
    BAUMGARD vs. MAYOR ET AL.
    ÍÜASTEItN DlST.
    
      January, 1836.
    APrEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS.
    Where property is seized for a violation of a city ordinance, although the seizure is lawful in its commencement, yet if the city authorities fail to pursue the requisites of the law, in advertising and disposing of it, the acts of the officer making the seizure will be considere'd as a trespass, ab initio, for which his constituents are responsible.
    In this case the plaintiff claims an omnibus and pair of horses, which he alleges have been illegally and forcibly taken from his possession, by the agent of the corporation of New-Orleans, and by them illegally detained. He claims one thousand dollars in damages, for the property seized and the loss sustained thereby, or the return of the carriage and horses, and one hundred dollars in damages for their illegal seizure and detention.
    The corporation, by its attorney, pleaded a general denial, and averred, that if the carriage and horses had been arrested / ° as alleged, it was for lawful cause, and not illegal, as alleged by the plaintiff.
    Upon this issue the parties went to trial.
    The evidence showed, that the plaintiff’s omnibus and horses were arrested by the commissioner appointed by the corporation to inspect carriages, drays, &c., as running in contravention of a city ordinance, approved December 1st, 1828, the first and second articles of which require every person running a coach, &c., within the limits of the city, to take out a license; the third article prescribes a penalty of ten dollars for each contravention of the first article, by running without a license; the fourth article says: “The mayor shall cause to be stopped and carried before a competent tribunal every carriage found running without a license, or without numbers; the magistrates are to detain said carriages and horses drawing the same, and send 'them to a place of deposit, designated by the mayor, there to remain fifteen days subject to the claim of their proprietors, causing in the mean time full notice to be given thereof in the newspapers. If not reclaimed at the end of fifteen days, the magistrates are duly authorised to cause the objects seized to be sold conform-ably to law, and the proceeds applied to the payment of all fines, penalties and costs incurred; the surplus, if any, to be returned to the owners,” &c.
    The 6th article of this ordinance requires “ all carriages designated in the first article, to be numbered with figures on a tin plate,” &c. See City Laws, page 71.
    It appeared the plaintiff had failed to take out a license and number his carriage as required.
    The driver of the carriage deposed that it was seized, together with the horses, on the 2d of February, 1835, while standing in Canal-street, by a commissioner of the city police and carried to the City Hall. He estimates the carriage to be worth six hundred dollars and the horses one hundred dollars.
    
      Lalande, the commissioner, deposed tliat he arrested the carriage and horses for want of a license, and number on the carriage, as required by the city ordinance. The horses were tendered to the driver after taking the carriage to the mayor’s office, but he refused to receive them. The carriage was then sent to a place of deposit, and the horses to a livery stable.
    The seizure took place on the 2d of February, and on the • 5th the plaintiff commenced this suit by filing his petition. There were no steps taken to advertise and sell the property seized. No proof of any demand having been made on any of the agents of the corporation for the carriage and horses before suit was instituted. An agent of the plaintiff after-wards demanded the horses from the livery stable keeper, but was informed he must pay the expenses first.
    The parish judge considered the seizure as having been lawfully made in the first instance, and no proof being made of any demand and offer to pay the penalty and costs incurred,judgment was rendered in favor of the defendants. The plaintiff appealed.
    M‘Millen, for the plaintiff.
    We contend that there is error in the judgment of the Parish Court, because the ordinances of the City Council do not authorise the corporation to take possession of plaintiff’s property except by the intervention of justice. See Digest of City Ordinances, page 71.
    2. If the city ordinances contemplated such proceedings, they are illegal and unconstitutional. No person can be deprived of his property, except by due course of law. Amendments to Constitution of the United States, section 25.
    3. The corporation can in no instance, for a violation of its ordinances inflict a fine or penalty beyond one hundred dollars ; here they have taken property, inflicted fines, and caused damages to the amount of several thousand dollars.
    4. The person arresting the horses and carriage, was neither a commissary, a member of the city guard or police officer.
    
      
      Eustis, for the corporation,
    contended, that the plaintiff’s carriage was in flagrant violation of the city ordinances, being without a license and without a number. City Ordinance of 1828, articles 1 and 6. Digest of Ordinances, pages'll and 73.
    
    2. That therefore the arrest of the carriage and horses was lawful under the ordinances. Ibid., article 4.
    
    
      3. That the defendants were not bound to institute any legal proceedings in relation to the violation of the ordinance by plaintiff. They could waive it or remit the fine. Digest of City Ordinances, page 301.
    4. That the carriage and horses were taken to the proper place. “ That the police officers and city guards be autho-rised to arrest and keep in their custody all carts, drays and other carriages not bearing an apparent number, as required by the ordinance relative thereto, and that said carts, drays or other carriages shall be brought before the principal and there detained until their owners shall claim them.” Digest of Ordinances, page 301. See also, Ordinances cited, art. 4, page 73.
    5. The owner never having claimed them before the suit, there was no fault on the part of the defendants — their officer-having taken the carriage before the principal, as is proved by the testimony of his own witnesses, and if the plaintiff chose to leave it there, it is his own act Volenti non fit injuria.
    
    6. Every act proved to have been done by the agents of i defendants is in conformity with the ordinances of the
    city,'the,legality of which is indisputable under the law of ■the legislature of March 10th, 1834, section 3. See Laws of 1834, page 137.
   ' 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 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. ' .  