Palmer v. Spaulding , 17 Me. 239 ( 1840 )

The opinion of the Court was by

Shepley J.

When the legislature has so clearly pointed out the duty of one impounding beasts, it is much to be regretted, that he cannot take the trouble to read the law informing him of his duty. The stat. 1834, c. 137, $ 5, declares, that “the impounder shall send or deliver to the pound keeper a certificate of the following purport,” and then follows the form of one, which requires a statement of the sum in dollars and cents demanded for damages or forfeitures, and the unpaid charges for impounding the same. And provision is made by the twelfth section, that “ the party impounding such beast or delivering the same to the pound keeper shall have a reasonable sum for his trouble, to be determined by the pound keeper,” subject to the limitation, that it is not to exceed one half of the forfeitures. These forfeitures and charges. are required by the second section, to be paid before the beasts are released, and it appears to have been the intention of the legislature clearly expressed, to enable the owner to know with certainty the amount to be paid for the use of the impounder. The pound keeper is required by the seventh section forthwith to advertise the same, and among other things to state, that “ the owner is to pay what is legally and justly demandable.” He is not required in the advertisement to state any certain sum in dollars and cents, for the expenses of keeping would continually vary the amount.

The statute also requires, that the impounder in the certificate should give “ a short description of the beast.” The certificate left in this case with the pound keeper did not describe the beasts, or state any sum demanded in any other manner than by requesting the owner “ to pay the forfeiture and costs.” The argument is, that the certificate is sufficient, because that is certain, which can be made so, and that the law has determined the amount of the forfeitures; and that no sum being stated as charges for impounding, it is to be understood, that nothing is claimed. The word costs is not used in the fifth and seventh sections of the statute in reference to any claim that may be made by the impounder. It refers to those undefined expenses, which may arise during the after proceedings required by the statute.

If a liberal construction would allow the impounder to dispense with all the words in the form, and deliver a certificate in substance the same, the same construction would require the conclusion, that he used the word costs to describe something which he intended to claim, and therefore designed it to refer to the charges for impounding. Such a construction of his language would be enforced by the considerations, that nothing appears authorizing the conclusion, that he designed to relinquish any of his rights ; and that the word has no meaning where it is used by him unless he designed it to cover such a claim.

Can the impounder dispense with both the form and substance of that requisition of the statute making it his duty to describe the beasts, because in this case it might not have been useful to the owner ? He does not appear to have waived any of his rights. A party cannot be permitted to say, that he will disobey a law, because he can prove that it occasioned no injury.

It would neither be correct, nor safe, to establish a rule, that the impounder may omit to describe the beasts, if he can satisfy a jury, that the owner was not thereby injured. The statute has not im? posed upon the owner the burden of entering upon such an invest tigation.

Exceptions sustained.