Gill v. Wilder

• Decision Date: 11 May 1928
• Citation: 95 Fla. 901,116 So. 870
• Parties: GILL et al. v. WILDER, Sheriff.
• Court: Florida Supreme Court

116 So. 870

95 Fla. 901

GILL et al. v. WILDER, Sheriff.

Florida Supreme Court, Division A.

May 11, 1928

Suit by G. H. Gill and others against A. H. Wilder, Sheriff of Polk County, for an injunction. From a decree of dismissal complainants appeal.

Affirmed.

Syllabus by the Court

SYLLABUS

Ownership of live stock within state is subject to state's police power; state, in exercise of police power, may prohibit letting animals run at large; state, in exercise of police power under proper regulations, may provide for impounding and sale of animals running at large, contrary to statute (Sp. Acts 1923, c. 9580, as amended by Sp. Acts 1925, c 11024). Ownership of live stock within the state is subject to the police power thereof, in the exercise of which power the state may prohibit the running at large of such animals and provide for the impounding and sale of offending animals under proper regulations.

Statute prohibiting cattle running at large in designated county complete within itself may be enacted to take effect on adoption by majority of county electors (Sp. Acts 1923, c 9580, as amended by Sp. Acts 1925, c. 11024). A statute prohibiting the running at large of cattle in a designated county may be enacted to take effect upon the favorable vote of a majority of the qualified electors of the affected county, provided such statute, as enacted, is complete within itself.

Statute authorizing sale of cattle running at large to pay costs of impounding, maintenance, and cost of sale, after due notice, held not to deprive of property without due process (Sp. Acts 1923, c. 9580, as amended by Sp. Acts 1925, c. 11024; Const. U.S. Amend. 14). Chapter 9580, Sp. Acts of 1923, as amended by Sp. Acts 1925, c. 11024, prohibiting the running at large of cattle in Polk county, and providing for the impounding and sale of offending cattle to pay costs of impounding, maintenance, and cost of sale, due notice of such impounding being given to the owner when known, and a further notice of the sale of unredeemed cattle being published 10 days before such sale, during which time the owner may redeem the same, the owner also being permitted to redeem the residue of the proceeds of the sale within 60 days, is valid as against the objection that such procedure deprives the owner of his property without due process of law; no charge, forfeiture, penalty, or liability for damages or otherwise being imposed upon the stock or its owners other than the reasonable cost of impounding, maintenance, and reasonable costs of sale.

Due process of law does not in all cases require resort to court before asserting public rights under police power (Const. U.S. Amend. 14). Due process of law does not in all cases require a resort to a court of justice before asserting the rights of the public against the individual in the lawful exercise of the police power.

Whether owner of live stock running at large is liable for fines, forfeitures, or damages can be determined only by judicial investigation (Const. U.S. Amend. 14). Where fines or forfeitures of a penal or criminal nature or liability for damages done by live stock running at large in violation of statute, other than the reasonable costs and expenses of impounding, maintaining, and selling such stock, are involved or are to be determined, the question whether the owner of the live stock is liable for the same can only be determined by a judicial investigation.

Legal remedies, supplemented by injunction, generally are sufficient to afford due process and a judicial determination whether animals were running at large, and whether statute was complied with in impounding and selling them (Sp. Acts 1923, c. 9580, as amended by Sp. Acts 1925, c. 11024; Const. U.S. Amend. 14). The ordinary remedies afforded by law, supplemented by equitable remedy by injunction in appropriate cases, have been generally regarded as sufficient to afford due process and a judicial determination as to whether animals were in fact running at large in violation of a statute, and whether the provisions of the statute have been complied with in impounding and selling the animals.

Bill to enjoin impounding cattle held insufficient on demurrer to show they were at large by accidental or unknown escape. Allegations of the bill of complaint in this case examined, and found to be insufficient to show that the cattle involved in this suit were at large by mere accidental or unknown escape from their owners, and not negligently or designedly permitted to run at large.

