Mosely v. Tuthill. this sale was applied for and granted, was in the following words — that is to say: "§ 1754. Lands may be sold by the executor or administrator with the will annexed, for the payment of debts, in the following cases: "1. When the will gives no power to sell the same for that pur pose, and the personal estate is insufficient therefor. "2. When a sale of the lands is more beneficial than a sale of slaves, and is not in conflict with the provisions of the will." Code of Ala., § 1754; Rev. Code, § 2079. Here are two grounds upon which the court may proceed to grant an order to sell the lands of a decedent in this State, for the payment of debts, and only two. These are set forth by number, by the legislative authority. Such an enumeration excludes all other grounds. And these grounds, being each separately and distinctly stated, cannot be combined. Either the one or the other must exist, else the court has no authority to act. The legislative intention to this effect is most clearly shown both by the language used to declare the jurisdictional facts, and their mode of statement. No other grounds save those mentioned in the statute need be set out in the petition for the order to sell. Such additional grounds are mere surplusage, and neither aid or vitiate the proceeding. Utile per inutile non vitiatur. 7 Bouv. Bac. Abr. 460; 1 Pet. 18; 1 Ala. 326; 2 Saund. 306, n. And both grounds might be alleged in the same petition, but one at least should be proven before the order to sell should be granted. And either would be sufficient, but not parts of both combined, because this would make a third ground not specified in the Code. Construction which sanctions such practice makes the law rather than declares what it is. This is usurpation, and goes beyond the duty and power of the court. Judicis est jus dicere non dare. Lofft. 42. When a will is once lawfully established and admitted to probate in this State, it is required of all the courts, so far as they deal with it, to see that it is duly carried into effect; that the intention of the testator is executed, and not defeated. The will is the law when its provisions can be carried into operation, unless it conflicts with law. And it is only to be disregarded so far as such conflict exists. In this case the will gives no power to sell the testator's lands for the payment of her debts. But it directs a sale of a portion of the lands for re-investment for a particular purpose. Then, as the Mosely v. Tuthill. whole property of the decedent is charged with the payment of her debts, with certain exceptions which need not be here noticed, it might have been sold under the first clause of the section of the Code above quoted. Code of Ala., §§ 1737, 1738; id., § 1754, cl. 1. But the petition was not based on this clause of the section; that is, that " a sale of the lands is more beneficial than a sale of slaves, and is not in conflict with the provisions of the will." Under this specification, two facts must concur to authorize the grant of the order for the sale: the beneficial character of the sale, and the nonconflict with the provisions of the will. Here the petition alleges the necessary jurisdictional facts, in order to justify the court to undertake the inquiry proposed to be made. The court, then, had rightful jurisdiction of the subject-matter, so far as this can be given by the mere allegations of the petition. Satcher v. Satcher, 41 Ala. 39; Mattheson v. Hearin, 29 id. 210. But the will itself is necessarily a limit upon the jurisdiction of the court. The statute so makes it. The duty of the court is to carry the provisions of the will into execution, and to see that the estate of the testator is disposed of as he directs in his testament. To do this, the court must look to the will as its guide. If the provisions of the will contradict the allegations of the petition, the jurisdiction of the court is suspended. It is forbidden to proceed, because the will is in the way. This the court must know, because the court is as much bound by the directions of the will as the administrator himself. The court, in dealing with the estate, necessarily does so under the limitations of the will. In such a case, then, the will must be regarded as a part of the petition for the order to sell, because the petition is founded upon the dispositions made in the testament itself. Here the court had jurisdiction, but only upon a certain statement of facts. When the testamentary paper is looked to, it shows that these facts did not exist in connection with the facts alleged in the petition. The sale was, then, forbidden and unlawful. Such a sale is void when made under the order of an "inferior court." Mathewson v. Sprague, 1 Ct. 457; Ex parte Watkins, 3 Pet. 193. If this construction is not to be adhered to, then the court of probate may utterly defeat the testator's disposition of his property, not by a mere irregularity in the proceeding, but by a disregard of the will and the law of its execution. This could not have been the legislative intent. Mosely v. Tuthill. Again, the law in force at the date of this sale required that "the executor or administrator must, within sixty days after such sale, report on oath his proceedings to the court, who must examine the same (the proceedings), and may also examine witnesses in relation thereto;" and, on such examination, such sale might be vacated in whole or in part. Code of Ala., §§ 1765, 1766. This legislative direction must have some force, else it may be altogether disregarded. If it is merely directory, its omission is but an irregularity, which does not vitiate the proceeding. Macnamara on Nullities, pp. 6, 24, marg. The death of the administrator who made the sale, before it was properly reported to the court, rendered it impossible for him to make the report as required by law. The sale, until so reported and confirmed, when it is for cash, is inchoate, and it should be vacated by the court when the examination authorized by the statute shows that the sale had been made for a currency not allowed by law. Here the bill and