*124Dissenting Opinion.
Ross, J.The majority opinion proceeds upon the theory that while the appellee, as road supervisor, rightfully took up and impounded appellant’s hogs, having failed to comply with the provisions of the statute which would authorize him to sell them to pay his charges for their impounding, he was, therefore, a trespasser ab initio, and that appellant was entitled to recover the possession of her hogs without paying, or offering to pay, the charges to which appellee was lawfully entitled under the statute for their taking up.
All of the cases cited in the prevailing opinion, except that of Wilhelm v. Scott, 14 Ind. App.-, are cases arising under section 2639, R. S. 1881 (section 2833, Burns R. S. 1894), and not under section 442, Elliott Supp. (section 2838, Burns R. S. 1894).
Under the former section, permission is granted to ‘c any person being a resident ” of the township where the animals are found running at large to take them up and impound them. This section of the statute merely grants a permissive right, while under section 442 the duty is imposed upon the road supervisor to impound all stock found running at large in his district, and if he “ shall fail to perform such duty, he shall be fined not less than $1.00 nor more than $5.00 for each and every offense.” Under this section of the statute the supervisor has no option in the matter; it is made a duty, and for a failure in the performance of that duty he shall be fined. It is for this reason that I am unable to see how he can be said to be a trespasser ab initio. I take it that the majority must concede that appellant’s right to recover must depend upon holding that appellee’s possession of the hogs was wrongful, for if his *125possession was rightful, appellant must fail, this being merely a possessory action.
It should be borne in mind that the appellee was not seeking to sell appellant’s hogs, under sections 2640-2643, R. S. 1881 (sections 2834-2837, Burns Rev. 1894), which provides for the manner of selling stock' impounded to pay the expenses incurred in the taking up, impounding and taking care of the same, but he was simply holding the stock and keeping it off the highways and uninclosed lands of his district, as the statute made.it his duty to do. Section 2642, supra, provides that the person taking up any animal running' at large shall receive therefor from the owner the sum of $3.00, upon the payment of which he shall deliver the animal so taken up to such owner. If the appellee was entitled to this charge for the taking up (and the majority opinion apparently concedes that he was) then the appellant had no right to the possession of the hogs until she had paid, or tendered, these charges to appellee. As to whether appellee could hold the hogs without giving the notice and taking the other steps required by the statute, until appellant had paid, or tendered the additional cost of taking care of them, etc., incurred after the expiration of the time designated for giving such notice, and taking such other steps as provided by the statute, I deem it unnecessary to decide at this time. I am satisfied in saying in this case that the appellee was rightfully in possession of the hogs, because the law forced such possession upon him and imposed upon Him the duty of holding such possession and not permitting them to again run at large, the same as it imposed upon him the duty of impounding them in the first instance. If my construction of appellee’s rights and duties, under section 442, supra, are not correct, we have a law compelling an officer to *126impound animals found running at large, and at the same time make him liable in a civil action for the performance of that duty. That may be the law, but if it is, I cannot approve of it.
Filed January 9, 1896.