Majority
p. 294Parsons and Hall vs. Brainard.
Headnote
Justices of the peace presiding at town meetings, for the preservation of order at such meetings, may make a parol order for the removal of any disorderly person who disturbs the business of the meeting; an order in writing is not necessary for such purpose.Error from the Lewis common pleas. Brainard sued Parsons & Hall in an action of assault, battery and false imprisonment. Parsons was a justice of the peace of the town of Leyden, and, together with two other justices, presided at a town meeting. Parsons acted as moderator. A proposition was-made to elect hog-howards, (whose duty it seems was understood to be, to catch hogs.running at large and put rings in their noses.) Brainard was nominated to the office of hog-howard; a vote of the meeting was called by Parsons, and Brainard was elected. Brainard thereupon nominated Parsons as hog-howurd’s waiter. This nomination produced noise, laughter and confusion. Parsons directed Hall, a constable in attendance, to remove Brainard from the room in which the meeting was holden, who accordingly took him away. One cf the other justices acquiesced in this order. It was for this removal from the room that the action was brought. The common pleas charged the jury that the officers presiding at a town meeting had no right to direct a constable to remove from a place where a town meeting was held, a person who was disorderly and disturbed the business of the [523] meeting, unless by an order in writing. To which charge the defendants excepted. The jury found a verdict for the plaintiff for fifty cents damages, for which sum, together with $81,92 costs, the common pleas rendered judgment. The defendant sued out a writ of error.
J. A. Spencer, for the plaintiffs in error.
S. Beardsley (attorney general), for the defendant in error.
By the Court,
The court below has recognized no distinction between measures adopted for the purpose of putting an end to existing disorder in a public assembly, and those which have for their object the punishment of the offender. By the statute, the justices are to preside at the town meeting, and see that the same is orderly and regularly conducted (1 R. S. 342, § 11, 12). They have full authority to maintain regularity and order, and to enforce obedience to their lawful commands (Id. 137, § 35). Stopping here, there would be little room for question that the justices were well warranted in ordering the plaintiff out of the room, without waiting to
p. 295
put their mandate in writing. The case called for a prompt exercise of their authority, and I can perceive no objection in principle to the manner in which it was exercised. But the jury were instructed that the 37th section of the statute governed the case, and that the order was void for not being in writing. This section authorizes the justices, by an order in writing, to commit the offender to the common jail of the county, for a period not exceeding thirty days. This is not a qualification of the power previously conferred on the magistrates, but a superadded authority, having for its object the punishment of the offender. One power is given for the purpose of maintaining regularity and order, and the other for the correction of the delinquent. The one may be exercised for the purpose of quieting an existing tumult, and the other may be restored to after the disturbance is at an end. The mode [524] of inflicting punishment is prescribed by the statute, but the means of maintaining order are left to the discretion of the presiding officers.
Judgment reversed.