State v. McCarty

CourtAlabama Court of Appeals
Citation59 So. 543,5 Ala.App. 212
Decision Date07 May 1912

On Application for Rehearing, June 5, 1912.

On Application for Rehearing.

Appeal from Sumter County Court; P.J. Jarman, Judge.

J. W McCarty was charged with violating quarantine regulations. A demurrer was sustained to the affidavit on constitutional grounds, and the State appeals. Reversed and remanded.

R. C. Brickell, Atty. Gen., and W. L. Martin Asst. Atty. Gen., for the State.

Sprott & Brockway, of Livingston, for appellee.


In this proceeding the constitutionality of the act of the Legislature establishing a State Live Stock Sanitary Board approved March 12, 1907 (Laws 1907, p. 413), as amended by an act approved August 6, 1907 (Acts 1907, p. 582), which now appears as sections 757 to 770 of the Code, inclusive, is presented to us for our consideration. The section of the Code under which this appeal is taken--section 6246--limits the decision of this court to the constitutionality of the statute drawn in question, and to the consideration of that question alone. On this appeal we have nothing to do with the question as to the sufficiency vel non of the affidavit and warrant upon which the defendant was arrested. State v Street et al., 117 Ala. 203, 23 So. 807.

There are certain powers which necessarily belong to all governments, and without which a government can no more exist than a man can exist without lungs. "A Constitution is not to receive a technical construction, like a common-law instrument or statute. It is to be interpreted so as to carry out the great principles of the government, not to defeat them." Hamilton v. St. Louis County Ct., 15 Mo 23; Dorman v. State, 34 Ala. 216.

The fourteenth amendment to the Constitution of the United States, "broad and comprehensive as it is, nor any other amendment, was designed to interfere with the power of the state, sometimes termed its 'police power,' to prescribe regulations to promote the health, peace, morals, education, and good order of the people, develop its resources, and add to its wealth and prosperity." Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923.

It cannot be denied that the motive which prompted the Legislature in placing these statutes in our Code of Laws was wise and beneficent; nor can it be claimed that the Legislature, in creating this law, did so with any covert purpose to contravene and set at naught any of the laws of the federal government. Provision is made in this law for harmonious action on the part of both the federal and state officials, in the effort, on the part of both the federal authorities and the state, through scientific experts, to control, minimize, and, if possible, stamp out communicable diseases to which stock are subject. "In every well-ordered state, property is held subject to the tacit condition that it shall be so used as not to injure the equal rights of others. Such injurious uses of property may be prevented by such regulations and restraints as the Legislature may think proper to impose; and in the establishment of these the only limits to the legislative authority which we can recognize are those which are declared by the fundamental law." Ingram v. State, 39 Ala. 247, 84 Am. Dec. 782.

In pursuance of a policy which it deemed wise and calculated to promote the interests of an important industry to which we have above referred, the Legislature, through the above provisions of the Code, called into existence the Live Stock Sanitary Board, investing it with certain powers which it deemed necessary for the maintenance of the health of live stock and the prevention of contagious diseases with which cattle and other live stock are liable to be affected.

Recognizing the patent fact that to attempt to prescribe rules which could apply to all sections, cover all contingencies, and relate to all the multitudinous administrative details of the system thus formulated would be to attempt that which, in view of the nature of the subject, was impossible, the Legislature, in section 758 of the Code, empowered the State Live Stock Sanitary Board to make such rules and regulations as they might deem necessary for governing the movement, transportation, or disposition, not of all live stock, but of live stock that might be quarantined under the provisions of the law, and in section 763 of the Code, requires the owners, renters, or parties in possession of quarantined live stock or quarantined places to obey the directions contained in the rules and regulations of the State Live Stock Sanitary Board in cleaning and disinfecting infected live stock and infected or quarantined places, and also requires them to cleanse and disinfect such live stock and places within a reasonable time after receiving notice from the Live Stock Board to do so. In section 7083 of the Code, punishment is provided, among other things, for "failing or refusing, without just cause and legal excuse, to cleanse and disinfect any infested or infected place in which live stock are kept, when requested or directed by the State Live Stock Board, the state veterinarian or his assistants, to do so."

