with two boys he had to assist him in hunting | that the inclosure attached to the city hall be, for and driving in stray cows, were out on the street, and found said cow of plaintiff in the public street, and that they drove her to the city pound, and fastened her therein that night, and kept her in said pound until taken away by the constable the next day; that on the evening of the 7th of August the plaintiff came and demanded his cow, claiming her, and defendant demanded his fees, etc, allowed him by the city ordinance, which at that time amounted to $2, and the plaintiff refused to pay the same, and thereupon the defendant refused to give up the cow, and the plaintiff brought said action before Justice Hall, and upon his order the constable took the cow from defendant; that the said charges of $2 are still unpaid; that upon the trial before the said justice his decision was that the said city ordinance was unconstitutional and void, and he gave judgment for the plaintiff, from which judgment the said defendant appealed; that the said lot in which said cow was impounded was the city pound, made so under and by virtue of an ordinance adopted June 30, 1887; and this was all the evidence adduced.

until otherwise ordained by the council, constituted the public pound for the impounding of animals therein subject to be impounded. It also provides in section 2 that "it shall be unlawful for any person being the owner or having charge of any cow, calf, or ox to allow the same to run at large between sunset and sunrise in any of the streets, lanes, alleys, or commons of said city below the Elk and Piedmont roads:" and section 4 provides: "It shall be the duty of the pound-master, on view or information, forthwith to take up all or any such animals running at large as aforesaid, and shut up the same in the public pound," there to be retained and fed until disposed of as thereinafter provided. Section 5 provides that the owner shall be notified forthwith; and section 6 provides that, in case the owner shall not within forty-eight hours after giving said notice appear and prove his right to such animal, the pound-master shall make his return to the mayor, setting forth the number and kind of animals taken up, time when taken, owner of the animal, if known, the fact of giving the notice, and that forty-eight hours have passed The counsel for the defendant in error con- since such notice was given or posted, and that tends that the ordinance of the city of Charles- the animal or animals still remain in the pound ton under which the property of said defendant unclaimed. Section 7 provides that the mayor in error was seized and impounded is void shall then direct the sergeant to advertise and because (1) there is no express authority con- sell said animals, and prescribes the mode of ferred by the charter, either in chapter 47 of advertisement; and further directs that the the Code or the special charter of the city of sergeant shall make return to the mayor of his Charleston; that the power to impound and proceedings, and shall pay all surplus money sell animals must be expressly conferred, and arising from said sales to the treasurer; and a general authority given to prevent animals section 9 provides that "any person being the from running at large is not sufficient. The owner. . . of such animal," who shall within first section of chapter 47 of the Code provides one year show to the mayor that he was such that "a city, town, or village heretofore estab-owner, shall have any surplus in the hands of lished, (other than the city of Wheeling,) may exercise all the powers conferred by this chapter, although the same may not be conferred by their charter, and that, so far as said chap ter confers powers on the municipal authorities of a city, town, or village, other than said city of Wheeling,) not conferred by the charter of any such city, town, or village, the same shall be deemed an amendment to said charter," and section 28, which prescribes the powers and duties of the council, provides, among other things, that such council shall have power therein "to prevent hogs, cattle, horses, sheep, and other animals and fowls of all kinds from going at large in such city, town, or village;" and section 29 of said chapter provides that, "to carry into effect these enumerated powers and all others conferred upon such city, town, or village, or its council, by this chapter, or by any future Act of the Legislature of this State, the council shall have the power to make and pass all needful orders, by-laws, ordinances, resolutions, rules, and regulations not contrary to the Constitution and laws of the State, and to prescribe, impose, and enact reasonable fines, penalties, and imprisonments in the county jail. Such fines, penalties, and imprisonments shall be recovered and enforced under the judgment of the mayor of such city, town, or village or the person lawfully exercising his functions." The ordinance of the city of Charleston in reference to the public pound was put in evidence in this case, and the first section thereof provides

