Stebbins v. Mayer

38 Kan. 573 | Kan. | 1888

Opinion by

Clogston, C.:

The principal question now to be determined is, whether the ordinance under which the justification was made by the marshal is valid. All the other questions raised by plaintiff in error on said ordinance have been passed upon by this court, and adversely to the plaintiff's claim. (See The State, ex rel., v. City of Topeka, 36 Kas. 76.) If this ordinance is valid, then the judgment of the court must be affirmed. Section 9, chapter 19, Comp. Laws of 1885, provides “that no ordinance shall contain more than one subject, which shall be clearly expressed in its title.'' The title of the ordinance in question was, “An ordinance prohibiting animals from running at large in the city.” Section 1 named what animals should be prohibited from running at large. These animals are prohibited from running at large at all seasons and under all conditions. Section 2 provides that no person shall keep a dog, etc., within the limits of the city of Newton, without first complying with certain regulations, among which is the payment of a tax, the registration of the dog, and the procuring of a tag and collar to be worn by the dog; and also providing that in case a dog is found running at large in the city without such collar and tag, it shall be the duty of the marshal to kill him and remove his body from the city. The language of § 9, above quoted, is an exact copy of the constitution of the state in relation to bills, with the exception that the word “ordinance” is used where the constitution uses the word “bill.” This provision of the constitution is universally recognized as being mandatory upon the legislature. (Comm’rs of Sedgwick Co. v. Bailey, 13 Kas. 600; Philpin v. McCarty, 24 id. 402; The State, ex rel., v. Bankers’ Association, 23 id. 501; The State v. Barrett, 27 id. 213; M. K. & T. Rly. Co. v. Long, 27 id. 684.) This provision of the statute is as binding upon cities as that of the constitution is upon the legislature in relation to its acts, and by its terms the statute has said that the title of an ordinance must be an index of what it contains.

The primary and sole object of §1, which is clearly indicated by its title, is to prohibit certain animals from running at large, and this is all that is included in its title; while § 2 had for its object the collection of a tax on dogs, and their destruction in case the tax was not paid, and a license or permission to run at large when the tax was paid. This section makes the owner criminally liable if this tax is not paid and the dog registered, whether the dog is permitted to run at large or not, and it would have been a violation of the ordinance (if this ordinance is valid) for plaintiff to have kept his dog shut up and never permitted him to go upon the street of at large at all. The owner must pay the tax, or be criminally liable. This clearly shows that the title of this ordinance is not broad enough to include § 2, and therefore must be held void. This court has held, in City of Emporia v. Volmer, 12 Kas. 630, that the words restrain and regulate are not synonymous with prohibit. Applying that rule to this case, which prohibits the running at large, it would not include the less, and restrain and regulate certain animals, and permit them under certain conditions to run at large.

The notice published by the marshal, under the di rection of the mayor, was not such a regulation as could be enforced. A direction of this character and a notice of this kind would not justify the marshal in the killing of plaintiff’s dog. Such a regulation can only be made valid by an ordinance of the city. Power is given the mayor and council to pass reasonable regulations in relation to restraining or prohibiting dogs from running at large, and to tax them. This is held to be a proper and legitimate subject for an ordinance; but before this power can be invoked or enforced, the city council must have passed an ordinance in relation thereto. We are therefore of the opinion that the judgment of the court was wrong, and that there was error in admitting said ordinance and notice in evidence, over the objection of the plaintiff.

It is therefore recommended that the judgment of the court below be reversed.

By the Court: It is so ordered.

All the Justices concurring.