Higley v. Bunce

| Conn. | Jun 15, 1835

Huntington, J.

Several questions are presented, by this record, upon which we do not think it necessary to express an opinion ; as there is one error assigned, which, in our judgment. is sufficient to require the reversal of the judgment of the court below.

The statute (revision of 1821) tit. Towns, s. 7. p. 458., enacted, that “every town, ata lawful meeting, warned for that purpose, shall have power to make by-laws for restraining horses, cattle, asses, mules, swine, sheep, and geese, from going at large, and for regulating such as shall go at large : provided that no penalty for any breach of such by-law shall exceed three dollars; and that such by-laws shall not be in force till published four weeks successively, in a newspaper printed in such town, or in the town nearest to such town in which a newspaper is printed, or in some other newspaper generally circulated in the town where such by-law is made, as the town shall direct.”

The plea recites the by-law, passed by the town of Canaan, (which contains no direction as to the publication of it.) and then avers, that “ the said vote or by-law was published, as the law directs, and by order of the town-clerk of said Canaan, four weeks successively, between said first day of October and the second day of November then next ensuing, in the Litch-field Enquirer, a public newspaper printed in the town of Litchfield, the said newspaper being one published nearer to the said town of Canaan than any public newspaper printed in this state, and generally circulated in and among the inhabitants of said town of Canaan."

The replication admits the truth of this averment.

It appears, then, from the record before us, that there was, in fact, a publication of the by-law, in a newspaper printed in a town nearest to the town of Canaan in which a newspaper is printed; and that such newspaper generally circulated in the town of Canaan: — but it does not appear, that this publication was made in pursuance of any order or vote of the town, or that the town, in any manner, designated the newspaper in which the by-law was to be published: nor is it averred, that there was not a newspaper printed in Canaan. The plaintiffs in error insist, that there has been no legal publication of this by-law; — that the statute imposes on the town the duty of designating one of three descriptions of newspapers in which it shall be printed; — and that having neglected to give this necessary direction, the by-law, under which the defendants justify, has never been “ in force.”

We think this objection to the validity of the by-law, must prevail. We are unable to give any other construction to the legislative enactment, consistent with its language or object, than that which requires the town to direct the mode of publication, by pointing out one of three descriptions of newspapers in which the by-law shall be printed.

It would be difficult to adopt words more expressive of the duty of the town, in this respect, than those which are used in this statute. The publication is to be made through the medium of a newspaper : and it must be one printed in the town, or in the town nearest to such town, in which a newspaper is printed, or in some other newspaper generally circulated in the town where such by-law is made, as the town shall direct. The direction to publish, and in one of three modes specified, is peremptory ; but the authority to select one of these three modes of publication, which are put, by the statute, in the alternative, is confided to the discretion and sound judgment of the town ; and the corresponding duty to exercise that discretion, by making the selection, is enforced, by causing the validity of the by-law, to depend upon its exercise. The words “ as the town shall direct,” have an obvious application to the whole preceding provision relating to the publication. They are immediately subsequent to the provision referred to, in the order of the entire sentence, and seem, as clearly as language can indicate, intended to apply to, and controul the whole of the previous enactment relating to the publication. It was, indeed, suggested, that they might be confined to that part of the sentence immediately preceding, which authorizes a publication “ in some other newspaper generally circulated in the town where such by-law is made.” We do not concur in this suggestion. We think it is not in accordance with the ordinary import of the words ; nor with the order in which they appear in the statute; nor with the general rule of construction, which requires, in the absence of any other controuling principle, that the words used in a statute are to be taken in their common and popular sense, and to have such an application as is consistent with their natural import, and with the arrangement and grammatical construction of the sentence of which they form a part. In our opinion, it would do violence to the words used, to affix any other meaning to them, than that which gives to ■ them an application consonant with the frame and structure of the paragraph in which they are used. We do not feel ourselves at liberty to say, that the phraseology of this statute au-thorises a construction, which requires the discretion of the town to be exercised, only where the publication is to be made in some newspaper generally circulated in the town, and not printed in that town, or in the town nearest to it in which a newspaper is printed. We cannot alter the arrangement of the words, any more than we can change the words themselves; nor can we limit, by construction, the language of the statute, where its object does not require it.

