#### COMMISSIONERS OF LOUISBURG v. EDWIN HARRIS.

An act of Assembly, allowing a magistrate of police of an incorporated town to fine offenders, for disorderly conduct not cognizable by the general law, is not unconstitutional.

Where a town ordinance provided, that for certain disorderly conduct, the offender should pay a penalty of not less than one, nor more than twenty dollars, it was Held that such ordinance was void for vagueness and uncertainty.

This was an action for a violation of a town ordinance, brought by appeal to the Superior Court for Franklin county, and tried before Shepherd, J., at Fall Term, 1859.

The plaintiffs gave in evidence an act of Assembly, passed in 1855, entitled “an act to provide for the better government of the town of Lonisburg, in Franklin county.” This act gives the commissioners full power to pass all needful rules, regulations and by-laws, for the government of the town, not inconsistent with the constitution of the United States or of the State of North Carolina.

The plaintiffs then gave in evidence an ordinance passed by the commissioners of said town, on the 12th of February, 1858, which provides that “all disorderly conduct, whether committed by white men,'boys, free negroes, or slaves, shall *282be prohibited under a penalty of not less than one nor more than 'twenty dollars; all persons guilty of violating the peace, quiet or good order of the town of Louisbnrg, shall be arrested by the town constable and carried before the magistrate of police and fined as above provided, not less than one nor more than twenty dollars.”

The act of Assembly incorporating the town of Louisbnrg, gives the right of appeal to the Superior Court, to persons convicted under town ordinances, passed in pursuance of said act.

It was admitted, that after the passing of this ordinance, the defendant, Harris, came into the town, became intoxicated, and was disorderly, disturbing persons by loud shouting in the streets. He was brought before the magistrate of police, and fined three dollars, and from this judgment he took an appeal to the Superior Court. The warrant, under which he was arrested, after reciting the act of Assembly, and the town ordinance, and after declaring that Edwin Harris had violated the same, proceeds, “whereby, and by force of said statute, the said E. Harris has forfeited, for the said offense, accordintg to the penalty of said ordinance, the sum of not less than one, nor more than twenty dollars, and thereby, and by virtue and force of said act of Assembly or statute, and of said ordinance, an action lias accrued to the commissioners for the town of Louisbnrg; these therefore, are to command you to take the body of the said Edwin Harris, and him have before me, "William H. Pleasants, magistrate of police for the town of Louisbnrg, to answer the said complaint of the commissioners of said town, for a violation of said ordinance, &c., and to render to said commissioners the penalty for such violation. Herein, &c.”

The defendant’s counsel asked his Honor to instruct the jury that according to law, the defendant was not guilty. This was refused by the Court, who charged the jury, that if the testimony was believed, they should find the defendant guilty. Defendant excepted. "Verdict for the State.

The defendant moved, in arrest of judgment, for the reason *283that the act allowing the magistrate of police to fine, was unconstitutional, but the motion was refused. Judgment for plaintiff for $3.00 and costs. Defendant appealed.

Davis, for plaintiff.

Jenkins and Batchelor, for defendant.

Pearson, C. J.

There is no ground to support the position that the statute is unconstitutional. The Legislature has power to confer on a municpal corporation authority to make bylaws and regulations for its “ better government,” and, in pursuance thereof, the corporation may impose fines and penalties, so as to prevent the commission of acts calculated to disturb tire good citizens of the town, although such acts be not of a character so grave as to fall within the rules of the common law, or any provision of the general statute law. Indeed, one main purpose of an act of incorporation, is to enable the town to have more stringent rules for its better government, than such as apply to the state at large. The supposed necessity for it being, that a dense population has collected in a particular locality, so as to call for special regulations, in order to ensure good order, and promote the quiet and comfort of the citizens.

But this Court is of opinion that the ordinance in question, is void for uncertainty, and its enforcement is impracticable, according to the settled mode of proceeding in our courts, by reason of its vagueness, in respect to the amount of the penalty. That is not fixed by the ordinance, but is left open, between one and twenty dollars, to be afterwards fixed by the magistrate of police on the trial, according to the circumstances of each case. This manner of imposing penalties commends itself in one point of view, because it leaves the matter open until the evidence is heard, and the aggravating or mitigating circumstances are found; but, as before remarked, it is impracticable, according to the settled modes of proceeding in our courts, although the same end could be effected by a slight change in the provisions of the ordinance, that is, by *284imposing a fine of twenty dollars for the offense, with a provision, that, after conviction and judgment, the magistrate of police shall have power to reduce the penalty to a sum not less than one dollar, by remitting the excess.

For the purpose of showing that the ordinance as framed, cannot be enforced, it is only necessary to advert to the fact, that an action of debt will only lie for a “ sum certain,” and the inconsistency of the warrant, in this instance, with the nature of the action of debt, is obvious on its face, and we have.no doubt, greatly embarrassed the learned counsel, who drafted it, “ whereby the said Harris has forfeited, &c., the sum of not less than one nor more than t/wenty dollars / and an action has accrued to the commissioners to demand the same: these, therefore, are to command you to have, &c., before the magistrate of police, to render to said commissioners, the penalty of violation.” All is fixed with certainty,

except the amount of the sum, which he is “ to render,” and which is the gist of the action. So, no proceeding in the nature of an action, of debt, and it is scarcely necessary to say, nothing in the, nature of an “action of assumpsit,” will meet the exigency of the case.

But it is suggested that the commissioners had power to adopt a new mode of proceeding, and were not tied down to the old forms of the common law! That may be true, provided the matter was to be confined entirely to themselves; but this statute allows an appeal to the Superior Court, and the commissioners hardly had power to lay down a new mode of proceeding for that Court; at all events, they have not attempted to do so, and where the case is constituted in the Superior Court, this difficulty arises, i. e., by the appeal, the judgment of the magistrate of police was vacated ; suppose the jury find the facts alleged by the plainliffs, who is to fix on the amount the defendant has forfeited, and should have rendered to the plaintiffs? The jury? certainly not; because it is not in the nature of damages. The Court? on what ground ? It is not a criminal proceeding, where he may exercise his discretion in fixing the punishment; other*285•wise, it should have been before- the grand jury ; and, treating it as an action, or proceeding in the nature of one, on the civil docket, he has no right, according to the authority and power vested in him by the general law, t'o fix the amount of the plaintiffs’ debt, and although the commissioners have conferred such power upon their magistrate of police, their ordinance does not confer it on the Judge presiding in the Superior Court!

Piper v. Chappel, 11 Mees, and Wels. 621, is an authority to show that the penalty must be fixed. It is there held: “ We do not see any objection to this mode of fixing the penalty. It is a certain penalty of £5, with the power of mitigation, not below £2, and we do not think this unreasonable.”

In Commissioners of Washington v. Frank, 1 Jones’ Rep. 136, the point was not adverted to.

There is error. Judgment reversed and a venire de novo. As the facts were not disputed, it is to be regretted that the case was not put in a shape to enable this Court to enter judgment in favor of the defendant.

Per Curiam,

Judgment reversed, and a venire de novo.