Davis v. The State

Davis v. The State. Indictment for Violation of Stock Law. 1. Constitutionality of statute •preventing stock from running at large in certain teats of Etowah county. — The Act approved December 7th, 1900, amending an aot “to prevent stock from running at large in several beats and parts of beats in Etowah county, approved February 8th, 1898,” (Acts, 1900-1901, p. 170), which provides that whenever ten freeholders or householders in any beat or part of beat in Etowah county, shall petition the probate judge of said county, asking for an election in said beat or part of beat, to decide whether stock should be prohibited from running at large therein, the probate judge shall order an election in such beat or part of beat to decide whether stock shall be prohibited from running at large in said beat or part of beat, is not unconstitutional and void asi being an unauthorized delegation of legislative authority, and is not subject to the objections that it does not define either the boundaries within which the stock law is to be operated, or the persons who are to determine by their votes whether or not the law shall go into effect. 2. Indictment for violation of stock law; sufficiency thereof. — In an indictment for the violation of a local law prohibiting stock from running at large within a designated territory, it is not necessary to aver the various proceedings required by said local act to be gone through in establishing the stock law in said district. 3. Same; same. — An indictment for the violation of a local statute providing for the establishment of a stock iaw district, and which confers jurisdiction upon a justice of the peace within said district for violation of said statute, is not subject to the objection that the offense was a misdemeanor, triable only by a justice of the peace, since the jurisdiction conferred upon a justice of the peace is not exclusive, and all misdemeanors are indictable offenses. 4. Statute establishing stock law district; courts take judicial knowledge thereof. — A local statute providing for the establishment of stock law districts in a particular county, which extends to all persons who may come within the territory described, though local, is public in 'its nature, and is a statute of which the courts take judicial knowledge. 5. Indictment for violation of local stock lato; admissibility of evidence. — On a trial under an indictment charging the violation of a stock law prohibiting the running at large of stock in certain designated districts, the minute entry of the commissioner’s court of the result of an election held under the* law providing for the establishment of the stock law district and adjudging the establishment of such stock law district, is admissible in evidence. Appeal from the City Court of. Gadsden. Tried before the Hon. John IT. Disque. The appellant in this case, Ben Davis, Avas indicted, tried and convicted for letting a hog rnn at large in a stock laiv district in the county of EtoAvah. The indictment as preferred contained tAvo counts. The defendant’s demurrer to the 1st count Avas sustained. The 2nd count of the indictment Avas in Avords and figures as folloAvs: “The grand jury of said county further charge that before the finding of this indictment, Ben Davis did Avilfully permit a hog OAvned by him to go upon the crop of Thomas Turner Avithin the folloAving described portion of Gadsden, beat number one, in said county, to-AArit: commencing at the southAvest corner section tAventy-nine, toAvnship eleven, range six, thence to the northAvest comer of southAvest fourth of south-Avest fourth, section twenty, toAvnship eleven, range six east; thence east to the northeast corner of the southeast fourth of the southeast fourth, said section twenty; thence south to the northeast corner section tvventy-nine, toAimship eleven, range six; thence east along northern boundary line of section twenty-eight, township eleven, range six, to Black Greek; thence down Black Creek to the northern boundary line of section thirty-two, toAmship eleven, range six; thence west Avith said boundary line to tbe beginning point in which it is and was unlawful for bogs to- run at large, against tbe peace and dignity of tbe state of Alabama.” Tbe defendant demurred to tbe 2nd count of tbe indictment upon tbe following grounds: “1st. Said indictment is based upon an unconstitutional law. 2nd. Tbe said indictment ¡failed to show whether tbe offense charged was committed before or after tbe 29th day of September, 1903. 3d. Tbe said indictment charges that defendant permitted a bog to go upon tbe crop of Tom burner, whereas tbe act approved September 29, 1903, only makes it indictable to permit stock to go upon tbe lands of another,, and tbe indictment fails to aver or show that tbe offense charged was committed before tbe 29th of September, 1903. 4th. Tbe said indictment fails to- charge that a majority of tbe votes cast as certified by tbe managers were in favor of prohibiting stock from running at large. 5th. Tbe said indictment fails to charge that tbe probate judge has entered on tbe minute books of tbe court of county commissioners as provided by law. 6th. Tbe statement in tbe indictment that it is and was unlawful' to permit stock to run at large in tbe portion of beat referred to is not supported by any averment of facts showing that it is unlawful. 7th. Tbe stock law relied on provides for misdemeanors of the nature charged to be triable only by a justice of tbe peace and not on indictment. 8th. Said indictment counts upon a local law of wbicb this court will not take judicial notice and fails to plead said local law.” This demurrer was overruled. On tbe trial of the case, tbe State introduced in evidence, against tbe objection and exception of the defendant, tbe minute entry in tbe minute books of tbe court of county commissioners of Etowah county, showing tbe establishment of tbe stock law district in the portion of tbe county described in the indictment. The other facts of the case are sufficiently stated in the opinion. Goodhue & Blackwood, for appellant. Our contention is that tbe Act approved Dec. 7, 1900 (Acts, 1900-01 page 170) is unconstitutional. The trouble with tbe Act is that it does not define either the boundaries within which the stock law is to be operative or the persons who' are to determine by their votes whether or not the law shall go into effect, but attempts to delegate to any ten or more free-holders or house-holders who may see fit to unite in a petition the power to determine the boundaries of the proposed stock district and the voters who shall participate in the election. It will be observed that the language of the Act is that -whenever ten freeholders or house-holders in any beat or part of beat in Etorvah county shall petition, etc. — . And again the Act provides that “the election shall be held to decide whether in said beat or part of beat described in said petition stock shall be prohibited from running at large,” and again it provides that at such election “the qualified Aroters of said beat or part of beat only shall be allOAved to vote.” Hand v. Stapleton, 135 Ala. 162; 6 Am. & Eng. Ency. of Law lOll; Thornton v. Territory, 17 Pac. Rep. 896; hítate r. Hayes, 61 N. IT. 341; Dowling ?