Whitfield v. . Longest

28 N.C. 268 | N.C. | 1846

Trespass, to recover damages for taking a parcel of hogs. On the trial below the following case agreed was submitted to the court:

The defendant Longest was the constable of the town of Beaufort in the county of Carteret, and the other defendants commissioners. The latter made and published an ordinance whereby the running at large of hogs in the streets was declared a nuisance, and forbidden; and it was ordained "that each and every hog found at large in the town will be taken up and put in pound, and advertised to be sold on the third day, unless the owner thereof shall pay the charges for taking up such hog or hogs; and if sold, the money arising therefrom, after paying the charges, shall be paid over to the owner." The constable is authorized to charge 30 cents for the taking up and 10 cents a day for keeping each hog. The plaintiff does not reside within but adjacent to the town, and his hogs being found at large in the streets, were, by the defendant Longest, by virtue of the ordinance, taken up. Notice was duly given to the plaintiff, and he was informed that if he would pay the charges as established by the ordinance the hogs would be restored to him. This he declined, and after due advertisement they were on the third day sold, and this action brought. The presiding judge gave judgment for the defendants, and the plaintiff appealed. We perceive no error in the opinion of the presiding judge. The common law gives to every corporation power to make by-laws for the general benefit of the corporators, and the Legislature, by the private act incorporating the town of Beaufort, passed in 1825, authorized the commissioners to make ordinances for the removal of public nuisances. The ordinances so made must be reasonable and for the general benefit. The commissioners, then, are clothed with power to make laws to abate nuisances within the corporation. They have declared that the running at large of hogs in the streets of the town is a nuisance, and by their ordinance pointed out the mode by which it was to be abated. Their authority to pass the ordinance, so far as the inhabitants of the town are concerned, has not been directly denied; nor, indeed, is it an open question. The very point, upon this same ordinance, was before this Court in Hellen v. Noe, 25 N.C. 495, and then received a judicial exposition. The only question now submitted to us is, Does this ordinance bind the plaintiff, who is not an inhabitant of Beaufort, or his property? It is very certain that the legislative acts of the (272) commissioners of a town are and must be limited to, and can have no effect beyond, the limits of the corporation; but the proposition is not true that none are bound by them but those who, in common parlance, are inhabitants of the town. All who bring themselves within the limits of the corporation are, while there, citizens, so as to be governed by its laws. If this were not so, those town laws or police regulations, so absolutely necessary and useful, would be entirely nugatory. No matter how important and necessary, whether to the health or peace of the town or to the supply of its inhabitants with their daily provisions, they might be set at defiance, so far as the police of the town was concerned, by any individual who was not a corporator. A citizen may not be at liberty to fire a loaded gun within the limits of the town, but a man whose yard adjoins those limits may do the same act; in him it is not punishable by the law of the corporation, because he is not a citizen. The law is not so. It is the act which the commissioners have a right to punish, no matter by whom done. But the principle does not rest alone on reason for its justification; it is sustained by legal authority. In Pierce v. Bartram, Cowp., 269, it is expressly recognized. The defendant was sued to recover a penalty inflicted by the ordinance of the city of Exeter upon any one butchering cattle therein. The defendant had so done, and rested his defense upon the fact that he was not a citizen of Exeter, and that the ordinance could apply to none but such.Lord Mansfield declared that the plaintiff, having come within the city, was, pro hac vice, an inhabitant, and bound by the same regulations as the other members of the corporation. So, also, Buffalo v. Webster, 10 Wendell, 99, recognizes and enforces the same doctrine. Commissionersv. Pettijohn, 15 N.C. 591, fully recognizes the principle of the cases from Cooper and Wendell, and establishes it as the law of this State. The action was brought to recover from the defendant, who was not an inhabitant of the town of Plymouth, a penalty (273) incurred, as it was alleged, by the violation of a by-law of a town which required owners of cattle to pen them every night, and some of those belonging to the defendant being found at night in the town unpenned, the penalty was considered as incurred by him. The Court say: "When an offense is made to consist of the omission to do an act in the town, he only is within the purview of the law upon whom by that or some other law the act is imposed as a duty to be performed within the town." They, therefore, held that the penalty did not attach to the defendant, not simply because he was not a corporator, but because of that fact and the additional one that it was for the omission of an act to be done within the town. The Court say that "there can be no doubt that one, not a corporator, but who comes within the limits of a town and there violates a police regulation sanctioned by a penalty, becomes as liable to pay it as if he were a member." But in this case the plaintiff has done no act within the corporation to bring him within the character of a corporator; that is true; nor is any penalty, as such, or any forfeiture, sought to be enforced against him by the corporation of Beaufort. If, however, he has not, in his own person, violated the ordinance of the town, his property has, and through his means. He has as every other farmer does, turned out his stock to range upon the uninclosed land around him. His hogs were permitted to stray into the town of Beaufort, in violation of the ordinance. Had the defendants a right to take them up and sell them as done in this case? Pettijohn'scase puts things within a local jurisdiction upon the same footing as persons. "The cattle of a stranger," say the Court, "straying into a town and there becoming nuisances, or found damage feasant, may be removed by way of abating the nuisance, and may be distrained and impounded until the owner shall pay the expenses and such (274) pecuniary mulct as may have before been imposed." As to the objection that there is no judicial decision condemning the property to be sold, we think it insufficient, since the owner may, if he chooses, have a full investigation of the case by bringing an action of replevin, as in any other case of distress.

PER CURIAM. Affirmed.

Cited: Wilmington v. Roby, 30 N.C. 254; Comrs. v. Capeheart, 71 N.C. 160;Rose v. Hardie, 98 N.C. 47; S. v. Tweedy, 115 N.C. 705; Broadfootv. Fayetteville, 121 N.C. 420.