the proofs show that the sale was for "treasury notes of the Confederate States of America." Such a sale was not authorized to be made for such a currency, and it cannot be sustained. It should have been set aside. Ordin. Conv. 1867, No. 40; Pamphlet Acts, 1868, p. 187. And the learned chancellor erred in his refusal to vacate said sale, and in the dismissal of appellant's bill in the court below. And the court of chancery, having taken jurisdiction for the purpose of vacating the sale, will proceed to settle the whole controversy as equity may require. Blakey v. Blakey, 9 Ala. 391; Gayle et al. v. Singleton, 1 Stew. 566. In this case, neither Forrer nor Tuthill can be treated as bona fide purchasers without notice. One dealing with lands so situated must be charged with notice of the whole proceedings upon which his title rests. These show that the sale was unauthorized. Johnson v. Thweatt, 18 Ala. 741. In the further progress of this cause in the court below, the said defendant, Forrer, will be charged with the value of the use and occupation of the land in controversy during the period of his possession, and he will be allowed a credit for all necessary repairs and improvements by him made on the same, and also a credit for the cash value of the Confederate treasury notes paid by him for the same under the authority of said so-called sale, if the same has been of benefit to the testator or his heirs, said value to be fixed at the date of the payment of said Confederate treasury notes. And the said Tuthill will be charged with the use and occupation of said VOL. VI.-91 Ex parte Selma and Gulf Railroad Company. land during his possession of the same, and allowed credit for all necessary repairs and improvements thereon by him made during his said possession. The proceedings and proofs in the court below do not furnish sufficient grounds for a proper final decree in this court. The decree of the chancellor in the court below is therefore reversed, and the cause is remanded for further proceedings in the court below. The appellees will pay the costs of this appeal in this court and in the court below. Reversed and remanded. EX PARTE SElma and Gulf Railroad COMPANY. (45 Ala. 696.) Municipal corporation. Aid to railways. The constitution of Alabama provides that private property shall not be taken "for private use, or for the use of corporations, other than municipal, without consent of the owner," and that "the State shall not engage in works of internal improvements, but its credit, in aid of such, may be pledged by the general assembly on undoubted security." Held, 1. That the legislature of the State has power to authorize a county, as a body corporate, on a popular vote of the county, to subscribe for stock in a railroad company; and 2. That, for the payment of stock so subscribed, the county, as a corpora tion, may be authorized and compelled (by mandamus) to issue bonds of the county and deliver them to the railroad company in which the stock is subscribed. PETITION on the part of the Selma & Gulf Railroad Company, for a writ of mandamus, to be directed to the court of county commissioners of Dallas county. The petition shows that, under the provisions of the "act to authorize the several counties, towns and cities of the State of Alabama to subscribe to the capital stock of such railroads, throughout the State, as they may consider most conducive to their respective interests," approved December 31, 1868, the Selma & Gulf Railroad Company, by its president and a majority of its directors, submitted written proposition "to the county of Dallas, through the com Ex parte Selma and Gulf Railroad Company. missioners court, to take $250,000 in the capital stock of said company," and to pay for such stock in the bonds of the county, having twenty years to run, etc.; and thereupon the court of county commissioners ordered that said proposition be submitted to the qualified voters of the county for their acceptance or rejection, on the 6th day of August, 1870, in pursuance of the act of December 31, 1868, herein before referred to. At the election so held, two thousand and five legal votes were cast for "subscription," and seven hundred and fifty-three legal votes for "no subscription," and the result of said election was duly estimated and declared as required by law. The commissioners court afterward refused to make said subscription, or to deliver said bonds to the company therefor, alleging that the act of December 31, 1868, under which said election was held, is unconstitutional and void. An application for a writ of mandamus to compel the issuance of said bonds, etc., having been denied by the judge of the criminal court for Dallas county, the said Selma & Gulf Railroad Company renew their application in this court. Alexander White and John T. Morgan, for the motion, argued in favor of municipal aid to railroads, and cited generally the following cases: 24 Ala. 591, 618; 34 id. 330; 36 id. 410; 8 La. 171; 4 Pet. 514, 561, 563; 4 Wheat. 316, 428; 20 Johns. 138; 3 Paige, 45, 71, et seq.; 4 Com. 438; 11 Penn. 61; 8 Leigh. 120; 13 Gratt. 577; 24 Barb. 232, 248; 21 Penn. 147; 1 Ohio, 153; 41 Penn. 278; 23 Mo. 483; 8 Humph. 252; 1 Ohio, 77, 105; 2 id. 607, 647; 36 N. Y. 224; 19 Ill. 411; 21 id. 451; 20 Ohio, 10; 17 Cal. 23; 13 id. 175; 21 Penn. 188, 200; 11 B. Monr. 143; 15 Conn. 475; 2 Ohio, 77; 13 B. Monr. 1-9; 1 Ohio, 77; 3 Phil. 290; 22 Cal.; 49 Me.; 23 Ga.; 5 Fl.; 2 Black. 510; 3 Wall. 827; S. C. 491; 27 Vt. 140; 23 N. Y. 439. The supreme court of Michigan, in the recent case of The People ex rel. The Detroit & Howard Railroad Co. v. The Township Board of Salem, 4 Am. Rep. 400 (20 Mich. 452), has declared a railroad aid law unconstitutional. But since the decision of the supreme court of Michigan, above referred to, the same question has been before the highest courts of Iowa, Kentucky and Ohio; and all of them have adhered to the current of authorities affirming the constitutionality of laws substantially similar to the act now under considera. tion in this court. Stewart v. Board of Supervisors of Polk County, |