the treasurer arising from the sale of such animal paid over to him, said surplus to be paid on the order of the council. These ordinances. enacted under the power so to do, conferred by section 29 of chapter 47 of the Code, appear to me to confer express authority upon the pound-master, acting in connection with, and under the supervision of, the mayor, to impound cattle found running at large in the city, and hold them until the fees and costs are paid, or to sell the same after notice to the owner, and, after deducting said cost and fees, to pay the residue to the owner when he asserts his claim thereto. It is true that Dillon on Municipal Corporations (vol. 1, § 150) states that "power to impound and forfeit domestic animals must be expressly granted to the corporation, and that laws or ordinances authorizing the officers of the corporation to impound, and, upon taking specified proceedings, to sell the property, are penal in their nature, and, where doubtful in their meaning, will not be construed to produce a forfeiture of the property, but rather the reverse:" and then proceeds to state that the powers conferred must be strictly followed in order to constitute a valid sale of such animal. In the case under consideration, however, no sale took place; the animal was only taken up and impounded, and, under section 28 of chapter 47, providing that the council of such city, etc., shall have power therein to prevent cattle from going at large therein, taken in connection with section 29 of the same chapter, authorizing the council to make and pass all

needful orders, by-laws, ordinances, and resolutions, etc., not contrary to the Constitution and laws of the State, to carry into effect said power, the impounding officer, under the provisions of the ordinances above mentioned, would surely have the authority to take up and impound such animal found running at large at night in the streets of the city.

was, was so taken without due process of law, and refers to Cooley, Const. Lim. pp. 363, 364; but we find the author says: A statute which authorizes a party to seize the property of another without process or warrant, and to sell without notification to the owner for the punishment of a private trespass, and in order to enforce a penalty against the owner, can find no justification in the Constitution." Cattle running at large at night in a public street of a city or town cannot, however, be regarded as committing a private trespass. Section 5 of the ordinance proven in this case provides that the pound master shall forthwith notify the owner, etc., and section 7 of the same ordinance provides that the mayor shall direct the sergeant to advertise and sell, etc. Thus it appears that the pound master's duty is to take up the animal, notify the owner, and report the facts to the mayor; and when a sale is to be made it is made by the sergeant under the direction of the mayor, who, by section 39 of chapter 47 of the Code, is ex officio a justice and conservator of the peace within the limits of the city. In the case of Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616, the court holds in the second point of the syllabus as follows: "The court suggests the difficulty and danger of attempting an authoritative definition of what it is for a State to deprive a person of life, liberty, or property without due process of law, within the meaning of the Fourteenth Amendment, and holds that the enunciation of the principles which govern each case as it arises is the better mode of arriving at a sound definition;" and in point 3 the court says: "This court has heretofore decided that due process of law does not in all cases require a resort to a court of justice to assert the rights of the parties against the individual, or to impose burdens upon his property for the public use,"-citing Murray v. Hoboken Land & Imp. Co. 59 U. S. 18 How. 272, 15 L. ed. 372, and McMillen v. Anderson, 95 U. S. 37, 24 L. ed. 335.

