Opinion
(June Term, 1843.)
The Commissioners of the town of Beaufort have authority, by an act of Assembly, to make ordinances for the removal of public nuisances, and also all such necessary rules as may tend to the advantage, improvement and good government of the town, not inconsistent with the laws and constitution of the state. Under this power, the Commissioners had a legal and valid authority to pass an ordinance to this effect, "that every hog at large in the said town should be taken up and penned and advertised to be sold on the third day, and unless the owner should pay the charge for taking up such hog, and if a sale is effected, the money arising therefrom, after paying the charges, will be paid over to the owner of such hog."
APPEAL from Bailey, J., Spring Term, 1843, of CARTERET.
Trespass for taking a hog belonging to the plaintiff. On the trial it was in proof, that the plaintiff lived in the town of Beaufort; that his hog was running at large in the streets of the said town; that the defendant, Peter Noe, as the constable of the said town (having been duly appointed to that office), and under an ordinance of the commissioners of the town, seized and sold said hog to Whitehurst for twenty-five cents; and that the ordinance under which Noe acted was made by the other defendants as commissioners. The following is a copy of the ordinance, viz.:
"Ordinance of the commissioners of the town of Beaufort, passed 5 August, 1841.
"Whereas, complaint having been repeatedly made to us, the commissioners of the town of Beaufort, that the number of hogs (494) running at large in the town has increased greatly, and that they root up and otherwise impair the streets, and that they annoy and are a nuisance to the community: Be it therefore ordained, that from and after the 15th inst. each and every hog at large in the town will be taken up and penned and advertised to be sold on the third day, and unless the owner or owners of such hog or hogs shall pay the charges for taking up such hog or hogs, and if a sale be effected, the money arising therefrom after paying the charges, will be paid over to the owner or owners of said hog or hogs. Charges for taking up each hog, 30 cents; keeping, 10 cents per day."
The defendants' counsel insisted that the defendants were justified under an act of the General Assembly and the ordinance aforesaid, and that if the action could be maintained at all, it could be sustained only against the constable, and not against the commissioners, although he acted under their direction. The Court charged the jury, that if they were satisfied the hog belonged to the plaintiff, and the defendant, Peter Noe, seized and sold it, and that he acted under the direction of the other defendants, as commissioners, the plaintiff was entitled to recover the value of the hog, and that the defendants were not justified under the ordinance and acts of Assembly. The jury found a verdict for the plaintiff, and judgment having been rendered pursuant thereto, the defendants appealed.
No counsel appeared for the plaintiff in this Court.
J. W. Bryan for the defendants.
This was an action of trespass for taking a hog. Plea in justification, that the defendant, Peter Noe, was then the town constable of Beaufort, and that he took up the hog of the plaintiff within the limits of the said town under town ordinance mentioned in the case. Had the Commissioners of the town power to make such an ordinance? The private act of Assembly, passed in the year 1825, for the better regulation of the town of Beaufort, authorized the commissioners to make ordinances for the removal of public nuisances, and also all such necessary rules as may tend to the advantage, improvement, and good government of the said town, not inconsistent with the laws and Constitution of the State. The commissioners are to be annually elected by the free white men of the town who are of the age of twenty-one. Their rules or ordinances are subject to be repealed or (499) amended at the pleasure of a majority of the commissioners. The plaintiff and defendant are both citizens of the said town. If the commissioners deemed it to be to the advantage of the town to prohibit the hogs of its citizens from running at large within the limits of the corporation, we cannot see that they had not the power, under the above recited act, to pass any reasonable by-law to effect that end.
Shaw v. Kennedy, 4 N.C. decides that a town ordinance is not lawful which authorizes the property of one man to be taken from him and given to another, without any notice to the owner or trial of his rights. But in this case the ordinance does not attempt to deprive the owner of his property, provides for his having notice, and secures to him every right which he can claim, not inconsistent with the object of the ordinance, the prevention of mischief to the community. If a majority of the citizens of the town deem the ordinance impolitic or injurious to the people of the corporation, they have the power in their own hands to remedy the evil; but we cannot say that this ordinance is either against the general law, or is in itself unreasonable. The seizure and distraining of the hog by the proper officer, and impounding the animal, with a three days public advertisement for the owner to come forward and take his property, and pay the officer's charges only, or if a sale took place, the purchase-money, after deducting the costs, to be held for the owner, distinguish this case from Shaw v. Kennedy. Notice to the owner of the hog is given by force of the distress of the property and the public advertisement. Such notice has been declared by the courts to be sufficient to bring the owner of the property seized into Court under our attachment laws. Personal notice is not absolutely necessary; if the owner of the property be unknown no other notice can be given, or this method of giving notice will be the best. The Legislature has, in many instances, given the commissioners of towns the right to make regulations concerning the swine of the citizens of those towns. Swine (500) running at large in a town may or may not render the enjoyment of life and property uncomfortable. And if they belong to the citizens of the town, we think that they come under the legislative power of the commissioners. Whether the commissioners will make rules concerning such property, is only a matter of expediency.
PER CURIAM. New trial.
Cited: Whitfield v. Longest, 28 N.C. 271; Rose v. Hardie, 98 N.C. 47; S. v. Austin, 114 N.C. 860; S. v. Tweedy, 115 N.C. 705; Broadfoot v. Fayetteville, 121 N.C. 420; S. v. Ray, 131 N.C. 820; Daniels v. Homer, 139 N.C. 251, 263, 271.
(501)