections for establishing stock law districts, and to declare the results of such elections. In relation to such matters the court possesses original and unlimited jurisdiction, except where otherwise provided by law, to be exercised in conformity with the provisions of the Code. Section 3312. Section 5882 provides that a proceeding to establish a stock law district shall be commenced by filing a petition with the court of county commissioners. There is no prescription of notice of any kind to be given by the court, but the statute requires that upon the filing of the petition the court shall proceed to inquire and ascertain whether or not the petition is signed by a majority of the bona fide freeholders residing in and owning a freehold estate in the precinct to be affected outside of any incorporated city or town. If so, and other provisions of the statute to which we need not refer having been complied with, an election is ordered. Appellants contend that the statute is void for the reason that it authorizes the court to order an election affecting their property rights without due process; that is, without personal notice to them, or some general public monition emanating from the court, by which they will be presumed to have been affected.

In the enactment of this statute the Legislature was exercising the police power of the state, which is universally conceded to include the public peace, order, and convenience, as well as other things of perhaps greater moment. Due process does not in all cases require resort to a court of justice to assert the rights of the public against the individual, or to impose burdens on his property for the public benefit. Davidson v. New Orleans, 96 U.S. 97, 24 L.Ed. 616. This statute does not condemn the individual in his person or property. It merely regulates his enjoyment of property rights, and it has been established by decisions too numerous to mention that, while the due process clauses of the state and federal Constitutions are designed to preserve life, liberty, and property against the encroachments of mere arbitrary power, they do not intend to interfere with the power of the state by legislative enactment, without more, to impose, subject to judicial approval, such reasonable regulations as may be deemed essential to the general good of the community. See annotations to section 6, Const. (Crim.Code); 5 Encyc. U.S.S.Ct.Reps. 536, notes. That this statute in its general provision is a valid exercise of the police power is beyond question. Dillard v. Webb, 55 Ala. 468. The Legislature might, therefore, have imposed it upon the entire state at one stroke. It makes no difference in the principle to be observed in passing upon its validity that the Legislature has left the matter to local option and has provided an administrative process by which the will of the community shall be ascertained. Dillard v. Webb, supra. The procedure provided by the statute in its present form is not judicial, but it is legislative and administrative, leaving the question whether the regulation of the statute shall be applied to be determined by a majority of those to be affected. It has the sanction of governmental necessity and long usage, and its validity is not open to serious question. Brannon's Fourteenth Amendment, 146, 147.

Windsor v. McVeigh, 93 U.S. 274, 23 L.Ed. 914, Betancourt v. Eberlin, 71 Ala. 461, and other cases of similar character, to which appellants attach some importance, are not at all in point. The proceedings in those cases affected the very substance of property rights, were necessarily judicial in their nature, and involved therefore the necessity for mesne process of some sort to bring into court the parties whose substantial rights were to be litigated.

Appellants say further that the order for an election was void, for that it was not made at an authorized sitting of the court of county commissioners. The petition for certiorari to the circuit court alleges that the order was made on November 10 1913. It alleges also that said day was not a day of any regular term, and that the record of the commissioners' court fails to show affirmatively that a special term was held on that day, or that a special term was directed by the judge of probate, or advertised for 10 days as provided by section 3311 of the Code. "Regular terms of the court are held on the second Mondays in February and August, and the first Mondays of April and November." Code, § 3310. The copy of the order for an election, transmitted to the circuit court and shown in the transcript here, carries no date upon its face. But the judge of probate certifies to "a copy of the proceedings at the regular term of the commissioners' court on November 10, 1913." The acts of the commissioners' court held at a time or place not authorized by law are void. Wightman v. Karsner, 20 Ala. 446. But it is a court of record. Code, § 3306. It had...