Jones v. Hines

• Decision Date: 25 November 1908
• Citation: 47 So. 739,157 Ala. 624
• Parties: JONES v. HINES.
• Court: Alabama Supreme Court

47 So. 739

157 Ala. 624

JONES v. HINES.

Supreme Court of Alabama

November 25, 1908

Appeal from Circuit Court, Etowah County; John W. Inzer, Judge.

Action by J. H. Hines against E. C. Jones. Judgment for plaintiff and defendant appeals. Reversed and remanded.

Goodhue & Blackwood, for appellant.

O. B Roper, for appellee.

SIMPSON J.

This suit was brought by the appellee against the appellant. The allegations of the amended complaint are, in substance, that defendant unlawfully permitted his hogs to run at large, and destroy plaintiff's corn, etc., in Gadsden, "a district in which it is unlawful for hogs to run at large," and thus caused damage to plaintiff.

The act of October 1, 1903, provided that "it shall be unlawful to permit any horse * * * hog," etc., "to run at large in any city or town of this State of five thousand inhabitants or more," and went on to provide that the governing bodies of such municipalities "are authorized and empowered and required" to adopt such ordinances as shall be necessary to prevent the running at large of stock therein, and to take up and impound the same. Acts 1903, p 365. The corporate authorities of the city of Gadsden passed an ordinance reciting the provisions of the act, and declaring it unlawful for any horse, mule, jenny, cow, hog sheep, or goat to run at large within the corporate limits of said city. The second section of the ordinance provides for impounding stock found running at large in said city, and prescribes what fees shall be paid for releasing such stock, in default of which the stock may be sold.

The bill of exceptions shows that the defendant resides in the country outside the corporate limits of Gadsden, and that his hogs were found in the garden of the plaintiff, having destroyed a part of the vegetables, etc., growing therein. Although neither the act of the Legislature nor the city ordinance intimates any liability on the part of the owner of the stock, save the liability to have his stock impounded and sold, yet the plaintiff relies upon the principle that the law has made it unlawful to permit such stock to run at large, and that, therefore, the defendant is liable because he violated the ordinance by permitting his hogs to run at large in said city, and is consequently liable in damages for the resultant injury.

There are several considerations which prevent the operation of such a principle. In the first place, the last federal census shows that Gadsden had then much less than 5,000 population and there is no evidence tending to show that it has now any more. Appellee claims that the ordinance is presumed to be valid, but the ordinance does not even recite the fact that said city has that large a population; and, when the act relates only to cities of a certain class, the court cannot presume that a given city belongs to that class against the fact that the only evidence within its judicial knowledge shows that it does not. Adams v. Elwood, 176 N.Y. 106, 68 N.E. 126. It cannot be said that the act itself fixes any liability on the defendant, for the act is directed at the city authorities, and evidently means that it shall be unlawful for them to permit the stock to run at large, and places upon said authorities, not the duty of punishing personally those whose hogs run at large, but merely the duty of making laws for impounding the stock. In other words, both the act and the ordinance are directed against the animal, and not against the owner except as he may be affected by the taking and selling of his...