Varden v. Mount

• Decision Date: 29 September 1879
• Citation: 78 Ky. 86
• Parties: Varden v. Mount.
• Court: Kentucky Court of Appeals

78 Ky. 86

Varden v. Mount.

Court of Appeals of Kentucky.

September 29, 1879.

APPEAL FROM OLDHAM CIRCUIT COURT.

FRENCH & HARWOOD FOR APPELLANT.

B. S. ROBBINS FOR APPELLEE.

JUDGE HINES DELIVERED THE OPINION OF THE COURT.

This action was instituted by appellant against appellees to recover the value of certain hogs, and damages for taking, alleged to have been converted by appellees. The answer sets up the fact that appellee, J. R. Mount, while marshal of the town of Lagrange, found the hogs in controversy going at large on the streets of said town, and that he caused them to be impounded, advertised, and sold, as it was his duty to do under an ordinance of said town, which reads as follows:

"That it shall be unlawful for hogs to run at large on the streets of said town between the first day of April and the first day of November of each year. Any person permitting their hogs to run at large shall be subject to a fine of one dollar for each and every offense for each hog and pig. It shall be the duty of the town marshal, upon being notified or knowing of hogs being on the streets, to put them in a lot and advertise them for three days, and to offer them at public sale to the highest bidder for cash, and, after paying the expense thereof, to pay over to the rightful owner the balance, if any. Further, the owner of all such hogs or pigs as may be impounded by the marshal shall be responsible for all expenses he may have incurred, and for the simple duty of impounding a hog he shall be allowed fifty cents."

The answer further alleges that appellant had knowledge that the hogs had been taken, was present at the sale, and that appellee offered to return them to appellant on his paying the fees and costs of keeping, which appellant refused to do. The allegations of facts in the answer being taken as true, the action was submitted on the pleadings, and the court dismissed the petition.

The questions presented on this appeal are:

1st. Did the charter of the town of Lagrange authorize the passage of such an ordinance?

2d. Is such an enactment constitutional?

The section of the charter of the town under which this power is attempted to be exercised, reads as follows: "The trustees of said town may enact such ordinances and by-laws providing for good order, health, and comfort among the citizens and in the town generally; for the safety of property, the abatement or prevention of nuisances, and for the convenience of the public good, as may, in their opinion, be necessary or politic." (Session Acts 1848-'9.)

It has been very generally held that the right to adjudge a forfeiture of stock running at large in a city or town, in violation of ordinances forbidding it, should be plainly conferred. In Phillips v. Allen (41 Pa. St., 482), there was an ordinance requiring that baskets used for the sale of fruit and vegetables should have the fractional parts of a bushel, contained in each, stamped thereon, under penalty of being forfeited with the contents. Certain baskets of fruit not thus marked were seized by the clerk of the city market and forfeited. There being no enactment of the Legislature expressly authorizing the forfeiture, an action of replevin was brought, and the court held that, under the authority to assess fines and enforce penalties, the right to forfeit was not implied, and that the plaintiff should recover.

In White v. Tallman (2 Ducher, 67) it was held that such a power could not be exercised unless expressly granted by an act of the legislature. See also Colter v. Doty (5 Ohio, 398); Dillon on Municipal Corporations, sections 101, 279, and 282.

While such appears to be the weight of authority, in McKee v. McKee (8 B. Monroe, 433) it was held, that under a general grant of power to a council to pass all ordinances that might be deemed necessary or proper for the government of the city, an ordinance providing for the forfeiture and sale of stock running at large was enforceable. In that case, however, the ordinance provided for the empaneling a jury to determine whether the ordinance had been violated, and, upon the jury so finding, the justice before whom the proceeding was had should make an order directing the marshal to sell. So it may be considered that, under the authority of that case, the grant of such power may be reached by implication from the grant of such general powers as indicated.

This brings us to the more important inquiry, whether, when the power to make ordinances providing for a forfeiture of stock can be deduced from the charter, such ordinances, to be valid, should not provide some method by which it can be judicially determined that there has or has not been a forfeiture.

The constitution provides that the citizen shall not be deprived of his property except by the law of the land. The meaning of that provision has generally been construed to be a law that hears before condemning, and arrives at a judgment...