There were no steps taken in this case, so far as the evidence discloses, to sell the cow that had been impounded, and the question raised by the action of detinue was simply whether the animal was unlawfully detained by the pound-master at the time said action of detinue was instituted. The evidence shows that the cow was impounded on the night of the 6th of August; that the plaintiff demanded her on the 7th, and, said demand being refused unless the charges were paid, said plaintiff at once brought his action of detinue; so that the only question really presented for our consideration is whether the cow was lawfully detained at the time said action was brought. As is suggested by counsel for the plaintiff, however, our Code, chap. 61, provides for taking up estrays found upon the land of a person, and, after giving the notice therein prescribed, if the owner does not appear in four weeks, the person taking up such estray may have the same appraised, as therein provided, by three freeholders, who shall return their certificate with the warrant to the clerk of the county court, who shall record it, and post a copy at the front door of the court-house on the next court day, and, if the owner of such property shall not appear in thirty days after said copy has been so posted, and the valuation thereof be under $15, or if such value be as much as $15, and the owner does not appear after the said certificate has been published as aforesaid, and also three times in a newspaper published nearest to the place where such property was taken up, it shall belong to the owner of the land on which it was taken, and the former owner may at any time recover the valuation money after deducting the fees In 1 Dill. Mun. Corp. 481, note 2, we find and charges. This has been the law of Vir-" an ordinance directing the impounding and ginia and of this State for many years, and, so sale of animals for costs and expenses," but far as we know, no question has been raised in not imposing a penalty, held valid under a regard to the constitutionality or validity of charter authorizing the impounding and sale the law. Again, it is an every day occurrence "for any penalty imposed by any ordinance or in the cities of our State that men are arrested regulation and all costs, "-citing Ft. Smith v. for disorderly conduct and violation of the city Dodson, 46 Ark. 296, 55 Am. Rep. 589; that ordinances, and, if found guilty, they are not "such an ordinance is valid and takes effect only locked up, but are compelled to work on whether the owner resides in the town or not," the streets to pay their fines, and thus their citing Rose v. Hardie, 98 N. C. 44. labor, which is their property as much as anything else they have, is taken from them to discharge the penalty. Under the common law the right of distress damage feasant existed, and the cattle found trespassing were liable to distress, and it was held in the ease of Anscomb v. Shore, 1 Taunt. 261, that no action lies against one who distrains cattle damage feasant for impounding them, instead of accepting compensation for the damages tendered before the cattle were impounded. See 6 Wait, Act. & Def. chap. 17, p. 639, where the authorities are collated upon this subject, so that this mat-power of control over the keeping of live-stock ter of impounding cattle is not a mere creature of the statute, but existed at common law.

Counsel for the defendant in error contends that the property taken, as the cow in this case

We also find that Tiedeman, in his valuable work on Limitations of Police Power, says on page 506: "The clash of interest between stock-raising and farming calls for the interference of the State by the institution of police regulations; and whether the regulations shall subordinate the stock raising interest to that of farming, or vice versa, in the case of an irreconcilable difference, as is the case with respect to the going at large of cattle, is a matter for the legislative discretion, and is not a judicial question. In the exercise of this general

the State or municipal corporation may prohibit altogether the running at large of such animals, and compel the owners to keep them within their own inclosures, and provide as a

remedy for enforcing the law that the animals | cess of law." Also, in the case of Wilcox v. found astray shall be sold, after proper notice to the owner, and time allowed for redemption, paying over to the owner the proceeds of sale, after deducting what is due to the State in the shape of penalty."

Hemming, 58 Wis. 144, 46 Am. Rep. 625, it was held that "a city charter and ordinances may, as an exercise of police power, provide for the taking up and impounding of animals found running at large in the public streets, The power granted by the Legislature to the and for selling them to pay the expenses of cities and towns of our State to prevent cattle impounding, etc., without judicial inquiry or and other animals from running at large in determination; and such provisions will not be their streets is a police power, intended for the unconstitutional, as authorizing the forfeiture, protection of the citizens, and to enable them condemnation, or confiscation of property to enjoy the streets and public thoroughfares without due process of law or without comand to prevent depredations on yards and gar-pensation." Judge Cooley, in his work on dens by breachy stock during the night, when Constitutional Limitations, p. 588, says: "So the same are unwatched and unprotected. | beasts may be prohibited from running at There is necessity for immediate action when large under the penalty of being seized or sold," cattle are found upon the public street at night.-citing numerous authorities in support of the As is frequently the case, the officer may be proposition. And Sedgwick on the Construcignorant as to the ownership of the cattle thus tion of Statutory and Constitutional Law, p. found on the street, and, in order that the ob- 435, under the head of "Police Powers," says: ject of the ordinance may be made effective, "The clause prohibiting the taking of private he must proceed at once, and arrest the ani- property without compensation is not intended mal, without waiting for any judicial investi- as a limitation of the exercise of those police gation as to whether the seizure may be lawful. powers which are necessary to the tranquillity If it were otherwise, and the officer waited un- of every well-ordered community, nor of that til a judicial investigation should take place, general power over private property which is the animal would be gone, and the ordinance necessary for the orderly existence of all govwould prove abortive and inoperative. In or ernments;" and in a note we find that "sumder, then, to enforce the ordinance, such cattle mary statutory proceedings for the seizure, demust be impounded; they must also be cared tention, and sale of stray animals running at for and fed, and, if no owner comes for them, large have been sustained,"-citing numerous they must be sold, to use a common expres- authorities. Numerous other authorities sion, "to prevent them from eating their heads might be cited in support of the validity of such laws and ordinances, but, as we think, enough have been mentioned to show how said statutes and ordinances are regarded, and how the question is considered by the elementary authors upon the subject and by the highest courts of the different states, at least to indicate the weight of authority so far as I have had an opportunity of examining them upon the subject. There can be no question that the city of Charleston, under its charter as amended by chapter 47 of the Code, and the ordinances which were in evidence, had the right to take up and impound the cow of the defendant in error, which was all that had been done at the time the owner took possession of her by giving the required bond in his action of detinue; but, if the defendant in error had not seen proper to bring said action, and had allowed said cow to be sold after the requirements of said ordinance had been complied with, in my opinion a sale of said animal under the provisions of said ordinance, and a disposition of the proceeds of said sale as therein directed, would have violated no provision of the Constitution.

