Baumgard v. Mayor

' Mathews, J., delivered the opinion of the court. This is an action in which the plaintiff seeks to recover from the corporation, a carriage called an omnibus, and a pair of horses, or their value, in consequence, as he alleges, of an illegal seizure and detention of this property, by an officer acting for the body politic. The answer to the complaint, contains a general denial and justification. Judgment was rendered for the defendants in the court below, and the plaintiff appealed. iy ¡s 7W1 sure is lawfi ^^me\ „ . of the law in adverti-Snfofiuheacts of, ,the officer making the sei-zurewffl be considered as a trespass ab initio, for "1lieh his °on-stituenta are responsible. The. seizure was made under an ordinance of the city, ¡Y relating to all kinds of carriages used to carry passengers or freight for hire, and was perhaps lawful in its commencement ; but the steps taken in pursuance of the seizure, are alleged to have been illegal and without authority, the effect of which has been arbitrarily to deprive the plaintiff of his property, without any legal or just cause. The ordinance relied on, in justification of the proceeding adopted by the corporation, was passed on the 30th October, 1824, and the property seized comes clearly within the purview of the first article. The fourth article directs explicitly the disposition which must be made of property seized and stopped under its authority. It is made the duty of the officer seizing, to carry the things seized before a competent tribunal, to be sent to a place of deposit, designated by the mayor; notice is required to be given of these proceedings, and if no claim be put in on the part of the proprietor within fifteen days, the magistrate is authorised to cause the objects thus arrested-to be sold, and appropriate the proceeds to the payment of any fine which may be imposed, free of licensé and taxes, and if there be any surplus it is to be placed in the treasury of the city, subject to the order of the proprietor. It does not appear that any of these measures were pursued in the present instance, and as the provisions of the ordinance are restrictive of the free use of property by owners-jfrjffl® such a short handed mode of redressing the viol*tQj^¥'Tne law, all the means calculated to relieve a proprietor ought be shown to have been fully complied with. It , 0 , , urged m argument as an excuse for not having acted stnctJjjjtg in conformity with the requisites of the ordinanceVt; plaintiff was so prompt in endeavoring to recover his ... .r 1 . 1 . . , , , , 1 by immediately commencing suit, that the defendants had not time' to pursue the regular course pointed out to them. We are unable to assent to. the force of this argument, ,, , , ,. , ~ ,. becausethe law made it the duty of the officer who seized to carry the property directly before a competent tribunal; and besides it would have been very easy for the defendants in . . , ... answer to the plaintiff’s action to have insisted on proper [124] redress for the violation of the ordinance, as a condition _ on which the property would be restored to the owner. Having failed in the performance of all these things, the act of their officer may well be considered as a trespass ab initio, for which his constituents are responsible. It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be avoided, reversed and annulled. And it is further ordered, adjudged and decreed, that the defendants and appellees do deliver to the plaintiff and appellant the carriage and horses which were seized and arrested by their officer; or in default thereof that they pay to him the sum of eight hundred dollars; and it is moreover ordered, that this cause be remanded to the court below to cause the damage which the plaintiff has suffered, (if any he has suffered by the misconduct of the defendants) to be assessed, they to pay the costs in both courts which have already accrued. ' .