McKee v. McKee

| Ky. Ct. App. | Jun 27, 1848

Judge Bkeok

delivered the opinion of the Court.

It is the opinion of this Court that the Circuit Court erred in sustaining the demurrer of the plaintiff to the avowry of the defendant in replevin, now plaintiff in error. No particular defects or objections have been suggested by counsel, and we have not been able to discover any. It is not deemed necessary to go into an argument to prove the authority of the Legislature to vest in the corporation of the town of Lancaster, ample power to pass the ordinance or by-law under which the proceeding was had, by which the plaintiff in error, who was the Marshal of said town, originally siezed the hogs in controversy. The corporation is authorized by the Legislature, to exercise all the. rights, powers and privileges of a corporation, for the purposes of the municipal regulation and control of said town; to impose adequate penalties upon such persons as neglect or refuse the duties required of them, and to pass all’ such rules, ordinances and by-laws for the government of said town, as may not be inconsistent with the constitution and laws of this State nor of the United States.

In view of this authority the President and Board of Trustees established the following ordinance or by-law: “That no hog, shoat or pig shall be permitted to run at large within the limits of the town of Lancaster; and if any such be hereafter found running at large, it shall be the duty of the Marshal of said town forthwith to take up the same, and if a jury for that purpose, first empannelled and sworn before some Justice of the Peace, shall determine that there has been a violation of this section, by such hog, shoat or pig having run at large within the limits of said town as aforesaid, said Justice shall proceed to make an order, in which he shall describe the marks, &c. of each, directing the Marshal of said town to sell the same to the highest bidder, either separate or in lots, as he shall deem best, for cash in hand, and after deducting the costs and charges of such proceeding, the remainder of the proceeds of such sale shall be by him paid over to the Treasurer of the Board of Trustees of said town, which shall be held subject to -the.order of the former owner of such hog, shoat or pig.”

vBurton for plaintiff, r by-laws by which hogs found running^ at large in a ‘town, are made subject to ■'sale -'at the expense of the owner, and the balance to be paid to the owner, is not in violation of either ^Federal or State 'constitution.

We aré not prepared to say that there is any thing in ‘ this-ordinance inconsistent with the constitution and laws of Kentucky, or with the constitution of the United States.

The 'running at large of hogs in a town, may be regarded as a public nuisance, which this ordinance is designed effectually to prevent and abate. We perceive Slothing in the mode of proceeding unconstitutional or inappropriate, nor is the penalty imposed deemed excessive or unreasonable.

It is not averred in the avowry, that the owner of the hogs was a resident o-r citizen of the town, nor in eiur opinion was such an averment necessary.

The offence consists in suffering the hogs to run at large in the town, and it is equally a violation of the ‘ordinance, whether the owner resides out of the town ,!0r in it. The proceeding is virtually a proceeding in <rem, and rests Upon the seizure of the hogs, and not upon the residence or domicil of the owner. But in this case due notice was served Upon the owner of the fhogs, and he w-as made a party to the proceeding.

Regarding the avowry as good and sufficient, the judgment mus't be reversed and the cause remanded, with directions to overrule the demurrer to it, and for further proceedings.