Constitutionality of portion of statute will not be decided at instance of unprejudiced party, unless such provision, if unconstitutional, would render invalid provision affecting party's rights. The constitutionality of a portion of a statute will not be decided at the instance of a party who is not prejudiced and whose rights are not affected by such provision, unless the provision assailed is of such a nature that, if unconstitutional, it would render invalid a provision of the statute that does affect the rights of such party.

Statute prohibiting animals running at large, if adopted, held not inoperative until county commissioners erect fence required by section 12 (Sp. Acts 1923, c. 9580, as amended by Sp. Acts 1925, c. 11024). It does not appear to us to have been the legislative intent that the provisions of chapter 9580, Sp. Acts of 1923, if effectuated by the local election therein provided for, should be further held in abeyance and inoperative until the county commissioners of Polk county should have performed their duty under original section 12 to erect a fence.

Appeal from Circuit Court, Polk County; H. C. Petteway, judge.

COUNSEL

W. D. Bell, of Arcadia, for appellants.

Milton D. Wilson, of Bartow, for appellee.

OPINION

STRUM, J.

This suit is brought to test, in the respects hereinafter discussed, the validity under state and Federal Constitutions of chapter 9580, Sp. Acts of 1923, as amended by chapter 11024, Sp. Acts of 1925, prohibiting the running at large of cattle in Polk county.

Appellants who were complainants below, brought a bill in equity seeking to enjoin appellee, defendant below, as sheriff of Polk county, from impounding, offering for sale, or selling, any of complainants' cattle that might be found running at large in Polk county until such time as the county commissioners of said county shall construct a fence along such boundary lines of said county as may not have natural barriers to prevent the intrusion of cattle into said county from other counties where cattle may lawfully run at large. Complainants allege, and by answer and demurrer it is admitted, that they are the owners of large numbers of range cattle lawfully running at large in counties adjacent to Polk county; that, under section 12 of chapter 9580, supra, which was made effective by the local election therein provided for, it became the duty of the county commissioners of Polk county to construct as soon as practicable, a fence around such portions of said county as were not bounded by a natural barrier; that such fence has not been constructed, but nevertheless the defendant sheriff threatens to impound complainants' cattle found running at large in Polk county, and, if necessary, to sell the same under the provisions of said statutes. Complainants allege that the enforcement of said statutes according to their terms will deprive complainants of their property without due process of law, contrary to state and Federal Constitutions. Further alleging the inadequacy of their remedy at law on account of the multiplicity of suits at law necessary to enforce their supposed rights in the premises, complainants pray an injunction. See Morgan v. City of Lakeland, 90 Fla. 525, 107 So. 269. Other allegations of the bill are noticed hereinafter.

The case was heard upon bill and answer, in which answer was incorporated a demurrer. From an order dismissing the bill, complainants appeal.

Complainants urge the statutes under consideration to be unconstitutional, because: (1) The Legislature has no power to enact legislation of the character under consideration; (2) because the statutes provide for the impounding and sale of cattle without a judicial determination as to whether or not they are running at large within the meaning of the statute, and whether or not the costs and charges for impounding and feeding such cattle is reasonable; and (3) because the subject-matter of section 12, as amended by the act of 1925, is not germane to the subject-matter of section 12 of the original act of 1923, which it purports to amend, and therefore is not embraced within the title of the original act, by reason whereof amended section 12 is void, leaving original section 12 in effect, and that the original act does not authorize the impounding or sale of cattle running at large until the county commissioners shall have erected the fence provided for in original section 12. The bill of complaint was filed August 19, 1925, subsequent to the effective date of the amendatory act of 1925.

The cases are legion in which it is held competent for the Legislature, in the exercise of the police power of the state, to delegate to local governmental subdivisions, such as cities, the power to eanct ordinances regulating the confining and running at large of cattle or live stock, and that such ordinances, when reasonable, are valid. Amongst other cases see Waller v. Osban, 60 Fla. 268, 52 So 970; Morgan v. City of Lakeland, 90 Fla. 525, 107 So. 269; Folmar v. Curtis, 86 Ala. 354, 5 So. 678; and the many cases cited in 6 A. L. R. 229. Similarly, the Legislature by plenary enactment may prohibit the running at large of live stock within a designated county, and provide for the impounding and...