
    Joseph Rosebaugh v. James Saffin, Marshal of the City of Cincinnati.
    An ordinance of the city council of Cincinnati, sequestering the property of an individual without notice, is invalid.
    The power given by the charter of the city to impose a forfeiture does not confer the right to seize and sell without any previous proceedings.
    This is an action of replevin, from the county of Hamilton.
    
      The declaration charges the defendant with detaining the plaintiff’s hogs.
    The defendant justifies under an ordinance of the city council of Cincinnati. A verdict was taken for the defendant, and the plaintiff moves for a new trial.
    82] *The ordinance of .the city provides: “It shall, be unlawful for hogs, of any size or description, to be let loose and run at large in the street, lanes, alleys, or commons within the city; . . . it shall be the duty of the marshal to cause all hogs, of whatever size or description, that shall be found running at large in the streets, lanes, alleys, or commons of the city, to be taken up, im- ' pounded, and sold to the highest bidder, within three days after being impounded, having first caused the time and place of such sale to be proclaimed through the streets and by handbills, and to pay into the city treasury the proceeds of all such sales, after paying the necessary expenses.”
    Three sections of the charter are relied on, as giving the power to make this ordinance:
    Seo. 8.. “ The city council shall have power ... to impose fines, forfeitures, and penalties on all persons offending against the laws and ordinances of said city, and provide for the prosecution, recovery, and collection thereof.”
    Sec. 12. “The city council shall have power, and they are hereby authorized, to require and compel the abatement and removal of all nuisances within the limits of said city, under such regulations as shall be prescribed by ordinance.”
    Sec. 13. The city council “ shall have power, whenever the public convenience or safety shall require it, to prohibit hogs, cattle, horses, and any other description of animals from running at large in the streets, lanes, alleys, commons, and other public places in said city.”
    S. M. Hart, for the plaintiff:
    The question here involved rests upon the proper construction of section 8 of the charter giving to the corporation power to impose fines, forfeitures, and penalties. The general power to create forfeitures is granted, but the charter nowhere defines the objects over which it may be exercised, nor the manner in which it may be carried into execution. .It is left, then, to construction, and in all such cases, courts of justice confine corporations strictly within their limits. 2 Kent *Com. 299; Broughton v. Manchester [33 Water Works, 3 Barn. & Ald. 1; 5 Eng. Com. Law, 215.
    The charter, then, is to receive a reasonable construction ; and. if the corporation undertake to exercise this power, they must do it without prejudice to the rights of the citizens. If they impose a forfeiture, they must impose it upon the person offending against their ordinance, and they must provide some mode of proceeding that will give him a day in court to answer the charge against him. To seize a man’s property, in the very town where he lives, and sell it, and convert the proceeds to another’s use, without any manner of notice to the owner, is an assumption of authority not to be tolerated. Olin v. Chapman, Wright, 716; Cotter v. Doty, 5 Ohio, 395.
    E. Woodruff, for the defendant:
    The legislature, in enacting the charter, had in view the peculiar necessities of a large city, in respect to the means of promoting its comfort and safety, and have imposed the duty of enforcing these matters upon the city council, and vested them with full discretionary powers over the subject. The propriety and necessity of such an ordinance, in a populous city, must be manifest. Swine running at large in such a place is not only highly offen-. sive to the citizens, but often dangerous. The remedy for the evil should be prompt and effectual, so as to prevent future grievances from the same cause.
    The council considering the evitas a serious one, affecting the comfort and safety of the citizens, enacted the ordinance now in question. The danger and inconvenience constantly occurring in the public streets, the dislocated limbs of children and others who had been attacked by these animals, or prostrated by their violence, were not to be passed unnoticed, and, in obedience to the demands of the citizens, and in the discharge of their duties as trustees of the corporation, they passed the ordinance. Tie wing the evil as a nuisance, they ordained that it should be unlawful, after a time therein specified, for hogs of any size or description to be let loose and run at large in the *streets, etc., and made [34 it the duty of the city marshal to cause them to be taken up, impounded, and sold to the highest bidder within three days after being impounded, having caused the time and place of such sale to be proclaimed through the streets and by handbills.
    That they had a right to abate the evil as a nuisance is obvious, from the tenor of the charter as well as from the necessity of the case. What would not be considered a nuisance in the country, might, in a populous city, be considered a very serious one, and it is not easy to imagine a greater grievance than that which the ordinance in question was designed to remove, and so it has been,, considered in many of the older cities of the Union, in some of which the authority is given to every person to shoot down swine whenever they are found running at large; and in other places they are immediately seized and delivered over for the use of the poor.
    Every citizen being held to a knowledge of thelaws and ordinances of the community in which he lives, if he knowingly or negligently violates them, he ought not to complain when the penalty is enforced. In the present instance this position may be applied with peculiar force, for when a person allows prohibited animals to go at large, or, through negligence, to escape, he may well be considered as having abandoned them to the public anthorities to be dealt with according to law.
    The case of Cotter v. Doty, 5 Ohio, 393, is an authority in support of the positions for which we contend. That decision was made under the charter of January 10, 1815, in which no express power to create a forfeiture was given. The charter of March 1, 1834, upon which the decision of the present question mainly rests, gives the express power to create forfeitures, being in the same language as that in 25 Ohio L. 40, in which the court have said “this power is expressly granted.” Taking it as conceded, that the power exists, can it be denied that it has been exercised in a manner highly beneficial to the citizens?
    When property, subject to forfeiture, is in the actual custody 35] *of its owner, it might not, perhaps, be admissible for an officer of the law to enter upon the premises of such owner and seize the same, without warrant and trial; but it appears to me there is a manifest distinction between such case and the one now under consideration, where a salutary police regulation is sought to be enforced in a summary manner against the offending object found in the public streets. Whether then, we view the case in the light of a forfeiture, or as a moans of eradicating a public nuisance, the ordinance may be considered a valid one.
   Grimke, J.

