Hellen v. Noe

• Decision Date: 30 June 1843
• Citation: 25 N.C. 493,3 Ired. 493
• Court: North Carolina Supreme Court
• Parties: ISAAC HELLEN v. PETER NOE et al.

3 Ired. 493

25 N.C. 493

ISAAC HELLEN

v.PETER NOE et al.

Supreme Court of North Carolina.

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.”

The case of Shaw v Kennedy, N. C. Term Rep. 158, cited approved, and distinguished from this case.

Appeal from the Superior Court of Law of Carteret County, at Spring Term, 1843, his Honor Judge BAILEY presiding.

This was an action of Trespass for taking a hog belonging to the plaiutiff. 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 the said hog to Whitehurt 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 August 5th, 1841.

Whereas, complaint having been repeatedly made to us, the Commissioners of the town of Beaufort, that the number of hogs 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 plaintff, 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 submitted the following argument :

This cause derives its importance from the very serious inconvenience it threatens not only to the corporation of Beaufort, but also to nearly every other town in the State, where the corporate authorities have ordained similar municipal regulations. It is objected that the ordinance of the commissioners “is inconsistent with the laws and constitution.” The Legislature, in 1825, (private laws of that year, chap. 48, s. 15,) passed “an act for the better regulation of the town of Beaufort;” by the fifteenth section of that act, the commissioners of the town are authorized, “from time to time and at all times, to make such rules, regulations and ordinances, as to them shall seem meet, for repairing the streets and regulating the same, for the removal of public nuisances and all such other necessary ordinances, rules and orders, which may tend for the advantage, improvement and good government of said town not inconsistent with the laws and constitution of the State.” The plaintiff in this case is a corporater, or, as the case states, “he lived in the town.” These bye-laws or ordinances obligate, upon the ground of the express or implied consent of the corporators; Adley v Reeves, 2 M. & S. 60.-- Stetson v Kempton, 13 Mass. Rep. 282. Corporation of Columbia v Harrison, 2 Conf. Rep. S. Ca. 213. Nor is it an objection to a corporator's being bound by a by-law, that he had no notice of it, or that he was not a member of the corporation at the time the by-law was passed. Lutw. 350. London v Vanacre, 12 Mod. 273--S. C. 1 L'd Ray. 499. Pierce v Bartrum, Cowp. 270-- Angel and Ames on corp. 200. Whether a Bye-law is reasonable or not, is a question for the court solely: and evidence to the jury on the subject stating the effects of the bye-law, was held inadmissible.-- Commonwealth v Wooster, 3 Pick. Rep. 462. Courts in construing bye-laws will interpret them reasonably; not scrutinizing their terms for the purpose of making them void, nor holding them invalid, if every particular reason for them, does not appear. Ventris v Passey, 1 Burr. Rep. 235-9. And where a charter or statute empowers a corporation to pass such bye-laws as are necessary, the bye-law, to be valid, need not recite that it was necessary: but the necessity will be implied from the act of passing it, being in fact synonymous with expediency. Stuyvesant v Mayor of New York, 7 Cowen's Rep. 606. A bye-law may enact that a penalty shall be recovered or levied by distress, 5 Co. 64--3 Lev. 281.--1 Rol. 366, c. 42; and the ordinance in this case gave the plaintiff a right to have his claims judicially investigated; he might on the distress being made, have replevied the property and had the proceedings returned into a court of record, and had its judgment on the rights of the parties. The writ of replevin is a common law proceeding, and may be used in this State, and is a remedy incident to every species of distress without process. It has been frequently used in this as in all the States of the confederacy, which have adopted the common law. McNamara v Kerns, 2 Iredell 66. State v Patrick, 3 Dev. Rep. 481. This ordinance is in affirmance of the powers granted to the commissioners by the private act of 1825, and is not repugnant to the constitution. The offence of permitting hogs to run at large in a town, whereby the streets are rooted up, the ordinary enclosures broken down, mud holes made in the streets, &c. is a nuisance at common law; and if this offence was punishable before at common law, though the ordinance may prescribe a new remedy, unless there are negative words excluding all others, the common law remedy still remains. 2 Burr. 803, 805, 835. 2 Hawk. 301-2. 7 Wendell 280. 5th Cowen 168. 2 Caines 169. That affirmative statutes do not take away the common law, is a maxim of the common law itself. 2 Inst. 200. 6 Bacon tit. statute G.--the remedy therefore by this ordinance is merely cumulative. This ordinance is not unconstitutional, but stands on the ground of being an authority to make police regulations in respect to nuisances. Coates v Mayor &c. of New York, 7 Cowen Rep. 585. Barker v Jackson, 1 Paine 559. Lindley v Commissioners, 2 Bay. 38....