Jackson v. Morris , 1 Denio 199 ( 1845 )

By the Court, Beardsley, J.

If the town regulation “that swine should, not be commoners,” has any sensible meaning, it has none which would justify the seizure and impounding of these hogs. But it is, in effect, abandoned by the counsel for the defendant in error, in the argument submitted on his behalf, and may be thrown out of view.

Beyond this, the case may be disposed of in a short way, for if we concede that the village ordinances were duly passed 'and promulgated, and were such as its charter authorized, still they afford no justification for what was done in this instance. These swine were driven to the pound by two boys; were received from them and impounded, and subsequently disposed of by a public sale.

These boys were not acting with or for the street inspector, and were, in no sense, clothed with the authority which the regulations of the village assumed to cast upon that officer. To be sure the inspector had given notice that if hogs found in the streets, were driven to the pound, those who drove them would be paid for it, and he had directed the pound keeper to receive all hogs which might be driven to the pound.

I shall not undertake to say what powers the inspector may have had, but I say, unhesitatingly, he had no authority to execute this ordinance in any such manner. If he could in person and with the aid of others acting for him and under his immediate order and direction, lawfully seize and impound swine found in the street, he was not authorized to delegate that power to all the men and boys in the town or the village. It would be most unreasonable to give such a construction to the language of the regulation, and it must be rejected. By the words of the ordinance it is declared to “be the duty of the street inspector to prosecute under direction of the trustees, for all violations of this law, and to drive "or carry all, such animals so found at large to the village pound hereafter provided, and deliver them to the pound master, and to hire as much assistance, at the. expense of the village, as he shall deem necessary to drive or carry such animals to the pound.” And it is made “ the duty of the pound master to receive and put into the village pound all such animals so brought to him.” A penalty is imposed, as well as a seizure of the offending animals authorized, by the ordinances, but the summary remedy by distress was only to be enforced by the street inspector, aided, if need be, by his immediate assistants. There was-no pretence of authority for any one else to seize for a. violation of the ordinance. It may be that the inspector and his assistants could justify under the ordinance,. but no one' else can. The remedy is summary and rigorous, and is by no means to be deemed legal as a thing of course. It is the exercise of a pretty high power in any case, and whoever asserts such an authority must show clearly that it exists. •

I think the seizure, impounding and sale of these hogs was without authority, and the judgment should be reversed.

Judgment reversed.