312 impounding; injubies on highways, etc. 



82. The Eight to Impound — A statute or ordinance author- 

 izing the impounding and sale of animals running at large is 

 not unconstitutional.*' And where a town is authorized to 

 enact ordinances restraining animals from running at large, 

 this includes the power to provide for impounding and sale.'" 

 But the office of a pound-keeper is a public office and a mu- 

 nicipal corporation has no power to appoint one nor to 

 create a forfeiture of the property unless the authority is 

 specially given in the charter." A statute requiring owners 

 to confine their cattle at night does not justify impounding 

 where this is not done.^^ And a statute providing that the 

 owner of enclosed premises might impound stock trespassing 

 thereon and that damages might be assessed by three free- 

 holders and the stock sold in payment thereof, was held un- 

 constitutional, no public pound being provided for and the 

 interested party being made sole judge of the trespass.^^ 

 Replevin will not lie against a constable impounding a cow 

 running at large upon the street in violation of a valid or- 

 dinance, he being an authorized officer.^* And where an 

 ofificer found two persons driving hogs to the pound and as- 

 sisted them, it was held that he was not unlawfvdly detaining 

 the hogs, having found them at large before they were im- 

 pounded.^^ In a New York case it was held that an or- 

 dinance authorizing a street inspector to drive animals to the 

 pound and to hire assistance, does not authorize anyone but 

 the inspector and his assistants under his immediate direction 



"Dillard v. Webb, 55 Ala. 468; Burdett v. Allen, 35 W. Va. 347; Rose 

 V. Hardie, 98 N. C. 44; Rood v. McCargar, 49 Cal. 117; Coyle v. McNabb, 

 4 Tex. App. Civ. Cas. 487. 



'° Folmar v. Curtis, 86 Ala. 354; Whitlock v. West, 26 Conn. 406. 



But see Johnson v. Daw, infra. 



"White V. Tallman, 26 N. J. L. 67; Slessman v. Crozier, 80 Ind. 487. 



And an authority to impose a "fine for forfeiture" does not authorize 

 a forfeiture: Johnson z'. Daw, 53 Mo. App. 372. 



" Oil V. Rowley, 69 111. 469. 



" Armstrong v. Traylor, 87 Tex. 598. 



See also the cases cited in § 80, supra. 



" Mcjunkin v. Mathers, 158 Pa. St. 137. " Friday v. Floyd, 63 111. 50. 



