Whaley v. State

CourtSupreme Court of Alabama
Citation52 So. 941,168 Ala. 152
Decision Date16 December 1909

52 So. 941

168 Ala. 152


Supreme Court of Alabama

December 16, 1909

Rehearing Denied June 30, 1910.

Appeal from Criminal Court, Jefferson County; S. L. Weaver, Judge.

R. E. Whaley was convicted of an offense, and he appeals. Affirmed.

Mayfield, Sayre, and Evans, JJ., dissenting.

Gaston & Pettus, for appellant.

Alexander M. Garber, Atty. Gen., and Tillman, Bradley & Morrow, for the State.


It first appeared to this court, that the act in question (Sp. Sess. Laws 1907, p. 89) was violative of the Constitution because it delegated to officials of street railroad companies, not only the right to legislate, but to, in effect, suspend the law by a suspension or abolition of the rules. The question is still a close one, but all doubts should be resolved in favor of the constitutionality of a law, and it should be upheld when it is capable of being construed so as to harmonize with the Constitution without doing violence to the legislative intent. The right to make reasonable rules by street car companies, through its officers and servants, exists independent of the act, and the authority thereby given is not the delegation of authority to legislate, but merely reiterates the right of the officers to make reasonable rules in and about the conducting of the business of the public service utility, and, in addition thereto, prohibits under penalty, a violation of said rules. This statute makes it unlawful to fraudulently or willfully violate said rules. A party cannot be guilty of violating this law unless he violates the rules fraudulently or willfully and knowingly. The rules must be reasonable, and must be known to him at the time of the violation of same. The fact that the rules may be changed or suspended is no delegation of authority to make, change, or suspend the law, but merely relates to the subject upon which the law operates. The law is made by the Legislature, and cannot be repealed or suspended except by said body, and the fact that the rules may be changed or suspended in no wise changes or suspends the law. It is on the statute books, and there it remains until repealed or amended by the Legislature, and the abolition or suspension of the rules only removes the subject for the time being, upon which the law operates. Whether the rules are made or not, or are repealed or suspended after being made, we still have the law remaining in force, and ready to apply to the subject whenever it comes into existence. There might be but one street car company in the state, and it might suspend operation, and there would therefore be no subject upon which the law would presently operate, but this fact would not repeal or suspend the law itself, for later we might have many street car companies, or the existing one might resume operation, and as soon as any of them formulated reasonable rules there would be a subject upon which this existing law can operate, notwithstanding it was not in being when the law was enacted or may have not existed at all times after the passage of same.

The act in question being valid, and there being no reversible error disclosed by the record, the judgment of the criminal court is affirmed.


DOWDELL, C.J., and SIMPSON and McCLELLAN, JJ., concur.

SAYRE, J. (dissenting).

I do not doubt that the Legislature may in the proper exercise of the police power regulate every business in the state. Nor do I doubt that the Legislature may confer upon railroad companies, or individuals operating railroads, the power to provide proper regulations for the protection of their property, the property of those with whom they deal, and for the enforcement of their mutual rights. Indeed, they have that right without express legislative grant, and there are circumstances in which a failure to adopt a proper system of rules and regulations would amount to a [52 So. 942] dereliction of duty. But it has never been supposed, so far as I am informed, that rules adopted in pursuance of this general power amounted to more than rules of prudence binding only upon those who have notice of them. Here, the proposition is to punish criminally persons who may violate the rules a certain class of private business corporations may see fit to adopt from time to time, and commits the power also to their managing agents. It seems obvious to me that no peculiar merit to save the statute is to be found in the fact that the enterprises concerned are railways, or that the agents upon whom the power is conferred are managing agents. If the act is to be sustained as a valid exercise of legislative power, a similar power may be conferred on any corporation or person doing business in this state, and may as well have been conferred upon a motorman or conductor. But I do not agree that any private corporation or person can have the power to define the elements of a criminal act. The citizen can be required to look only to the common law, to legislative enactments, or to the ordinances and rules of a certain class of public corporations, and perhaps to some public officers acting under responsibility as the representatives of the people, to which quasi legislative powers are delegated for limited and most generally local purposes, to know what acts of his may be punished under the criminal laws of the state. Mr. Cooley thus speaks of the doctrine: "It has already been seen that the Legislature cannot delegate its power to make laws; but, fundamental as this maxim is, it is so qualified by the customs of our race, and by other maxims which regard local government, that the right of the Legislature, in the entire absence of authorization or prohibition, to create towns and other inferior municipal organizations, and to confer upon them the powers of local government, and especially of local taxation and public regulations usual with such corporations, would always pass unchallenged." Cons. Lim. 264. In Dunn v. Court of County Revenues, 85 Ala. 144, 4 So. 661, speaking of a stock law, it was said: "These laws are complete within themselves, providing, as they do, in detail, for regulating the running of stock at large, and the enforcement of the rights of all parties to be affected by them in the particular locality to which they are made applicable. None of their terms or provisions are made to rest in the legislative discretion of the county authorities. As to this feature, the General Assembly had not abdicated any of that constitutional and prerogative power, which is peculiarly its own. The only power conferred or delegated is to determine the contingency on which the laws, or certain designated portions of them, may go into effect. It is no objection to a statute that it is conditional, or that its taking effect is to depend upon some specified subsequent event. Amrmative legislation, in some cases, may be adopted of which the parties interested are at liberty to avail themselves or not at their option"--citing Cooley Cons. Lim. 117. In Brodbine v. Inhabitants of Revere, 182 Mass. 598, 66 N.E. 607, it was held that a statute giving the board of metropolitan park commissioners authority to "make rules and regulations for the government and use of the roadways or boulevards under its care, breaches whereof shall be breaches of the peace, punishable as such in any court having jurisdiction of the same" was constitutional. But observe the reasoning upon which that decision was placed. After noting that there is a well-known exception to the rule which forbids the delegation of the power to make laws, resting upon conditions which existed from ancient times in most of the older states of the Union, which the Constitutions of those states generally recognize, namely, the existence of towns or other local governmental organizations which had always been accustomed to exercise self-government in regard to local police regulations and other matters affecting peculiarly the interest of their own inhabitants, and that on this account the determination of matters of this character had been held to be a proper exercise of local self-government which the Legislature might commit to a city or town, the court expressed itself as follows: "How far this principle may be extended in the proper application of it is a subject on which there is much difference of opinion among judges. Whether it will justify the creation of a tribunal other than the voters or their usual representatives, where they have a representative government for the management of municipal affairs, seems not to have been much considered by the courts. It is very clear, where the people of a city or town have become so numerous that the management of their municipal affairs can be conducted conveniently only by a representative body like a city council, that municipal legislation, such as making ordinances and regulations as to local matters affecting the health, safety, and convenience of the people, may be intrusted to the people's chosen representatives in a city government. * * * In this commonwealth legislation has gone further than this. Apparently on grounds of expediency amounting almost to necessity, the making of rules and regulations for the preservation of the public health has been intrusted to boards of health * * * and a violation of the rules established by city or town boards has long been and is now punishable in the courts." And it was said that those statutes were to be justified upon one or both of two grounds: The board of health was treated as properly representing the people in making regulations; the work of the board of health was treated as only a determination of details in the nature of administration. In my judgment the concurrence of both grounds is necessary to support legislation [52 So. 943] of that character. And penal rules made by boards of harbor and land commissioners were said to be sustained upon these grounds. On these principles, also, was based the...

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