Huey v. Waldrop

• Decision Date: 21 July 1904
• Citation: 141 Ala. 318,37 So. 380
• Parties: HUEY, MAYOR, ET AL. v. WALDROP ET AL.
• Court: Alabama Supreme Court

37 So. 380

141 Ala. 318

HUEY, MAYOR, ET AL. v. WALDROP ET AL.

Supreme Court of Alabama

July 21, 1904

Appeal from City Court of Bessemer; B. C. Jones, Judge.

Petition by J. R. Waldrop and others against T. T. Huey, mayor of the city of Bessemer, and others, for mandamus. Judgment for petitioners, and respondents appeal. Affirmed.

The petition averred that Thomas T. Huey was the regularly elected and acting mayor of the city of Bessemer, and the other named appellants were the regularly elected and acting aldermen of the city of Bessemer, and that said Huey and the other named persons constituted the board of mayor and aldermen of the city of Bessemer, which was the governing and legislative body of said city; that Bessemer was a duly incorporated city in the state of Alabama of more than 5,000 inhabitants; that there were no ordinances and laws of the city of Bessemer to prevent cows from running at large within the corporate limits of said city, and no ordinances or laws providing for the impounding of cows that might be running at large within the corporate limits of said city, or for the collection of penalties therefor; that prior to the filing of the petition, and after October 1, 1903, the petitioners had presented a petition to the board of mayor and aldermen of the city of Bessemer at a regular meeting, in which they prayed said body to pass ordinances and laws to prevent cows from running at large within the corporate limits of said city, to provide for taking up and impounding cows so found to be running at large, and to fix, prescribe, and provide for the collection of penalties and impounding fees for cows that might be found running at large within the corporate limits of said city, and by the passage of said ordinances thereby obey the mandates of the act of the Legislature approved October 1, 1903 (Acts 1903, p. 365), entitled "An act to prevent stock from running at large in cities and towns of 5,000 inhabitants or more"; that said mayor and aldermen of the city of Bessemer declined and refused to pass ordinances or laws as prayed for, and have not passed such laws and ordinances; that prior to the filing of the petition the said mayor and aldermen of the city of Bessemer had passed ordinances to carry into effect said act of the Legislature as to the running at large of any of the animals named therein except cows. The prayer of the petition was that a rule nisi be issued, directed to said Huey, as mayor and the other respondents, as aldermen, constituting the board of mayor and aldermen of the city of Bessemer requiring them to appear and show cause why mandamus should not be issued against them as the board of the mayor and aldermen, requiring them as such board to pass the necessary ordinances and laws to prevent cows from running at large within the corporate limits of the city of Bessemer, in compliance with the provisions of said act of the Legislature, and that upon the final hearing of said cause a peremptory writ of mandamus be issued to said board and aldermen commanding them to pass and adopt such ordinances and laws as are necessary to prevent cows from running at large within the corporate limits of the city of Bessemer, in accordance with the provisions of said act of the Legislature. To this petition the respondents demurred upon the following grounds: (1) Because the act of the Legislature of Alabama approved October 1, 1903 (Acts 1903, p. 365), is unconstitutional, and not capable of enforcement, in that it requires ...