New Decatur v. Berry

• Decision Date: 21 May 1890
• Citation: 7 So. 838,90 Ala. 432
• Parties: NEW DECATUR v. BERRY.
• Court: Alabama Supreme Court

7 So. 838

90 Ala. 432

NEW DECATUR v. BERRY.

Supreme Court of Alabama

May 21, 1890

Appeal from city court of Decatur; W. H. SIMPSON, Judge.

Plaintiff was employed by defendant, the town of New Decatur, as "chief of the quarantine guard," and brought this action for services rendered in that capacity, recovered judgment, and defendant appeals.

C A. Castle and Wert & Speake, for appellant.

J M. Buford, for appellee.

MCCLELLAN J.

"It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation,-not simply convenient, but indispensable." 1 Dill. Mun. Corp. § 89; Smith v. Newbern, 70 N.C. 14; Cook Co. v McCrea, 93 Ill. 236; Mayor, etc., v. Wharf Co., 63 Ala. 611; Eufaula v. McNab, 67 Ala. 590. Applying this statement of the powers of municipal corporations-which is said by high authority to be "the best summary of all the decisions upon that point to be found in all the books"-to the charter of the town of New Decatur as it was organized and existed in 1888, the conclusion must be against the power then exercised by that municipality to declare, establish, and enforce quarantine against the town of Decatur. New Decatur was organized under chapter 1, tit 14, Code,§§ 1486-1516, and its power to the end in question must be referable to that statute if it exists at all. Confessedly no such power is conferred by express words confessedly, also, no such power is essential-not simply convenient, but indispensable-to the declared objects and purposes of the corporation. And certainly, though not confessedly in this case, the power to establish quarantine, and prohibit persons and property from coming or being removed into the town from Decatur, cannot be said to be necessarily or fairly implied in or incident to the express grants of powers, which are to pass by-laws to enforce the powers granted; to prevent and remove nuisances; license, etc., shows, amusements, and retailers; to restrain and prohibit gaming, houses of ill fame, disorderly conduct, etc.; to establish watches, and appoint captains thereof; to establish and regulate markets and town prisons, sink and repair public wells, etc., and keep in repair streets,...