If the view which we have thus taken of the case, be correct, it is embraced by the words of the statute, and also by the principles settled by this court, in Willard v. Killingworth Borough, 8 Conn. Rep. 247., which we consider entirely reasonable. In that case, we said, that “ boroughs and towns are, confessedly, inferior corporations. They act not by any inherent light of legislation, like the legislature of the state ; but their authority is delegated, and their powers, therefore, must be strictly pursued.”

The same result to which we have arrived, by consulting the words of the statute, and the connexion in which they stand with each other, will follow from an examination of the object and consulting the spirit of the law.

The power which is given to towns to make by-laws for restraining horses and other animals from going at large, and for regulating such as shall go at large, has, when exercised, a direct and important effect upon the interests of individuals. It not only operates to deprive them of what they deem a benefit, but, if resisted, subjects them to penalties, expenses, and, as the case may be, much inconvenience. It was considered highly reasonable, that some further notice should be given of the existence of these by-laws than would be furnished, by the records of the town, which passed them. The statute, therefore, provided, that they should “ not be in force,” until they were published : and in directing the mode of publication, the legislature had in view, the adoption of one which would be most suitable and best adapted to give notice of the existence of the by-law, to all who might be affected by its provisions. It was forseseen, that the publication in a newspaper printed in the town where the by-law was made, might not furnish as extensive notice, as a publication in one printed in a town nearest to such town ; and that the notice might be more general, by omitting to publish in either of such newspapers, and substituting one which had a general circulation in the town, without reference to the place where it was printed. It was supposed, that the great object of publication — that of giving the most effectual notice — would be most fully answered, by vesting a discretionary power somewhere, to adopt that one of the three modes specified in the statute, which would best secure that object : and that discretion was accordingly vested in the town, who make the by-law, — whose inhabitants are to be subject to its provisions, — and who are presumed to be most competent to determine which mode of publication will best subserve the purpose of general information. It was not left to any officer of the town, or any individual inhabitant, to judge in this matter. His discretion was not made the rule, by which the manner of giving notice was to be regulated. The responsibility and duty were cast upon the town, to order the publication, through the medium of a newspaper, in such manner as, in its judgment, was best adapted to accomplish the end proposed by the legislature ; and yet its discretion was limited, by requiring the publication to be made in one of three descriptions of newspapers mentioned in the statute. If we have rightly interpreted the design of this legislative enactment, and the object intended by giving the power to the town, to direct the publication in the alternative, we think it very clearly follows, that the town must exercise that power, by directing the mode of publication, before the by-law imposes any legal obligation. Without the order of the town, there can be no valid publication. The town alone is competent to make the order ; and upon the town devolves the duty of making it. We perceive no hardship in this requirement. It is reasonable in itself; it may be followed without inconvenience; and it promotes the important object contemplated by the legislature.

Another beneficial result will follow from the construction we put upon this section of the statute, and which, we think, was intended by the legislature. By requiring the town to designate one of the modes of publication specified in the act, it can, with more certainty, be ascertained, whether the by-law is “ in force.” Individuals who are interested in the subject matter of the regulation — those who are desirous of enforcing it against others, and those who wish to obey it, if legally binding, — and those also to whom its provisions are obnoxious, and who wish to disregard it, if “ not in force,” may examine the records of the town, which are public and open to inspection, and from them learn in what manner the publication was directed to be made. They are not compelled to enquire of those who may not be disposed to inform them, or who, by mistake or design, might mislead them, where it was published, — whether in a paper printed in the town, or in some other town. They need not rely on the courtesy or accuracy of any one, for information necessary to regulate their conduct ; but may obtain it from the record in the town-clerk’s office ; and thus, with certainty, ascertain their rights and duties, so far as they depend upon the publication of the by-law.

Upon the whole, we think, for the reasons stated, there is error in the judgment of the superior court, and that it must be reversed.

In this opinion the other Judges concurred, except Church, J., who gave no opinion.

Judgment reversed.