Thecase presents thisquestion : Is this ordinance authorized by the act of incorporation ? The only parts of the city charter from which the power to pass it can be derived, are sections 8,12, and 13. In section 8, power is given to impose fines, forfeitures, and penalties on all persons offending against the ordinances, and provides for the prosecution, recovery, and collection thereof. Sectson 12 authorizes the abatement of nuisances, and section 13 gives power to prohibit all hogs, etc., from running at large. If this last section had been omitted, there would, perha-ps, have been force in the argument, that it was intended to embrace the evil complained of, in this instance, under the head of nuisances. But section 13 absolutely excludes this inference, and by its precise and definite phraseology withdraws the mischief, now complained of, from the head of nuisances. Does section 8, then, which authorizes the imposition of fines, forfeitures, and penalties, give the power which has been exercised in this instance? It is claimed that it does, and that the true signification of the word forfeiture, shows that the city council were justified in the ordinance which they passed. The term forfeiture is, undoubtedly, distinguishable from the term fines, inasmuch as it may mean the sequestration of property, and the other term does not necessarily carry that signification. But admitting this were the true and invariable line of distinction between the two classes of punishment, it does not, therefore, follow that a forfeiture *can be [38 enforced in the summary way in which this ordinance undertakes to enforce it. Although it is a proceeding in rem, yet all proceedings of this nature are so conducted as to give, if possible, notice to the party interested. The hogs or horses of an individual may, from some inevitable accident, or the act of God, be found in the streets; it would be manifestly unjust, unless some overruling necessity should say so, to impound and sell without giving an opportunity to the party to explain the circumstances. If the construction of the clause in the charter were only doubtful, such construction ought to be put upon it as is most favorable to the rights of the citizens. In Fairfax v. Hunter, 7 Cranch, 603, where it was argued that the legislature of Virginia might, by a simple enactment, confiscate the property of an alien, it was answered, that admitting that it might, yet it would not be presumed, 'where there was any room for an opposite presumption, that it was intended to dispense with the accustomed mode of proceeding. Indeed, in every instance in which a forfeiture of property is worked, the forfeiture is consequential upon some judicial proceeding. The city corporations which have grown up in modern times are of infinite advantage to society; they bind men more closely together than does any other form of political association. But that which most remarkably distinguishes them from the close corporations which formerly existed, is the general spirit of freedom which has been breathed into them. More especially is this the case with town corporations in America, which are as different Rom those of England as the latter are Rom similar corporations in Scotland and Holland. Occasionally, however, we see symptoms of the old forms showing themselves ; the maxim, that the safety and well-being of the people are the supreme law, sometimes persuades those who are invested with authority that they may be permitted to pursue so noble an end, by any means short of tyrannical. It is a great improvement in legislation to pursue the good of the majority, but the true end at which American institutions aim, is to consult the rights and interests of all conditions of men. There was no necessity for the summary pro-37] cess which was ^directed by the ordinance of the city of Cincinnati of June 15, 1836. The mischief, and it is undoubtedly one, which was .intended to be guarded against, might be prevented as effectually by a different proceeding. Unless there be a special custom, or express legislative authority for it, the penalty of a by-law can not be enforced in this way. There can be no custom in this instance, and the legislative authority which is contained in the charter, does not necessarily or naturally import the exercise of the power. The ordinance commands the marshal to seize and impound the property, and, then, without any reserve, without any notice to the party, by means of which he might be enabled to exculpate himself, directs it to be sold, and the proceeds to be placed in the city treasury. Such an ordinance is as contrary to the spirit of the charter as it is alien from the general genius of our institutions.

New trial granted.  