delivered the opinion of the Court:
The question presented by this record is, whether the sale of appellee’s horse, by the pound-master of the town of Bidott, divested the title of the owner. The horse had been impounded because running at large in violation of the town by-laws. There were no judicial proceedings before a magistrate prior to the sale, but the pound-master, the day after impounding the animal, advertised it for sale “ in satisfaction of fine and costs of proceeding.”
The authority of towns upon this subject is derived from the following statute:
“ The electors of each town shall have power, at their annual town meetings, * * * to restrain or prohibit the running at large of cattle, horses, mules, asses, hogs, sheep or goats; to authorize the distraining, impounding and sale of the same for penalties incurred, and the cost of the proceedings, and to determine the time and manner in which such animals may go at large.” Sess. Laws 1861, pp. 221, 222.
It will be observed that the power to make sales is given only for penalties incurred and the cost of the proceedings; and a town cannot, by its by-laws, confer such authority upon its officers in any other contingency. But to ascertain whether a penalty has been incurred or not, is a proceeding purely judicial in its character, and that power cannot be exercised by the pound-master by virtue of his office. The by-law may impose a reasonable penalty for the offense of allowing animals to run at large, may authorize the animals to be impounded, and may direct an inquiry to be had before a magistrate as to whether the penalty has been incurred, with a right of trial by jury. If it has been incurred, the magistrate may be directed to enter a judgment against the owner for the penalty and costs, and an order directing the pound-master to sell the property. If the owner is known, he should receive personal notice, and, if not known, there may be constructive notice to him, as the unknown owner of the impounded property, by posting, the property being described in the notices. A by-law thus framed would be free from objection; but one which authorizes the pound-master to sell property without a judicial ascertainment that some law has been violated, would confer upon the pound-master a species of power never contemplated by the statute above quoted, to say nothing of constitutional objections to its exercise.
Judgment affirmed.