off."

This question has been before the courts in the State of New York, and in the case of Cook v. Gregg, 46 N. Y. 439, the court held that the provisions of the Acts authorizing the seizure of animals trespassing upon private premises are constitutional; that "the Act does not impose a penalty for the trespass, but simply prescribes and fixes a remedy therefor; and remedies are clearly within the peculiar province of legislation. The temporary seizure and detention of property as authorized by the statute, awaiting judicial action, is not violative of the provision of article 1, section 6, of the Constitution, directing that no person shall be deprived of property without due process of law." See also Hard v. Nearing, 44 Barb. 472. Also, in the case of Campau v. Langley, 39 Mich. 451, 33 Am. Rep. 414, it was held that "a statute allowing animals running at large in a public highway to be taken by any person and publicly sold by a public officer, and providing that, after the expenses of the proceedings and of keeping the animals were paid, the remainder should he paid over to the owner, who should be allowed a certain time within which to redeem them, is to remedy a public grievance, and is not unconstitutional, as devesting property rights without due pro

14 L. R. A.

For these reasons the judgment complained of must be reversed, and the defendant in error must pay the costs, and the cause is remanded to the Circuit Court of Kanawha County.

NEW JERSEY COURT OF ERRORS AND APPEALS.

Martha C. BENNETT et al., Appts.,

v.

Alonzo VAN RIPER et al., Impleaded, etc.,
Respts.

(47 N. J. Eq. 563.)

The words "related to" in a provision permitting persons related to a member of a benefit society

to be named as beneficiaries, include relatives by affinity as well as by blood.

(November Term, 1890.)

and other lexicographers, as a relationship by consanguinity or affinity.

Darrow v. Family Fund Soc. 6 L. R. A. 498, 116 N. Y. 537; McMaster v. North America Ins. Co. 55 N. Y. 222, 14 Am. Rep. 239; Dilleber v. Home L. Ins. Co. 69 N. Y. 256, 25 Am. Rep. 182.

When its terms permit more than one construction, that one will be adopted which supports its validity.

Coyne v. Weaver, 84 N. Y. 386; Hitchcock v. Northwestern Ins. Co. 26 N. Y. 69; Griffey v. New York Cent. Ins. Co. 1 Cent. Rep. 528, 100

APPEAL by defendant Martha C. Bennett NY. 417, 53 Am. Rep. 202; Varick v. Crane,

and her husband from a decree of the Chancery Court advised by Vice-Chancellor Van Fleet entered in an interpleader proceeding instituted by the Supreme Council of Chosen Friends to determine to whom a sum due on a benefit certificate issued to Alonzo Van Riper, Sr., was payable, which rejected the claim of Mrs. Bennett. Reversed.

The facts sufficiently appear in the opinion. Mr. Samuel Kalisch, for appellants: It is true that the word "relations," when found in a will or the Statutes of Distribution, has been construed to mean relations of blood only, because from the indefinite extent of the word "relations" it has been found necessary to narrow it by a construction, confining it to the next of kin, under the statute.

Smith v. Campbell, 19 Ves. Jr. 403. Where the reason of the rule ceases, the rule itself ceases.

