27 Kan. 528 | Kan. | 1882
The opinion of the court was delivered by
As shown by the record before us, a complaint was filed in the police court of the city of Emporia, on ■the 5th day of August, 1881, charging the defendant with a violation of § 6 of an ordinance of that city, entitled “An
“Any person who shall break open, pull down, destroy or injure the pound in the city of Emporia, or any door, gate, fence or inclosure thereof, or take, or attempt to take or drive thereout or therefrom any animal therein impounded, without first paying the officers’ fees as herein provided, shall, on conviction of either of the two classes of offenses in this section ■enumerated, be fined in any sum not exceeding $50.”
After a hearing in the police court, the defendant appealed to the district court, and upon trial in that court was adjudged .guilty, and sentenced to pay a fine of $10 and costs.
Three objections are urged against the conviction. First, ■it is said there is no venue laid in the complaint; second, that •that part of § 6 of the ordinance upon which the complaint is ■based is not embraced in the title of the ordinance, and is •therefore void; third, that the city council has no such power ns it has attempted to exercise in § 6 of the ordinance.
The complaint was as follows:
“State op Kansas, County op Lyon, City op Emporia.— Before James B. Barnes, Police Judge of said city.— City of Emporia, plaintiff, v. F. E. Smith, defendant.— T. ■Johnson, being first duly sworn, upon oath says, that the city of Emporia is a city of the second class, duly organized under and by virtue of the laws of the state of Kansas; that upon the 4th day of August, 1881, within the corporate limits of said city, one F. E. Smith, above named, defendant, then and there being, did break open the inclosure established by said city as the city pound, and did take and drive therefrom animals therein lawfully impounded, without first paying the lawful •officers’ fees for the same; all contrary to an ordinance of said city in such cases made and provided. T. Johnson.
“Sworn to and subscribed before me, by T. Johnson, this •5th day of August, 1881.
“ Jam:es R. Barnes, Police Judge.”
We think, under the provisions of the act for the organization of cities of the second class, (in which class the city of Emporia belongs,) and the liberal rules of pleading and practice which extend to suits and prosecutions to enforce the ordinances of cities, that the complaint wasjsufficient. Under
Under the terms of § 9, ch. 19, Comp. Laws 1879, it is provided that no ordinance shall contain more than one subject, which shall be clearly expressed in its title. The title of the ordinance under which the conviction was had, relates to the regulation and prohibition of the running at large of' animals. The ordinance among other things provides that the marshal, assistant marshal and policemen shall be ex officiokeepers of the pound or inclosure used for the impounding
As to the final objection, that the city council had no power to adopt said ordinance, it is sufficient to state that § 51, ch.19, Comp. Laws 1879, provides for the adoption of an ordinance regulating and prohibiting the running at large of animals, the impounding thereof, and the erection of all needful pens and pounds. The keeping of the animals lawfully impounded, until properly released under such section, is also clearly within the power of the council to provide for, and this would include provision for penalties upon all persons breaking open the pound so as to permit the animals to run at large again. (Gilchrist v. Schmidling, 12 Kas. 271.)
The judgment of the district court will be affirmed.