Gosselink v. Campbell

Woodward, J. The only question is upon the validity of the ordinance, for the authority of the marshal depends upon that. As this is a very usual provision in a town or city charter, and as the ordinance is of a very common character, it is not, on first view, altogether apparent, what are the objections intended to be urged against it, and therefore the propositions of counsel will be given as they have advanced them. They say, first, that a corporation has no power to pass by-laws or ordinances which are contrary to the constitution of the State, or of the United States, or to the common law, as it is accepted and received in the juris [299] diction or state in which such corporation exists. This proposition is presumed to be true; but in this, as in some other instances, the doubt or difficulty arises in its application. It is very broad, but is it true, that any restraint upon any and every common law right, is a violation of its true meaning? I have a common, or common law, right to build my house of wood. How then can I be prohibited. doing so, and be directed to build of brick, or stone? I have a common law right to do many things on my own grounds which are often prohibited in large towns. The direct application which the plaintiff appears to make of this proposition, is by his third, which is, that the rule of the common law of England, requiring the owners of stock to fence them in, has never been in force in this State, but the reverse is the true doctrine. ■ It is sufficient- to say, in answer to this, that it is not pretended that that part of the ordinance which requires the owners to keep up their stock, applies. to the plaintiff personally, or to any persons residing out of the corporate limits. The ordinance, like a state law, can have no extra-territorial force. But, as in the case of any other law, when persons or property come within its territory, they are under its authority. If it is said that this is a restraint upon his common law right, then we come back to primitive elements. The plaintiff has natural rights, and so have others, and he must so use his as not to injure theirs. As he cannot let his stock run at large at the expense of breaking into his neighbor’s-field and destroying his crop, so he cannot suffer them to annoy those citizens who constitute á municipal' corporation. The principle is not changed by the fact, that our law happens to require the landowner to fence against ■ stock, for the supposed natural liberty of the owner of stock is restrained by his liability, in case his creatures break the fence of his neighbor. The case is also like that of the liberty of speech which one possesses, but for the use of which he is answerable. In fine, the plaintiff’s right must be enjoyed in harmony with the rights of others. The legislature may confer upon a town the power to adopt such regulations as these, whether we style them sanitary, police, [300] or by some other term. And the plaintiff may permit his creatures to roam unconfined, but if they come within the limits of the town, they come under its laws. It is believed that the true meaning of the rule, that a by-law cannot be contrary to the common law, is, that it must not violate the principles of that law; but the rule cannot be carried to the extent of saying that no common law or natural right can be restrained or abridged. The statute before referred to, confers1 ample authority to adopt a charter, with provisions similar to these, and the charter in the present case, in various and in express terms, permits an ordinance, whose object is the same with that before us. Whether it is required to be in any respect different from this one, we will consider under another head. Neither do we apprehend the force of the assertion, that the ordinance is unreasonable, which is the fourth proposition of the plaintiff. Another, and probably the leading objection made by the plaintiff, is, that no power is conferred ujoon the town to create a forfeiture of property, and that this ordinance creates one,, and is therefore void; this point will be treated as briefly as may be. The terms, fine, forfeiture, and penalty, are often used loosely, and even confusedly. But when a discrimination is made, the word “penalty” is found to be. generic in its character, including both fine and forfeiture. A fine is a pecuniary penalty, and is commonly (perhaps always,) to be collected by suit in some form. A “ forfeiture ” is a penalty by which one loses his rights and interest in his property. See Webster’s Diet, and Jac. Law Diet., &e. .It is true, as claimed by the plaintiff, that a town cannot pass an ordinance creating a forfeiture, unless clear and distinct authority be given therefor. Hart & Hoyt v. Mayor and City of Albany, 9 Wend. 571; Cotter v. Doty, 5 Ohio, (Ham.) 394; City of New York v. Ordreman, 12 Johns. 122; A. and Ames on Corp., (ed. 1832,) chap. 9, § 8, and seq.; 1 Bac. Ab. tit. By-laws. The Code, chapter 42, under which this charter is adopted, authorizes penalties to be collected by civil action. A civil [301] action is required here to enforce the penalty, and the word “collected” seems to point to fines only.. See the cases above. The first section of the ordinance is within the spirit and meaning of the statute and of the charter. • But the essential question is, as to the second section, which requires the marshal to take them up, and to sell, unless the owner take them, and pay the fine and costs. Eegarded as a mode of enforcing the first section, and of collecting the fine there •prescribed, it is defective, both because the organic statute (Code, § 665), requires a civil action for this purpose, and upon the common ground that the fine cannot be thus enforced, without trial and adjudication. This leads to another consideration. Hogs running at large, contrary to lawful prohibition, are regarded in the light of a nuisance. An action to recover a fine is an inapt and inadequate remedy. Whilst the several days’ notice required in an action are passing, and even after, the nuisance continues. Such an action does not abate it. The town is expressly authorized to prohibit the running at large of this creature, and also has a power in relation to all nuisances under its authority, concerning the health, cleanliness and safety of the city and its citizens. By the ordinance, the running at large of hogs is made a nuisance. The question now is, whether its second section can be sustained as a method provided for abating such nuisance. Proceedings for the abatement of nuisances are of a more summary nature than actions, from the necessity of the case. This ordinance does not, strictly speaking, create a forfeiture, for after paying the expenses and fine, the remainder of the proceeds of sale are paid to the owner. It is then, in effect, but the abatement of the nuisance, and as such, is regular. It is sufficient for the abatement of the nuisance and the payment of the charges, but not for the enforcement of the fine. Nor do we' apprehehend that it can be contemplated to deduct the fine from the proceeds of a sale, in such a case; for the fine is not fixed, and the marshal would not presume to settle it. Especial reference is made to the case of Hart & Hoyt v. The Mayor and City of Albany, 9 Wend. 571. [302] That was a case very analogous to this át bar, but was stronger, inasmuch as the whole of the proceeds of a sale were to be paid into the city treasury. Upon this last ground, the judgment of the District Court will be reversed.