Whitlock v. West

26 Conn. 406 | Conn. | 1857

Storrs,'C. J.

When the acts complained of in this declaration were done, we had no general statute prohibiting cattle from going at large on highways and commons; but the 30th section of the act concerning communities and corporations, (Rev. Stat. tit. 3,) empowered “ every town, at a lawful meeting warned for that purpose,” “ to make by-laws for restraining cattle,” and the other animals therein mentioned, “ from going at large, and for regulating such as shall go at large.” The defendants, on the trial, justified the acts complained of under a by-law of the town of Wilton which is recited in this motion.

The plaintiff, in the first place, claims that this by-law, or at least the part of it which provides that the animals therein mentioned, if found going at large, shall be impounded, is invalid, on the ground that the power of enforcing in that mode, the penalty prescribed by such by-laws, is not given by the statute by which they are authorized, and therefore that such penalty can be recovered -only by an appropriate common law action. In our opinion this claim is not well founded. Conceding, for the purposes of the present case, that the towns would not have the power of providing by a by-law thai animals going at large might be impounded, unless it was conferred by the statute just mentioned, it was clearly competent for the legislature to confer such power upon the towns; and, when we look at the terms of that statute, and the subject of it, and the object which it had in view, we are of the opinion that, by a just construction of it, that power was expressly given by it to the towns. In this view of it, the cases cited by the plaintiff are plainly inapplicable, as they were decided on the ground that the powers conferred by or claimed under the by-laws in question in those cases, exceeded those which the corporations who made them were empowered to exercise. In authorizing towns to pass by-laws for restraining certain kinds of animals from going at large, we think that the legislature did not intend only that they might impose a penalty for their violation upon the owners, to be recovered by an ordinary action, which would of course operate as no direct restraint or confinement of the animals, and leave them at large to do all the mischief which was designed to be prevented, but that they further intended to give to the towns power to adopt such suitable and appropriate regulations on the subject as would specifically prevent and hinder the animals themselves from being at large on highways and commons. The language used in the statute conferring the power upon towns to pass such by-laws, is peculiar, and more appropriate to authorize them to impose a specific restraint on the animals themselves than a mere prohibition upon their owners. It provides that they may pass by-laws for restraining, that is, for preventing or hindering the animals from going at large, and implies direct action upon the animals themselves. According to a familiar principle in relation to such a grant of power, the towns may use all the necessary and proper means for exercising it. It is obvious that no means could be more necessary or proper to carry this power into effect than to confine them in some suitable enclosure. And no enclosure could be more suitable than a pound established by law, and under the supervision and control of officers appointed for that purpose. From an examination of the various general statutes providing for the establishment of pounds and the manner in which they shall be maintained and kept, the impounding of creatures in them, their care and sustenance while in the pound, and their final disposition and discharge, in connection with the remedies prescribed where they are unlawfully impounded, we are also of the opinion that they were intended to apply as well to creatures which should be liable to be impounded under the provisions of by-laws passed by towns under the statute we are considering, as to those which should be impounded for other causes by virtue of our general statutes. (See the act concerning communities and corporations, Rev. Stat., tit. 3, ch. 7, §§ 85 to 98 ; also tha act for the regulation of civil actions, Rev. Stat., tit. 1, ch. 15, § 253.) That statute was passed at a very early period, and was designed to leave it to each town to determine whether and under what regulations the animals mentioned in it should be suffered to go at large within its limits, and, since its enactment, by-laws on that subject, similar in the respect in which the one now before us is claimed to be objectionable, have been passed under it by a very large proportion of our towns, and enforced, so far as our knowledge extends, without objection, excepting in a single case tried many years ago at the circuit, in which the point now made by the plaintiff .was overruled, and the decision acquiesced in without any attempt to revise it. If, as a new question, the plaintiff could succeed in raising a doubt as to the power of towns to pass such by-laws, we should deem it too late now to disturb a practical construction of the statute under ■ which they were passed, which has continued so long and been so general and uniform.

The plaintiff claims, in the next place, that this by-law, by a true construction, does not render cattle at large liable to be impounded; but that the provision on the subject of impounding applies only to swine. We think that this is not the just construction of that 'provision, but that it embraces also cattle and sheep, which had been before prohibited in the by-law from going at large. To confine it to swine only, would not be giving it that reasonable construction which all laws, and especially by-laws, which for obvious reasons are usually more inartificially expressed than others, should receive; while it would be manifestly opposed to the intention of those who passed it. It would also be opposed to the rule, which applies to this species of laws, as well as to all others, that such a construction should be given to them, if possible, that every part of them should have effect; for if that provision is held applicable to swine only, it would leave the prohibition as to cattle and sheep without any penalty or remedy whatever for its violation, since the next provision, affixing a penalty for the violation of the by-law, must, on the same ground, be held not to apply to those animals, but be restricted to swine only. The repetition of the word “voted,” preceding the provision respecting sheep and swine, which is all that gives any color to this ingenious claim of the plaintiff, was, if we impute any sensible meaning to the makers, unnecessary, and did not render the different clauses to which it was prefixed independentin sense, if it indeed did evenin form. All those clauses constitute but one by-law. They are so expressly treated in the last provision, which directs how “ the foregoing by-law ” shall be published, and are therefore to be construed collectively. It has also been justly remarked that the use of the word creatures, in the third clause, favors the construction of the defendants.

That part of the charge below, to which the plaintiff also excepts, in regard to the duty of selectmen in procuring pounds, was obviously correct. It is immaterial whether they erect or build a pound, or purchase or hire an enclosure suitable for that purpose already constructed. The vote of the town in this case was of no avail. It is found by the jury that the pound was procured and established, not by the town, but by the selectmen; and it was not less their act because it was done in accordance with the expressed wish of the town.

A new trial should not be granted.

In this opinion the other judges concurred.

New trial not advised.