Smith v. Inge

SOMERVILLE, J. It is not contended that John It. Simp-, son, who was shown to sue in his official capacity as superintendent of wharves, was an improper plaintiff in the action, as originally instituted. The objection taken is to the ruling of the court by which his successor in office, George B. Clitherall, was allowed to be substituted as one of the plaintiffs of record, upon suggestion and proof that Simpson’s official term had expired. This amendment, in our opinion, was entirely free from objection. Where the subject-matter of suit is assigned by operation of law, during the pendency of an action, the assignee of the title is always a necessary party, and may be substituted as a party on motion properly brought to the attention of the court. Common examples of this sort are found in cases of death, marriage, bankruptcy, and the like. The rule is the same, where the plaintiff sues in his official character, ánd his term expires by limitation of law. In such case, it is the officer that sues, and not the mere man who fills the office. Assignments of this kind, being made by law, are involuntary, and are distinguishable from those made by the voluntary act of the parties pendente lite. The latter do not become necessary parties, while the former do. — Barbour on Parties, 361; [286] Morton v. New Orleans & Selma R. R. Co., at the present term. It is contended, however, that the acts of February 11,1879, and of December 8, 1880, — including the whole system of legislation abolishing the charter and dissolving the municipal corporation of Mobile — -are enactments which are void for repugnancy to the Constitution, because they impair the obligations of existing contracts, by destroying all remedies of creditors of the city for the enforcement of their demands. It is manifest, that this objection can be raised only by some actual creditor whose rights are claimed to be invaded. The defendants in this case are not. shown to be creditors, and as to them the enactments in question are entirely free from constitutional objections. — ! Dillon Munic. Corp. (3d Ed.) §§ 63-64; Merriwether v. Garrett, 102 U. S. 472, 511; Acts 1880-81, p. 329; Acts 1878-79, p. 381. Courts do not lend ear to objections urged against the constitutionality of statutes by parties whose rights are not affected, and who, therefore, possess no interest in having the court to pronounce upon the question.' — Cooley’s Const. lam. (5th Ed.) 197 (*164). Admitting the soundness of the suggestion, that the plaintiffs, being officers of the Chancery Court, had no authority to commence the action without previously obtaining the sanction of that court, it may be doubted whether the want of such sanction he an objection which the defendant could set up as a defense to the maintenance of the action.— 1 Dan. Chan. Prac. (5th Ed.) *311, and note 5. However this may be, it is quite clear that the objection is one which can not be raised for the first time in this court. We perceive no error in the rulings of the court refusing to admit in evidence the ordinances of the mayor and aldermen of Mobile, and of the maps of the city prepared under their authority. These were acts of the old municipality transpiring before its charter was vacated and its corporate existence dissolved, and before the creation of the existing corporation now known as the “port of Mobile,” all of which legislation of the General Assembly was accomplished on February 11,1879. Acts 1878-79, pp. 381, 392. These municipal ordinances relate to Front street in said city, and declare what shall be its dimensions and locality; and one or more of them authorize certain maps to be prepared by the city engineer, which are offered in evidence to show that the premises in controversy were a part of Front street as thus purporting to be dedicated to public use. If the city had at the time owned these premises, there might possibly be no tenable objection to this evidence. But such was not the case. The property was then owned by private persons, and the city had no lawful right to [287] dedicate the property of a private citizen to public use, by a mere ordinance so declaring, without the owner’s acquiescence or consent. The State itself, which is greater than its creature, in the exercise of its right of eminent domain, could not constitutionally condemn private property to such uses, without a regular judgment of condemnation, in a proper judicial proceeding, first making payment of just compensation to the owner. Such is now, and has always been the express or implied requirement of our Constitution. — New Orleans & Selma, R. R. Co. v. Jones, 68 Ala. 48. The binding force of this principle is recognized in the various charters of the city, from its first incorporation down to the day of the repeal of its charter in 1879 ; and there is no evidence in the record purporting to show that there was ever any attempt to condemn this property. It is very clear that there was never any such conduct on the part of the owner, or uninterrupted user by the public, as to authorize the presumption of a dedication. In Steele v. Sullivan, 70 Ala. 589, we held that the dedication of a street, in an incorporated city or town, would not be presumed from mere user, unaccompanied by some clear and unequivocal act showing the owner’s intention, for any period short of twenty years; and even this presumption may be rebutted, by showing that the right of user was always contested, or constantly interrupted by the owner. This principle is obviously fatal to any claim based on the presumption of any alleged dedication. — Hoole v. Attorney-General, 22 Ala. 190; N. O. & S. Railroad Co. v. Jones, 68 Ala. 48. A dedication must be first made by the owner, before any acceptance of it can follow on the part of corporate officers of a city. An acceptance without an offer, either express or implied, is nugatory. The other assignments of error are not, in our opinion, well taken, and the judgment of the Circuit Court is affirmed.