Taggart v. Commonwealth , 21 Pa. 527 ( 1853 )

The opinion of Lewis, X, was as follows:—

Lewis, J.

— The plaintiff in error was convicted of placing a nuisance in a public street in the borough of Northumberland. He was sentenced to abate it at his own costs, and was ordered to stand committed until the sentence be complied with. It is alleged that this is erroneous, and that the nuisance ought to be abated by means of a writ directed to the sheriff. In looking for authorities to support this sentence, it is certainly going far enough back when we draw from the black letter lore of Rolle’s Abridgment. It is there declared, in the Norman Erench then in use, that “ Si home soit convict d’un nusans fait al hault chemyn le roy, il serra command, per le judgment, a remover le nusans a son costs demesne”: 2 Rolle’s Abr. 84, sec. 15. Here we have the ancient common law, declared by one of its most approved writers. It tells us expressly that if a man is convicted of a nuisance done in the king’s highway, he shall be commanded, by the judgment, to remove the nuisance at his own costs. He cites authorities to support his position. Other writers of eminence have, from time to time, affirmed the same principle. It is so declared in 3 Binns’ Justice, 222. The same language is used in Hawkins’ Pleas of the Crown, 1 Hawkins 365, ch. 26, see. 14. In Russel on Criminal Law, the same principle is stated in language equally distinct and positive: 1 Russ. Crim. L. 331. Thus, ancient and modern authorities concur in their sanction of the sentence which was pronounced in this case. Where the indictment is at common law, as this was, we know of no decision that such a sentence is illegal.

The rule varies where statutory provisions- require it. Where a party has a license to erect the structure complained of, and the nuisance convicts in exceeding his privilege, the sentence is not to remove the building altogether, but to make it conform to the license. In such cases it is usual to issue a writ to the sheriff, commanding him to execute the judgment. Respub. v. Arnold, 3 Yeates 423, was a case of that kind. The sentence in that case could not he pronounced according to the common law, because the defendant, after conviction and before sentence, had procured an Act of Assembly, which authorized him to continue the dam complained of, upon the terms prescribed in the Act. All that could be done in such a case, was to see that the dam was made to conform to the provisions of the statute which authorized its continuance. This case, therefore, furnishes no precedent whatever for sentences at common law. The case in 11 Pick. 452, relates to the judgment in a civil action under a statute of Massachusetts, which authorized the sentence and prescribed its form. The case in 1 John. Cases 336, decides nothing which touches the question. So far from it, the Supreme Court declined expressing any opinion whatever, because the record had not been returned. In 1 Strange 688, an “old booh of forms” is cited, in which, as the counsel informs the Court, it is stated that judgment was-given in an assize of nuisance, that the nuisance should be removed and the ditch filled up (quod nocumentum praed. amoveatur et trenchea praed. obstruatur), without mentioning by whom or at whose costs it was to be. done. As this was not the particular point under investigation, the citation may not have embraced all that the case contained in relation to it; the book itself is not known as a work of authority, and the decision reported is in an assize of nuisance, and not an indictment. It has therefore no application to the question before us. These are the cases which have been relied upon to show that the sentence is erroneous; but they fail in pertinency to the question before us, and do not in any manner impair the influence of the distinguished writers already cited in Support of the judgment of the Court below. When the law is settled, judges ought not to unsettle it, except upon the most urgent necessity. But when it is rightly settled in a way that promotes justice and accords with the public convenience,, there is no justification whatever for disturbing it.

But we are told that it is very hard to commit the defendant until he complies with the sentence, and that he cannot abate the nuisance while he is in prison. Doubtless it is so; but “ the way of the transgressor” is always “hard.” The sentence was not intended so much for his convenience as for that of the public whose rights he has violated. Every convict who has been sentenced to pay a fine, or costs, or to restore stolen goods, might make the same complaint. While confined in jail he cannot personally go to his desk at home to procure the money to pay the fine and costs; nor can he proceed to the place where the stolen goods are concealed for the purpose of restoring them to the owner. As he has voluntarily subjected himself to the inconvenience, he must be content to transact his business by agents. The plaintiff in error could very easily surmount, the difficulties of his case in this way, even if he had been actually imprisoned under the sentence. But he has had the good fortune to avoid this inconvenience thus far. It is not probable that a gentleman unaccustomed to the labor of erecting or prostrating buildings would rely much on his own personal exertions in abating a nuisance like the one complained of here. But whatever the inconveniences of the case may be, they should have been considered by the defendant below before he subjected himself to them. In this case it might be safe enough to trust to the personal engagement of the party to comply with the sentence: but the rule of the law has been established for those in whom it has not quite so much confidence. This objection to the sentence has been urged with such sober earnest, that we have felt bound to notice it; but it would be more appropriately addressed to the legislative department. As soon as the legislature think proper to abolish imprisonment for crimes, we shall be ready to enforce the new enactment in the manner which may be prescribed. But at present we have to execute the law as it now exists.

In what is said, we do not wish to be understood as denying the power of the Court to issue a writ commanding the sheriff to abate the nuisance. On the contrary, this is the proper course, if the defendant fails to comply with the sentence. But to justify the writ, the judgment of abatement should be pronounced in the manner already indicated. No writ of execution can legally issue without a judgment to support it: 8 T. M. 144. If the defendant fails to comply with the sentence, and the nuisance, in consequence, be abated by the sheriff, the imprisonment should continue until the costs and charges of that proceeding be paid, or the defendant be otherwise legally discharged. Those who place nuisances in the highway, ought to bear the charges of removing them.

There is nothing in the other errors assigned.

Judgment afErmed.

Black, C. J., and Lowrie, J., dissented. The dissenting opinion of the Chief Justice has been filed.