The appellee was arrested on a warrant issued on an affidavit charging him with a violation of said section 7083 of the Code. His demurrer to the affidavit, attacking the constitutionality of the above-mentioned sections of the Code, from section 757 to section 770, inclusive, was sustained by the trial court, and the state appeals. The constitutionality of the above sections of the Code, as already stated, is the only question presented by the record, and is the only question which we are authorized to consider on this appeal.

Both principle and authority abundantly sustain the propriety--the necessity--of such legislation in general, and the validity of the legislative enactments now under consideration.

Legislation of this character is simply a legislative exercise of the police power of the state, a power without which, as we have already said, no enlightened state can exist. It cannot be denied that the state, out of necessity, has the undoubted power to provide by law for a quarantine of cattle afflicted with a contagious disease, and the unquestioned power to render such legislation effective of the purpose sought to be attained, by providing punishment for those who violate such law. Neither can it be questioned that the state also has the power to require its citizens, at their expense, to disinfect their diseased or infested live stock or infected places. Morgan's Steamship Co. v. Louisiana Board of Health, 118 U.S. 455, 6 S.Ct. 1114, 30 L.Ed. 237.

In the above article 4 of chapter 22 of the Code (sections 757 to 770, inclusive), the state has, through unquestionable constitutional channels, provided a system dealing with the preservation of the health of live stock and their protection from contagious diseases as fully as was within the scope of legislative vision at the time of the passage of those laws. Realizing that conditions would naturally and in all probability arise which could not then be foreseen, and that the administration of the law was one coming peculiarly within the province of scientific experts, the Legislature, out of necessity, wisely left to the members of the board the making of such rules as would promote the efficient administration of the law; and itself provided, in section 7083, a spur for the observance of the law. If the appellee is guilty in this case, and is punished under this affidavit, he will be punished by the will and by the command of the Legislature of Alabama, and not by the will or command of the Live Stock Sanitary Board, or any of its members, or of any other authority.

Whenever the validity of an act is challenged, upon the ground that it is unconstitutional, the objector assumes the burden of showing that it is an exercise of authority, not legislative in its nature, or that it is inconsistent with some other provision of the Constitution. In cases of doubtful construction, the doubt should be resolved in favor of the constitutionality of the act. Ingram v. State, 39 Ala. 247, 84 Am. Dec. 782; Dorman v. State, 34 Ala. 216; Whaley v. State, 168 Ala. 152, 52 So. 941, 30 L. R. A. (N. S.) 499.

By an act entitled an act "to prohibit the distillation of grain in the state of Alabama, except under the direction and authority of the Governor," approved December 8, 1862 (Acts 1862, p. 43), it was provided that "it shall not be lawful, during the existing war, to distill, or convert into spirituous or intoxicating liquor any grain, or the product of any grain, unless hereafter employed or authorized by the Governor to do so." Another section of the same act provided that it should be the duty of the Governor "under such rules and regulations as he may prescribe, to cause such an amount of grain to be distilled, or converted into alcohol or spirituous liquors, as in his judgment is consistent with the common defense and the general welfare." In the case of Ingram v. State, supra, the constitutionality of said act was attacked upon the same grounds now made the basis of the attack upon the act now under consideration; and in that case the Supreme Court said: "The objection that the act is invalid, because it transfers legislative power to the Governor, is not well taken. The Governor is simply the agent, appointed by the Legislature, to carry out the provisions of the law. He, it is true, is intrusted with a large discretion in the exercise of the powers conferred upon him; but we are unable to see upon what principle this feature of the law can be held to invalidate it." The excerpt, above quoted, from the decision of the Supreme Court in Ingram v. State, supra, is but a...

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