■. Ixi-noa-shire Insurance Vo., 31 L. R. A. 112. Massey Wilson, Attorney-General for the State, cited Code, §4898; 10 Ency. PI. & Pr. 473; Carson v. State, 69 Ala. 235; Compton v. State, 95 Ala. 25, 27; Bocline v. State, 129 Ala. 106-111; Neioell v. State, 115 Ala. 54-60. [MAJORITY — HARALSON, J.] HARALSON, J. The indictment was found under the act of December 7th, 1900, (Acts, 1900-1, p. 170) amending an act, “To prevent stock from running at large in several beats and parts of beats in EtoAvah county, approved February 8th, 1898. — Acts, 1898-99, p. 683.” The indictment was demurred to on many grounds, the first of Avhicli Avas that it was based on an unconstitutional laAV. This contention proceeds on the alleged ground, as stated in the brief of counsel, that the act “does not confine either the boundaries within Avhich the stock 1uav is to be operated, or the persons Avho are to determine by their votes Avliether or not the law shall go into effect, but attempts to delegate to any ten or more freeholders who may see fit to write in a. petition, the power to determine tlie boundaries of the proposed stock district, and the voters who shall participate in the election.” The first section of the act provides, “That whenever ten freeholders or householders in .any beat or part of beat in Etowah county shall petition the probate judge of said county asking that an election be held in said beat or part of said beat to decide whether in said beat or part of said beat stock shall be prohibited from running at large, the probate judge shall order an election in such beat or part of beat described in said petition and at a place to be designated in said petition, and shall notify the public that an election will be held at said voting, not less that twenty nor more than thirty days from the publication, specifying the day of election, to decide whether in said beat or part of beat described in said petition, stock shall be prohibited .from running at large,” etc. The criticism of tire act is not well made. The act does provide, not that “ten freeholders or householders shall have the power to- determine the boundaries of the proposed stock distinct;” but it simply bestows on them the right to- petition for an election to- be held in the beat or part thereof designated in the petition, at which the qualified voters of the beat or part of the beat designated shall be allowed to vote. So the ■ petitioners have no right to determine the boundaries of the district, since the qualified voters may approve or defeat the recommendation of the petitioners, and they are the ones who, at last, determine the boundaries of the district. If competent for the legislature to authorize, in this manner, the establishment of a stock district, it was just as competent for it to- authorize a part of the beat to do- so. The legislature in this act did authorize the establishment of such districts, dependent upon the condition of the people voting to have them, and when the condition named had been fulfilled, and the district is thereby established, it cannot be said that there was not legislative authority behind it. The act does not delegate legislative powers, but it is legislation, to take effect upon a. valid condition. Tlie Legislature may pass a valid statute, to take effect upon tlie happening of a future event, and the statute will not, on this account, he held to be unconstitutional. — Hand v. Stapleton, 135 Ala. 162. Many similar acts have been, from time to time, passed by the legislature, and its competency to create such laws, has been frequently questioned. It has, however, been uniformly held that such acts are not unauthorized delegation of legislative authority to the commissioners courts, nor otherwise objectionable on constitutional grounds. — McGraw v. Court of County Revenue, 89 Ala. 407; Edmondson v. Ledbetter, 134 Ala. 479. The act is not subject to the other objection raised to it that it does not define the persons who are to determine by their votes Avliether or not the law shall go into effect, but attempts to delegate to any ten or more freeholders or householders the power to determine the voters who shall participate in the election. The act leaves it to a decision of a majority of the “qualified voters of said beat or paid of said beat.” There is nothing in the 2nd or 3rd grounds of demurrer. ' The indictment, as stated, is under said amended act of 1900-1, and the act of Sept. 29th, 1903, has no application to this case. The 4th, 5th and 6th grounds, set up in substance that it Avas necessary to aver the various proceedings required by the act to be gone through Avith in establishing said district. This Avas unnecessary. It is not required that an indictment shall set up the proof in the case, but merely to charge the commission of the offense in the language of the statute Avhich is here done. The 7th ground Avas bad. The statute gives jurisdiction to the justice of the peace, but it does not malee that jurisdiction exclusive. All misdemeanors are indictable offenses. — Code, §4891. The 8th ground Avas also Avitliout merit. The court takes judicial notice of such laAvs. The statute though local in its nature, extends to all persons Avho may come Avitliin the territory described, and is a statute of Avhich the courts take judicial knoAvledge.- — Carson v. State, 69 Ala. 236; Compton v. State, 95 Ala. 27. The minute entry of the result of the election and the establishment of the district, was introduced in evidence. The defendant objected to its introduction because it showed on its face that there was a contest filed as to said election, and fails to show the verdict of a jury determining said contest] and that said minnte entry fails tO' show that proceedings were had in accordance with the statute on the contest filed, and the probate judge had no. authority after contest filed to1 enter the order on the minute book declaring it unlawful to permit stock to run at large within the territory without first having determined the contest. The bill of exceptions shows that on the 24th of April, 1902, a contest of said election was filed, and May 1st, 1902, was set to hear said contest, and the samé was duly heard upon the issue as stated in the petition for contest, and upon the hearing of the same, the court dismissed the proceedings, in favor of the contestees. It does not appear upon what ground the court dismissed the proceedings for a contest. Neither the petition nor any of the proceedings therefor are shown. In the absence of such showing we will presume that the contest was dismissed on some proper ground. — Bodine v. State, 129 Ala. 106; Newell v. State, 115 Ala. 54, 60. Affirmed.