#### ISAAC HELLEN vs. PETER NOE & AL.

June 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 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 iron? 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 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 the said hog to Whitehurf 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, *494the 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 Generel 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.

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 *495commissioners is inconsistent with the laws and stitntion.” 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 tho 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; Jldley v Reeves, 2 M. & S. 60.— Stetson v Kempton, 13 Mass. Rep. 282. Corporation of Columbia v Harrison, 2 Couf. 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. *49664 — 3 Lev. 281. — 1 Rol. 366, c. 42; and the ordinance in this case gave the plaintiff a right to have his claims jndi-cially 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 Jaw, 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, üoates v Mayor &c. of New York,7 Cowen Rep. 585. Barker v Jackson, l Paine 559. Bindley v Commissioners, 2 Bay. 3.8. Public nuisances may be abated by the mere act of individuals. Welmore v Tracy, 14th Wendell 250. It is a right necessary to the good order of society, and the reason why the law allows this private and summary method of doing one’s self justice, is because injuries of this kind, which obstruct or annoy such things as are of daily convenience, use and comfort, require an immediate remedy, and cannot wait for the slow progress of the ordinary forms *497of justice. 3 Black.- Com. 5. It is no answer that such power may bo abused, for there is no power which is not sus-eeptible of abuse.- 14 Petersdorff. 513. 1 Strange, 253.— 12 Wheaton, 31. The defendant, as a corporate body, had a right to abate this nuisance, and any person may abate a common nuisance. This is the language of all the cases. 2 Salk. 458. 2 Roll. R. 31. Yin. Ab. Nuisance, T. 3 W. 4 Cro. Car. 184. 3 Burn’s Justice, 224. Hawk B. 1, ch. 75, s. 12. In Yiner’s Ab. Nuisance W. & Y., it is said that a common nuisance may be abated or removed by those perj sons who are prejudiced by it,- and they are not compellable to bring actions to remove them ; but it is said without qualification also, that every man, and in another place, that any person may abate a common nuisance. In Petersdorff’s Ab. Tit. Nuisance, W. N., it is laid down that a nuisance may be removed by the party grieved entering and abating it, and that the same rule applies to public nuisances. James v Haywood, Cro. Car. 184, was an action of trespass for braaking the plaintiff’s close, and pulling up and cutting down a gate. The defendant justified, because the gate was placed across the highway, and so fixed that the King’s subjects could not pass without interruption by reason of the said gate, and therefore he cut it down. The justification, was sustained, the court holding it was a common nuisance, which every person had a right to abate, and for the abating of which no action would lie; and that admitting it to be a nuisance, although the usual course is to redress it by indictment, yet every person may remove the nuisance, and the cutting of the gale was therefore lawful. See also, Haagh-ton v Butler, 4 T. R. 364. So it was held to be a nuisance for a wagoner to keep one or more wagons constantly before his store-house, in the public street, although there was sufficient room for two carriages to pass abreast on the opposite side of the street ; King v Russell, 6th East. 427; or for a stage coachman to stand with his coach in a particular part of the street for an unreasonable length of time waiting for passengers. Rex v Cross, 3 Camp. R. 224. It may be added *498jn proof of the sense entertained by the people of this State hits subject, for upwards of one hundred years, that the earliest private act upon record, contains a similar provision in substance with this ordinance; and almost every private act since that time, establishing a town, confers a like power upon the commissioners. Per Taylor, C. J. in Shaw v Kennedy, N. C. Term Rep. 162. Keeping hogs in a town is in England a nuisance, both at common law and by statute, as is evident from the case of Regina v Wigg, 2 Ld. Ray. 1163. Shaw v Kennedy, ut swpra.

There was no evidence to charge the commissioners, and the court ought so to have instructed the jury; the fact of their making the' ordinance and appointing the defendant Noe a town constable, in the absence of all proof that they directed Noe to take the hog of the plaintiff, or of their subsequent assent thereto, could not in law make them co-trespassers with Noe. A municipal corporation is not liable for the misfeasance^r nonfeasance of one of its officers, in respect to a duty imposed by statute on the officer. Noe either acted under the ordinance as an officer, or abated the nuisance of his own accord. Martin v Mayor of Brooklyn, 1 Hill’s N. Y. Rep. 547. Lane v Colton, 1 Salk. 17.

■ I)aniel, J.

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 the 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 an*499nually elected by the free white men oí the town, who are of the age of twenty-one. Their rules or ordinances are subject to be repealed or 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 byelaw to effect that end. The case of Shaw v Kennedy, N. C. Term. Rep. 158, 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 tnat 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 im=-pounding the animal, with a three days public advertisement for the owner to come forward aud 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 that oi 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 risrlrt to make regulations concerning *500the swine of the citizens of those towns. Swine running at lafg'e 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. We therefore think that a new trial must be granted.

Yerdictset aside, and new trial granted. Pee. Curiam.