Randle v. Payne

¶1(dissenting).

¶2At the outset, we must remember that maxims, such as expressio (or enumeratio) unius est exclusio alterius and construction in pari materia, are but rules to aid in ambiguous cases. The paramount rule is that of ascertaining legislative intent, and while expressions of this principle sound trite, yet perhaps this is because they are familiar rather than because they are shopworn. Glencoe Paving Co. v. Graves, 266 Ala. 154, 94 So.2d 872. See Sutherland, Statutory Construction, § 4502 — “Statutes clear and unambiguous.”

¶3Act No. 53, entitled “An Act To make it unlawful for livestock or animals to go at large in any county in the State, and repealing conflicting laws,” approved May 30, 1951, effective one year later, begins:

“There shall be no ‘open range counties’ … ”

¶4■ — a clear abolition of the local option as to open or closed range formerly available.

¶5But the act does more:

“ … it shall be unlawful for horses … bulls … to go at large in any county in the State.” (Italics added.)

¶6Section 2 repeals (1) Code 1940, T. 3, §§ 90, 91, 92, and 93, and (2) "all other laws or parts of lazvs in conflict.” (Italics added.)

¶7What effect does this law have with respect to Code 1940, T. 3, §§ 78 and 79 ? Section 78 provides in part:

“ … it shall be unlawful for the owner of any livestock … as hereinafter defined,1 to knowingly, voluntarily, negligently, or wilfully permit any such livestock … to go at large in the State of Alabama … upon the public … highways …. Nothing in this section or elsewhere in this article [§§ 77-99] shall be construed … to subject the owner … to criminal prosecution therefor.”

¶8Continuing thereafter and conferring a lien on depredating animals, § 79 goes on:

“Provided, however, that the owner … shall not be liable for any damages to any motor vehicle [in a collision case] unless it be proven that such owner knozvingly or wilfully put … such stock upon such public highway … (Italics added.)

¶9It would seem clear that §§ 78 and 79, supra, in automobile-livestock collision cases,

*658a) confer a civil remedy only;

b) limit this remedy to cases where the “owner knowingly or wilfully put” the stock on the right of way.

¶10Here, in Act No. 53, supra, we have a new statute making it “unlawful” for stock to go at large, i. e., unattended, by design or neglect of the owner, Dalton v. Dean, 175 Tenn. 620, 136 S.W.2d 721, Leavenworth, T. & S. W. Ry. Co. v. Forbes, 37 Kan. 445, 15 P. 595, Elliott v. Kitchens, 111 Ala. 546, 20 So. 366, 33 L.R.A. 364, 56 Am.St.Rep. 69.

¶11“Unlawful” means, ordinarily, without legal excuse or justification. Williams v. State, 27 Ala.App. 504, 175 So. 335; see also Tatum v. State, 66 Ala. 465.

¶12We do not need to decide whether “unlawful” imports a crime—Yung v. State, 158 Ala. 38, 48 So. 490.

¶13Our sole problem insofar as the operation of Act No. 53 is concerned is whether or not it impliedly includes the proviso of § 79 — to make it necessary to prove “knowledge” or “wilfulness” in addition to rtnlawfulness.

¶14To my mind, this would be analogous to saying that in all cases of involuntary manslaughter the State must prove the elements of voluntary manslaughter.

¶15Act No. 53 in nowise expressly mentions §§ 78 and 79. While, true enough, it does not repeal those sections, nevertheless the new statute is clearly a self-contained and cohesive unit of legislation removing all permissive exceptions to the common law doctrine. Its title is not confined merely to the abolition of open range counties.

¶16Whether or not §§ 78 and 79 are repealed as being in conflict, we need not decide, because (1) Act No. 53, being the later enactment, takes precedence, and (2) the civil remedy conferred is cumulative by any reasonable analysis of its substantive content, i. e., it confers an action for negligence.

¶17Before 1952, the owner of a damage feasant animal on the highway was liable only in what was essentially a trespass to goods or person.

¶18To say that the proviso of § 79 must still control is to ascribe nothingness to the word “unlawful” as used in Act No. 53, because such a construction would be to leave the pre-1952 civil remedy unchanged.

¶19We cannot presume the Legislature to use words signifying nothing, Standard Oil Co. of Kentucky v. State, 218 Ala. 243, 118 So. 281.

¶20Rather, a new right, i. e., an action of trespass on the case, was created; and, if there is any inconsistency, the later enactment prevails, State, ex rel. Garrett v. Sawyer, 139 Ala. 138, 36 So. 545. Though I see no reason why two remedies cannot be available for different sets of facts.

¶21The distinction between trespass and case2 exists both as to right and remedy: Section 13 of the Constitution requires (as does the Statute of Westminster II 3) that a right shall not fail for want of a remedy.

¶22Moreover, it is clear that the Legislature wanted more than a mere establishment of the common law as to trespass by cattle. This Act was designed to repeal the doctrine of the statutes and decisional law illustrated by Pelham v. Spears, 222 Ala. 365, 132 So. 886. For a collection of decisions, see Annotation 59 A.L.R.2d 1328. “Going at large” is what is made unlawful; the statute ignores the old pre-automobile “propensity of the animal” principle. The *659duty is now not to'allow the named beasts “to go at large.”

¶23I respectfully dissent because it seems to me that the Legislature intended to make a clean sweep of the theretofore Sisyphean labor of attempting to fasten legal liability upon the negligent owner of a damage feasant animal loose upon a highway.