Crowder v. Fletcher & Co. , 80 Ala. 219 ( 1885 )

STONE, C. J.

In a note to Sedgwick on Statutory and Constitutional Construction, 2d Ed., commencing on page 267, we find the following language, which we consider sound and sensible: “With all the gross imperfection of the common law, it did contain certain grand principles, and these principles had been worked out into many practical rules both of primary right and of procedure, which protected personal rights — rights of property, of life, of liberty, of body and limb — against the encroachment both of government and of private individuals. This was the great glory of the common law. Any statutes which should take away, change, or diminish these rights, should be strictly construed.” This rule of construction is necessary, because such statutes “oppose the overwhelming-power of the government to the public power of resistance of the individual, and it is the duty of courts-under such circumstances to guard the individual as far as is just and legal.” In the same note it had been previously said, “ statutory remedies, especially when the right to be enforced was unknown to the common law, are to be followed with strictness both as to the methods to be pursued, and the cases to which they are applied.” 2 Brick. Dig. 464, §§ 1, 2. Such remedies must be sustained by the allegations and recitals of the record, and can not be aided by intendment.” Ih.

The present controversy grew out of a claim for salvage, expenses and costs, under Chapter 3, Title 7, Part 2 of the Code of 1876, commencing with § 2863 of that Code. The claim rests entirely on statutory provision; for, without it,the claimant would have no standing whatever in court. Nicholson v. Chapman, N. H. Blackstone 254; Etter v. Edwards, 4 Watts 63. The proceedings arc summary, and, in their main features, ex parte. The statute contemplates a deliverance from peril of another’s goods found adrift, and compensation, called salvage, for the labor and care bestowed, in effecting the rescue. Certain steps are required to be taken by the captor: lie must, within a given time after the same is taken up, “exhibit the property to a justice.” This is the first step, and one object attained by it, is the rendering more difficult a fraudulent or collusive taking up of another’s property. Justices are officers of the law, are commissioned and sworn, and the presumption is, they will hold the scales of justice without prejudice or-par-ti alty. Inspecting the property, if its value does not exceed thirty dollars, the justice must himself make the appraisement and description. If, in his opinion, it is worth more than thirty dollars, he must issue an order of appraisement to three disinterested freeholders, or householders, who, after being duly sworn to estimate the value of such property fairly, must appraise and certify the same to the justice of the peace, with a description of the property. § 2864. All these steps, the statute contemplates, are ex parte, and take place when no one is present to represent the owner of property. And being taken, the taker up has a right to retain the property in his possession, until the owner proves his ownership to the satisfaction of the justice, and obtains from him an order to restore such property on the payment of the legal costs and charges thereon. § 2869. The rate of compensation to-the captor is per centum on the appraised value of the property, graduated by the amount from 25 per cent, of the value down to 5 per cent. § 2870. The captor is also entitled to the justice’s fees paid by him, the expenses of the advertisement, if published in a newspaper, and reasonable compensation for the keeping, if necessary to preserve the property from loss or injury, and to two dollars each to the appraisers, other than the justice. §§ 2871, 2872. The result of these proceedings, if properly conformed to, is to fasten a charge by no means light, on the owner and his property, in the determination of which he has not been heard, and generally without his knowledge.

The transcript before us contains a copy of all the proceedings, or quasi records, which the justice and the appraisers reduced to writing. It contains all the papers pertaining to the proceeding, except a notice served on the justice by the claimants of the timber, offering to pay a sum admitted to be due, and demanding from him that he issue an order on the taker up, to restore the property to the owner, in accordauce with the provisions of § 2869 of the Code. This notice and demand can neither validate nor invalidate the prior proceedings.

The present being a statutory and summary proceeding, in palpable derogation of the rights and remedies provided by the common law, the rule must be applied that everything necessary to confer jurisdiction must be expressed, and nothing will be intended to have been done, which is not affirmatively shown to have been done. Nor is vague and doubtful implication enough. Certainty — reasonable certainty as fact— must appear.

The first essential fact was and is that the property alleged to have been captured when adrift, was exhibited to the justice. That is — the property must be carried to the justice, or the justice must visit the property. The second essential fact is, that the justice must determine whether in his opinion the property is worth more than thirty dollars. These being indispensable precedent facts, before any authority is acquired to issue an order for appraisement, they are too vital to rest in mere memory or implication. A note or minute — a quasi record — ’Should be made of them. They are the necessary conditions which justify the order to the appraisers, and the written order to the appraisers shows who are the persons selected for the service, and this, too, is part of the quasi record, which goes to make up and legalize this statutory, and highly summary proceeding. The present proceeding was and is wanting in each.of these essentials, and it follows that- no legal authority was acquired to appraise the property, or to fasten a charge upon it in favor of the captor.

The statute we have been construing makes no provision for an appeal, or for reviewing action had under its provisions. Certiorari is the proper remedy. 1 Brick. Dig. 332-3, §§ 1, 2, 4; Molett v. Keenan, 22 Ala. 484; Benton v. Taylor, 46 Ala. 388; Ex Parte Buckley, 53 Ala. 42; Glaze v. Blake, 56 Ala. 379; City Council v. Belser, 53 Ala. 379; Ex parte Madison Turnpike Co., 62 Ala. 93; 2 Wait Ac. & Def. 134, §§ 1, 8, 5, 8.

It is contended for appellant that after the appraisement had been made, the owners of the property came in, and appealed to an arbitration, and there litigated the questions — thus, as it is claimed, legalizing the proceedings, if otherwise irregular. We can not assent to this. The proceedings being purely statutory, and a radical departure from common law methods, no after conduct can validate the proceeding, which, as we have shown, is wanting in the first elements of regularity. Neither the justice nor the appraisers had any general jurisdiction of the subject, and we have shown above that jurisdiction was never acquired under the statute. What we decide is, that under the proceedings shown in this transcript, there is no judicial determination, nor quasi judicial determination, nor legal ascertainment, as matter of law and fact, that Crowder, the captor, is entitled to hold the timber, until the claims asserted are paid. If he acquired any rights under the arbitration — as to which we decide nothing — they can not be maintained in this proceeding'. It would seem, however, that no such acquired rights, if they exist, could operate a lien on the timber. Nicholson v. Chapman, supra.

As we understand the statute we are construing, the percentage allowed the captor under § 2870 of the Code, is all he can claim for rescuing the property, and placing it in a place of safety. If after this he reasonably and rightfully incurs expense in keeping and preserving the property from loss or injury, he is entitled to compensation, “to be ascertained as in case of estrays.” § 2871. This has no reference, however, to labor or expense in rescuing the property from peril in the first instance. The percentage covers that, and was in no sense intended as a sine cure bounty to the taker up.

Affirmed.