
    
      Stephen Crosby vs. William Warren.
    
    Under the charter of the village of Walterhorough, the town council have the power to declare all hogs, whether they belong to residents or non-residents, running at large in the streets, nuisances, and authorize them to be seized and sold by the marshal.
    
      Before Wakdlaw, J. at Colleton, Fall Term, 1844.
    This was a sum pro. in trespass to recover damages for a seizure by the defendant, as marshal of the village of Walterborough, of a hog belonging to the plaintiff.
    It appeared that the plaintiff lived outside of the corporate limits of the village. That the defendant, under an ordinance of the Town Council, seized the hog, which was found at large in the streets, impomj^^^advgrtised and sold it. The ordinance under dared that it shall not be lawful formo^ro run atembe in the streets, and required the marsjf hi,4^i$^.jftn,d.¿.ijh-pound all such hogs, and after givffig^TWO Miyivtplm|c notice, calling on the owners to sjil them, unless the owners shall pay ce^airi‘®nnfe§''fficld^y the ordinance.
    The presiding Judge charged the jury thatxhe charter, as limited by the constitution, s:ave the Town Council no power to enforce its ordinances otherwise than by fine; and that he considered the forfeiture of the hog, without previous notice to the defendant, and adjudication of his excuse, as unwarranted by the charter, and contrary to the provisions of the constitution concerning the right of trial by jury. Yerdict for the plaintiff for $5.
    The defendant appealed, and now moved for a new trial.
    Henderson, for the motion,
    cited the charter of the village, 6 Stat. 28T ; Kennedy vs. Sowden, 1 McM. 323.
    
      Carn, contra,
    cited the 9 Act. Const, sec. 2, and said that the constitutional question was not raised in the case of Kennedy vs. Sowden.
    
   Curia, per

Evans, J.

In all the essential features of this case it is like the case of Kennedy vs. Sowden, 1 McMul. 323. In both cases the injury complained of was done by the town officer, in strict accordance with the town ordinance. The plaintiffs in both cases were not corporators, and the ordinance contains the same provision for seizing, advertizing and selling the hog, unless the owner should, within a limited time, assert his claim, and redeem his property by the payment of a fine. The only question is, whether the Act incorporating the Town of Walterborough gives as extensive power as the Act incorporating Columbia. If it does, then this case is identical with Kennedy vs. Sowden, and must be governed by it. By the 7 sect, of the Act of 1805, (8 Stat. 235,) the Town Council of Columbia have power “to make all such ordinances, rules and regulations, relative to the streets and markets of the said town, as they may think proper and necessary, and establish such by-laws as may tend to preserve the quiet, safety and good order of the inhabitants thereof; and may fix and impose fines and penalties for the violation thereof, which may be recovered in a summary way by the Intendant and Wardens or a majority of them.” By the 4th sec. of the Act of 1826, (6 Stat. 287,) incorporating the village of Walterborough, the Intendant and Wardens have power “to make and establish all such rules, by-laws and ordinances respecting the streets, ways, markets and police of the said village, as shall appear to them necessary and requisite for the security, welfare and convenience of the said village, or for preserving health, peace, order and good government within the same; and the said council may affix fines for offences against the bylaws and appropriate the same,” (fee. and by the 5 sec. they “shall have full power to abate and remove nuisances in said limits.” No fine to exceed fifty dollars, and to be recovered, if over twenty dollars, in the Court of Common Pleas, and if less may be recovered before the Intendant and Wardens or any two of them. The only material difference between the powers confered by these two charters is, that the Columbia charter contains the words fines and, penalties, whilst the Walterborough charter confers the power to impose fines. It does not appear to me this can make any difference in the result. The word penalty may be of more comprehensive signification than fine. Yet every fine, I suppose, is a penalty, and the words in the Columbia charter shew that a pecuniary penalty, or fine, alone is meant, for the word' “recovered” is applicable to that kind of penalty alone.

There is, then, no material difference in the powers granted by the two charters, and if the Town Council of Columbia may proceed in this summary way in abating what they may declare to be a nuisance, there can be no reason why the Town Council of Walterborough may not do the same, especially as the charter of the latter gives •expressly the power to abate and remove nuisances, whilst the power in the former is inferential only. The Act gives the power to pass by-laws on the subjects of streets, health and good order, subject to the restrictions that they shall not be inconsistent with the laws of the land, and Legislative revision. On these subjects, and with these restrictions, their power is unlimited, and if in their judgment the hog license to run at large be injurious to the streets or health of the citizens, they have a right to legislate on the subject, and pass laws for the removal or abatement of it, as a nuisance.

