McFarlain v. Town of Jennings

• Decision Date: 01 January 1901
• Docket Number: 14,097
• Citation: 31 So. 62,106 La. 541
• Court: Louisiana Supreme Court
• Parties: A. D. MCFARLAIN v. TOWN OF JENNINGS

31 So. 62

106 La. 541

A. D. MCFARLAIN v. TOWN OF JENNINGS

No. 14,097

Supreme Court of Louisiana

January 1, 1901

APPEAL from the Fifteenth Judicial District, Parish of Calcasieu. -- Miller, J.

Sompayrac & Toomer, for Plaintiff, Appellee.

Cline &amp Cline, for Defendant, Appellant.

OPINION

BREAUX J.

The town of Jennings adopted an ordinance relating to the running at large of stock within the town. We are informed by the record that after it had been adopted, the Mayor had a census of the town taken by his daughter, and the Council afterward ordained a census to be taken by a census taker regularly appointed. The census made by the Mayor's daughter shows that the population of Jennings was two thousand and four. The census taken a short time afterward by the census taker of the Council shows that two thousand and thirty persons resided in Jennings between June 1st and 9th 1901.

The Mayor and Council claiming that the number of inhabitants is more than two thousand, seek to have the stock ordinance enforced. In accordance with their order the cows of plaintiff were impounded, and plaintiff obtained an injunction and claimed damages against Jennings and its marshal. The census of the United States shows that the population of Jennings was fifteen hundred and thirty-nine in 1900.

The case was put at issue and tried. Judgment was pronounced for plaintiff sustaining his injunction and allowing him damages against the town in the sum of sixty-five dollars. Defendant appeals.

Manifestly the legality of the ordinance in question depends upon the extent to which the inhabitants can be held bound by the census taken at the instance of the municipality of Jennings. If that census is to be taken as fixing the number of inhabitants, then the town has at this time the required number to bring it within the scope of Section 17, of Act 136 of 1898, which confers upon the Mayors and Aldermen of cities and towns, having more than two thousand inhabitants, the power to prevent or to regulate the roaming at large of animals and cause them to be impounded. (§ 4th, Sec. 17 of the cited Act above.)

If, on the other hand, the census of the United States is to be taken instead, as conclusive of the number in the town, then the Mayor and Aldermen have not, because of the insufficiency in number, the power to have stock impounded that are found roaming in the town.

Under the Governor's proclamation issued in the year 1900, in pursuance of the provisions of Act 136 of 1898, Jennings having the requisite number of one thousand inhabitants, is a town, that being the number necessary to its incorporation under that Act. The municipalities under the Act just cited are to be classified according to their population as shown by the United States' census; the class is changed in accordance with the provisions of the statute.

In Section 8 of this statute special authority is conferred upon the Governor in matter of classification when it shall be shown by reference to an Act of Congress or Legislature that the population of a city, town, or village has increased or diminished so as to take it out of the class to which it previously belonged. It is then made his duty, after proper investigation, to make a correct classification of the erroneously classified corporation. The authority of the Governor, it will be observed, is confined to classification of these corporations into cities, towns and villages. The law contemplates, evidently, classifications by the executive based upon the number required to constitute a city, town, or village, but no reference is made in the statute to any other classification by the executive or to ascertaining any other number except those needful to establish classification of the corporation into a village, town, or city.

Yet, without regard to classification by the Governor, certain powers are delegated to designated municipalities when the number of its members exceed two thousand, and among these powers is the power delegated to impound stock. But the statute does not expressly authorize and direct how to find out and determine how many persons are within the town when it seeks to enforce powers delegated to towns of more than two thousand inhabitants.

As relates to the ascertaining if in the town there are as many persons as just mentioned, no reference is made to a census whether by the United States or by the State. The statute is absolutely silent upon the subject. The question arises should the number taken from the census be controlling, in the absence of statutory direction? If the population can only be determined by the United States' census, it would result in not carrying the legislative will into effect. It might well occur that a town would have the requisite number and yet for a period of nine or more years the law would remain a dead letter. As the law reads at present, it contains no reference to a census, as relates to the special power in question, and we take it that without a special enactment the census is not exclusive of all other methods of ascertaining the...