Commissioners of Salisbury v. Powe, 51 N.C. 134, 6 Jones 134 (1858)

Dec. 1858 · Supreme Court of North Carolina

51 N.C. 134, 6 Jones 134

THE COMMISSIONERS OF SALISBURY v. CHARLES T. POWE.

A town ordinance, prohibiting a “person from a placó' infected with small pox, to enter such town, was Held to embrace those persons only, who left such infected place after the passage of the ordinance, and came immediately or directly to such town.

ActioN of debt for a penalty, which came by appeal from a a magistrate to the Superior Court of Rowan, and was tried before Manly, J., at the last Eall Term of that Court. Plea, nil clelit.

On the trial, the plaintiff gave in evidence the charter of the town, passed in 1848, by which the commissioners of the town have power to prohibit persons recently from any place, where a contagious disease is believed to exist, from entering the town, and goods and chattels from being brought from such place within the town ; and by an ordinance to fix a penalty for the breach of any of the rules established by them on this subject; which penalty shall be recovered by action of debt in the name of the commissioners of the town of Salisbury, in any Court having jurisdiction. The plaintiff also gave in evidence an ordinance passed by the commissioners of the town on 10th day of March, 1858 ; by which, after reciting that the small pox exists at Gold-Hill, in the county of Rowan, it was, for the better protection of the citizens of the said town, ordained, amongst other things, that any and every person from Gold-Hill, is hereby prohibted from coming within the corporate limits of the town of Salisbury, under a penalty of fifty dollars for each and every offense; and that no person shall bring into said town any goods or chattels from said place, under the penanty of fifty dollars, for each and every offense; and that any citizen of the said town, who shall receive, or permit to remain, on his premises, any person, goods or chattels, from said place, shall forfeit and pay the sum of fifty dollars for each and every offense ; and that no stage, or passenger therein,, coming through Gold-Hill, shall enter within the corporate limits of the said town, under the penalty of fifty dollars for each and every offense; and that the ordinance be in force from its passage, until it shall be repealed. The plaintiff then gave further in evidence, that the ordinance was immediately published, and that on the 9th day of March, 1858, the defendant, who was a resident in Salisbury, was on a journey from Salisbury to Wades-borough, and on his way, passed through the place, called Gold-Hill; that he stopped there- a short time, and, being a practicing physician, visited a patient, who had the smallpox, and then proceeded to 'W’adesborough; and that, on the 15th of March, 1858, the defendant returned to Salisbury, •without having been at Gold-Hill after the 9th of March, but with a knowledge of the ordinance.

The Court instructed the jury, that the plaintiff could not recover; and a verdict and judgment were given for the defendant, and the plaintiff appealed.

Boy den, for the plaintiff.

Fleming, for the defendant.

BuefiN, J.

The case may be within the mischief, against which the charter and ordinance were directed. Yet, if it be not within the enactment also, the action cannot be sustained. The ordinance was probably drawn in haste, under the panic inspired by the vicinity of a dangerous contagious disease. At all events, it is loosely worded — not directly providing, even against a person with the disease on him, entering the town. It recites, that small-pox was then at Gold-Hill, without any allusion to the period it had been there, and then enacts that every person from Gold-Hill is prohibted from coming into Salisbury. The expression, “ person from Gold-Hill,” is not to be construed so as to include every one who had been in that place, or came from it at any indefinite period before ; as that would be an unreasonable by-law, which could not be supported. No doubt, those persons were meant, who had been at Gold-Hill recently, and since it had been infected with small-pox, and who. therefore, might bring the disease with them. That would have been a reasonable precaution, which would have sustained an ordinance expressed in that manner. But such are not the terms of this ordinance. On the contrary, it uses simply the language quoted, “ a person from Gold-Hillwhich may have several other meanings, but not one that can include this case. A citizen of Salisbury will say of a citizen of Gold-Hill, whom he sees in Salisbury, that he is “ from Gold-Hill” — signifying his residence there. On the other hand, when one at Salís-bury speaks of a person coming ¡there from “ Gold-Hill,” without any words referring to time, he means coming immediately or directly from it; and the same language in the law can only mean the same thing, with the addition, that the coming must be “from the place” after the law, forbidding it, was passed. The defendant did not come to Salisbury direct from Gold-TIill, nor had lie been there after the ordinance, and, therefore, lie is not within it.

Pee Cueiam, Judgment affirmed.