The power would be of little avail if they could operate on the owner only by fine. The executive officer would have to institute an inquiry, first, to ascertain the owner, and then summon him before the council to recover the fine, whilst the hog was still running at large, and doing those injuries which the ordinance was intended to prevent ; or the hog might have no known owner, or the owner might disclaim his title in order to avoid the fine; and in these, and a hundred other ways, the ordinance might wholly be eluded and the nuisance perpetuated. Similar ordinances havé been passed by most of the cor-, porate towns in this State, and especially in Charleston, both before and since the adoption of the constitution, without its being supposed to be any infraction of the 9th article of the constitution of this State, the meaning of which it is not thought necessary to discuss in this case,

The motion is dismissed.

Richardson, O’Neall, Butler, and Frost, JJ. concurred.

Wardlaw, J.

dissenting. There is a difference between abating a nuisance and declaring what shall be a nuisance. For the definition of a nuisance, and consequent, ascertainment of the subjects to which their power of abating or removing may be extended, the council must refer to the general law, just as they must, in requiring the performance of patrol duty, learn from the law what that duty is. In derogation of the ordinary rights of property, they may abate or remove any thing which by law is a nuisance, and in an action against them, proof that a thing was a nuisance, and was therefore removed or destroyed, would constitute their justification. But they have no power to declare that to be a nuisance which is not, or to dispense with other proof of the noxious character of a thing, by shewing that by an ordinance they had declared ■that all such things should be nuisances. If in this way a hog may be declared a nuisance, so might a slave, or any other article which, in the exercise of a capricious discretion, they might chose to consider so.

But in fact the term nuisance does not appear in the ordinance in question; and the attempt to justify the seizure of the hog was not rested upon any assumption or proof that it was technically a nuisance, but upon the efficacy of the ordinance which directed its seizure, and subsequent forfeiture, if certain sums called fines were not paid. An apprehension that hogs might become nuisances in vulgar phrase, that is, troublesome and disagreeable, formed no doubt the reason, and perhaps a very sufficient reason, why the council desired to prevent their coming within the corporate limits. Of that, as a matter affecting, or supposed to affect, the welfare and convenience of the village, the council were the judges, and their decision is just as binding, if it be erroneous, as it would be if it were correct, provided they adopted such means to effect their purpose as the charter authorized. Within the range of subjects to which their power of legislating extended, and not opposing the law of the land, their discretion is the rule; they may direct and may prohibit; but under what sanction? The only sanction is fine. They may, before themselves, and by such proceedings as they have directed, collect fines under twenty dollars, the Court of Common Pleas having jurisdiction as to all fines over twenty dollars. But no other mode of enforcing their ordinances is given, and by necessary implication, arising from the gift of this, all other modes are excluded. They cannot, otherwise than as ordinary majuistrates, imprison or impose other corporal punishment, for violation of an ordinance. They cannot act upon any thing specifically, except in abatement of a nuisance. They may ordain that an act shall not be done, — that a particular state of circumstances shall not exist — under penalty of a fine against him who shall transgress, or permit the transgession, to be collected, after inquiry, before two or more of their body, or before a court; but they cannot arrest the act, or prevent- the state of circumstances, by either a general or a special order, to be executed by themselves or their officer. For example, they might ordain that no garden should be cultivated within the village, and fine any one who should violate the ordinance, toties quoties ; but without shewing a garden to be a nuisance, they could not by their ordinance justify their officer in executing an order to pull down the fences, or plough up the soil, of any garden that might be cultivated. They might ordain that horses should not be fed at a wagon in a street, and fine for a violation; but they could not, without proof of a nuisance, justify a forfeiture of the horses, or removal of them.

It is plain that by the term fine, the charter contemplates a pecuniarly penalty, to be imposed by a court, or a portion of the council exercising judicial power, after investigation of a particular offence alleged, and not a sum to be demanded by an executive officer, without other warrant than his own judgment, as the condition for his deli very of an article seized of his own motion in the execution of a general ordinance. The order of at least two members of the council is essential to the collection of the smallest fine. But if, under an ordinance somewhat differently made, two members of council should direct a particular hog to be seized, advertised, and, as in this case, sold upon non appearance of the owner, and without notice to him, they would be declaring a forfeiture and not collecting a fine.

The case of The State vs. Simons et al. 2 Sp. 761, shews that the power of declaring and enforcing a forfeiture, without the intervention of a jury, cannot be given, even by an Act of the Legislature, to magistrates or courts, except in cases where, by the law of the land, such summary proceeding existed before the adoption of our State constitution, That a power similar to the one claimed by the council of Walterborough, had, before the adoption of the constitution, been exercised by the City Council of Charleston, is, I believe, true; but that that circumstance authorizes the extension of like power to other corporations, does not appear to me to be at all plain. Without examining that question, however, I rest my opinion here upon what seems to me to be the plain provision of the charter of Walterborough, that its ordinance may be enforced by fine, and not otherwise.

The charter of Walterborough may be similar to that of Columbia, but the question which I raise was not at all considered in the case of Kennedy vs. Sowden. That case held that persons not corporators were subject to the ordinances of a corporation, but it decided nothing else.  