Where technical terms are not employed in a contract, the law presumes that the parties to the contract entered into it, upon the common and popular meaning of the words. The words "related to" are certainly not technical in any sense. They bear the popular meaning ascribed to them by Webster and Worcester

NOTE.-Who are relatives or relations.

By blood.

The term "relations," in a will, includes only those persons who would take according to the Statute of Distributions. Thomas v. Hole Forrest, 251; Roach v. Hammond, Prec. in Ch. 402; Anonymous, 1 P. Wms. 327: Edge v. Salisbury, Ambl. 70; Green v. Howard, 1 Bro. Ch. 31; Widmore v. Woodroffe, Ambl. 636; Rayner v. Mowbray, 3 Bro. Ch. 234; Doe v. Over, 1 Taunt. 263; Stamp v. Cooke, 1 Cox, Ch. 234; Smith v. Campbell, 19 Ves. Jr. 400; Varrell v. Wendell, 20 N. H. 431.

"Relations" in a will, mean next of kin. Pope v. Whitcombe, 3 Meriv. 689; Harding v. Glyn, 1 Atk. 468; M'Neilledge v. Barclay, 11 Serg. & R. 103. This is so unless from the nature of the bequest or from a power of selection authorized by the testator a different construction is allowed. Drew v. Wakefield, 54 Me. 294.

Under a bequest to "near relations" such relations only as would be entitled to a distributive share of the testator's personal estate will take. Whitborne v. Harris, 2 Ves. Sr. 527.

A relative by blood who was in ventre sa mère at the death of the testator cannot claim under a bequest to "relations," unless such relative be a child of the testator. Bennett v. Honywood, Ambl. 708.

4 N. J. Eq. 128.

The reason assigned for such a rule of construction is that the insurer is supposed to have chosen the language to express the terms of the contract.

See also Hoffman v. Etna F. Ins. Co. 32 N. Y. 405.

A society will not be allowed to assert in defense that the designation of the beneficiary in the certificate was one of a class of persons not included in the enumeration in the charter of those for whom benefits were to be provided. Fuller v. Boston Mut. F. Ins. Co. 4 Met. 206. Mr. Charles E. Hill, for appellees: The contract is contained and comprised in the articles of association, relief fund, by-laws, and benefit certificate.

Supreme Council A. L. of H. v. Smith, 45 N. J. Eq. 472; Gray v. Supreme Lodge R. of H. 118 Ind. 299; Supreme Lodge K. of P. v. Knight, 3 L. R. A. 409, 117 Ind. 489.

The holdings of the courts have been uniform that under like contracts made by and between beneficial orders and their members, only kindred-blood relations-can take. Relations by affinity cannot.

And although the order or society has is

great nieces will take in the absence of nearer next of kin. Jones v. Colbeck, 8 Ves. Jr. 37.

As between nephews and great nephews claiming under a bequest to relations, the nephews only are entitled to take. Isac v. Defriez, Ambl. 595.

By affinity.

A devise to "relations" does not include those by affinity. Maitland v. Adair, 3 Ves. Jr. 231.

A wife is no "relation" by blood nor by affinity to her husband. Worseley v. Johnson, 3 Atk. 761. A residuary bequest to "nearest relations or connections" does not include the testator's widow. Storer v. Wheatley, 1 Pa. 506.

A devise to "relations by blood or marriage" includes those entitled to take under the Statute of Distributions and those who have married those so entitled. Devisme v. Mellish, 5 Ves. Jr. 529.

"Relation" or "relative" in a statute providing that a devise to a relative who died before the testator shall not lapse if such relative leave lineal descendants, means blood relatives only and not those by marriage. Elliott v. Fessenden, 13 L. R. A. 37, 83 Me. 197.

It does not include a husband. Keniston v. Adams, 6 New Eng. Rep. 547, 86 Me. 290.

Nor wife. Cleaver v. Cleaver, 39 Wis. 96, 30 Am.
Rep. 30; Esty v. Clark, 101 Mass. 36.

Nor a step-son. Re Estate of Pfuelb, 48 Cal. 643;
J. G. G.

Under a devise to "relations" great nephews and Kimball v. Story, 108 Mass. 382.