Joiner v. Winston , 68 Ala. 129 ( 1880 )

BRICKELL, C. J.

By the common law,, every man was bound to keep his cattle within his own close, and to prevent them from escaping or straying upon the premises of his neighbor. If they did escape, going without permission' upon the lands of another, the owner was liable in trespass-for the resulting damages. . This rule of the common law is not of force in this State, being inconsistent with the general statutes in reference to estrays, inelosures and trespasses by cattle, which, in effect, treat lands uninclosed as common pasture, and require the owner or occupier of lands, seeking protection from trespasses by cattle running at large, to-inclose against them.—N. & C. R. R. Co. v. Peacock, 25 Ala. 229; Smith v. Causey, 22 Ala. 568; Tankersley v. Wedgworth, 1b. 677; Woodward v. Purdy, 20 Ala. 379.

The plain purpose of the special statute, on which this action is founded, entitled “An act in relation to fences, the protection of crops and other property, in Sumter and Pick-ens counties,” approved February 19, 1867 (Pamph. Acts, 1866-7, p. 586), was the adoption and establishment of the rule of the common law, in the counties named, or such parts thereof as were designated by the Commissioners Court. By the terms of the statute, whenever any particular part of' tlie county was designated and subjected to the operation of the statute, the boundaries thereof, whether marked by monuments, or surrounded by inelosures, or not, became at once, by operation of law, a lawful fence. Whoever permitted his cattle to go at large, off his premises, if they escaped or •strayed on the premises of another, within the designated part or district, became liable for all damages done by them. The residence of the owner or manager of the cattle, within the designated district, is not an element of the liability. The liability arises, because he has suffered his cattle to go •at large, and they have passed within the district, the boundaries of which constitute a lawful fence, doing damage to the lands of another. The statute would but ill accomplish its •purposes, if it protected the owner or occupier of lands from the trespasses only of cattle owned by those residing within the district, requiring him to fence against, or submit to the trespasses, of the cattle of owners residing in adjoining districts. The designated district would be converted into common pasture for all, except those residing within it. The first ground of demurrer to the complaint was not well taken, and was properly overruled.

The terms and conditions upon which the special act was to become operative in any part or district of the county, ‘are expressed in the fourth section of the act, which reads: “That the Court of County Commissioners of said county may declare this act to be in force in said counties, or any select portion thereof, whenever said court is satisfied that a majority of the land-owners in said counties, or in any district in said counties, are desirous of availing themselves of the provisions of this act; but the provisions of this act shall not apply to any portion of said counties, where it is not so declared to apply by said court,” The only evidence that the Court of County Commissioners had declared “Lacey’s Beat,” the place of the trespass, to be subject to the act, was the minute-entry on the records of the court, in these words : '“November term, 1869. Ordered by the court that the ‘Fence Law’ is declared in foree in the Sumterville, Paynesville, ••Gainesville, Jones’ Bluff, and Lacey’s Beats, and that new elections be held in Livingston, Brownsville, and Belmont Beats.”

The Court of County Commissioners is clothed with judicial ’and guiasi-Iegislative power, by the general statutes relating to it. Whether it is in the exercise of the one or the other power, when it affects the rights of individuals, it is esteemed as an inferior tribunal, of statutory and limited jurisdiction ; and to the validity of its acts or sentences, it is necessary that its records show affirmatively the facts upon which its authority depends.—1 Brick. Dig. 441, §§ 203, 206; Henry v. Cohen, at the present term. If, before exercising authority or jurisdiction, the court must first ascertain the existence of a particular fact, or of particular facts, its records must show that, before proceeding to act, the facts were ascertained. The ascertainment is not presumed, or inferred, from the exercise of the jurisdiction or authority.—Gunn v. Howell, 27 Ala. 663; Foster v. Glazener, Ib. 390; Owen v. Jordan, Ib. 608; Wyatt v. Rambo, 29 Ala. 510.

In the enactment of the special statute now under consideration, the law-making power was subjecting particular localities to a policy, and to rules of law, inconsistent with the policy and law prevailing generally within the State. Whether a locality should be subjected to the enactment was committed to the determination of the land-owners within it, their rights and interests being peculiarly affected and involved. The Commissioners Court was charged with the duty of ascertaining their sense and determination. The mode of ascertaining is not prescribed, and it is competent for the court to adopt any mode adapted to the end — an election to be held by its authority, or any other appropriate mode. Until their determination is made known in some appropriate form, the law cannot become of force. The Commissioners Courtis without power to put it in force, until the fact is ascertained that a majority of them are desirous of availing themselves of its provisions. It is only when this fact is ascertained, that the court may declare the act of force. The fact not being ascertained, in the words of the act, its provisions “shall not apply.”

The record of the Commissioners Court does not show that a majority of the land-owners in “Lacey’s Beat” were desirous that the act should be of force in that district] nor does it show that the court' had ascertained such was their determination. Of its own volition, the court declared the act of force within that district. The act does not confer that power on the court, and the declaration of the court is a mere nullity. Prom the fact that the court ordered new elections in other beats or districts of the county, it may be argued, or inferred, that elections had been held in the beats in which the act was put in force. But the jurisdiction of inferior tribunals of statutory and limited powers cannot be supported by mere argument or inference from the recitals of their records.—McCravey v. Remson, 19 Ala. 430. The Circuit Court erred in sustaining the demurrer to appellant’s special plea.

This conclusion renders it unnecessary and improper to consider the objections made to the constitutionality of the special statute. Upon such questions courts do not enter when the case before them can be determined upon other grounds.—Smith v. Speed, 50 Ala. 276; Cooley’s Const. Limitations, 163.

.Beversed and remanded.