5 Wash. 303 | Wash. | 1892
The opinion of the court was delivered by
This cause was submitted to the court on an agreed statement of facts which involved the validity of a certain town ordinance of the town of Waterville (a town of the fourth class), providing for the impounding and sale of cattle running at large upon the public streets
The contention of the appellant is that the ordinance in question is void for two reasons: (1) That it is in violation of § 3, art. 1 of the Constitution of the State of Washington. (2) That said ordinance is invalid because the said town had no authority under the statute to pass it.
So far as the first proposition is concerned, there can be no doubt that the overwhelming weight of authority is opposed to the contention of appellant, and that the right to restrain cattle from running at large, under the provisions of the ordinance passed in conformity with the grant of such power by the legislature is a valid exercise of police power, and is not violative of any constitutional provision. Such power has been conferred on municipal corporations from time immemorial, and is founded on public necessity, protection of public health, safety and comfort; and but few courts have questioned its validity. There have been many contentions over the reasonableness or unreasonableness of the notice given by the provisions of the ordinance, and many decisions holding the notice unreasonable, but they did not go to the right of the city to pass an ordinance of this character. In other cases the ordinance provided for the collection of the damages which the stock may have done, and some courts have decided that the question of damages should be submitted to a jury. This was the question decided in Bullock v. Geomble, 45 Ill. 218, cited by appellant. In Willis v. Legris, 45 Ill. 289, cited by appellant on this point, the question of a penalty was involved, which is not involved in the ease at bar.
So far as the question of notice is concerned, as not being due process of law, proceedings under the ordinance are proceedings in rem. It is only the property that is dealt with; no personal liability attaches to the owner, and in an action in rem constructive service by publication is sufficient to give validity to the judgment obtained.
The second proposition, however, is more troublesome. The statute does not in express terms grant the power to the city council of cities of the fourth class to pass ordinances for the impounding of cattle or other stock, or to restrain them from running at large within the city limits. The question then is, has this power been conferred by necessary implication? As'a general proposition it may be said that the city corporation is an inferior body, and has no other powers than those which have been expressly delegated to it, and their appropriate incidents. But what the appropriate incidents of expressly conferred powers are, is a question exceedingly difficult to determine, and one which has provoked the announcement of many conflicting opinions by the courts; and the text writers, while assuming to lay down rules for the construction of the statutes in such cases, leave the meaning of. the rule so clouded as to render it of little assistance to the courts.
“The charter or statute granting powers to municipal corporations usually enumerates those which may be exercised. It is a general rule that all powers not mentioned in the enumeration, and not incidental to those enumerated, are not intended to be included in the grant. All other powers are impliedly excluded. ’ ’
All the force of the rule of construction thus laid down is, however, annulled by the following proviso:
“But the enumeration of special cases does not, unless the intent be apparent, exclude the implied power any further than necessarily results from the nature of the special provisions. ”
These oracular announcements, when construed together, contain no rule of construction whatever.
The rule of strict construction against the corporation is, however, thus laid down by Judge Dillon in his work on Municipal Corporations, § 89, and notes:
‘ ‘ Corporate power being delegated must be strictly construed and plainly conferred. Whenever a genuine doubt arises as to the right to exercise a certain power, it must be resolved against the corporation, and in favor of the general public. This rule is most strictly observed in construing powers that may lead to an infringement of personal or property rights.”
In Smith v. Madison, 7 Ind. 86, it is held that the application of the above rule could not be made to defeat the right to exercise powers which are incidental to the good government of the community. In City of Waco v. Powell, 32 Tex. 258, under the provisions of the statute granting to a city government general control over the streets, similar to the provisions of our statutes relating to cities of the fourth class, it was held that such power authorized the enactment of an ordinance for the impounding of cattle;
It is pretty well conceded by the authorities that the term “general welfare” used in legislative grants of power to municipal corporations is of broader scope, and confers greater powers on corporations, than such expressions as “peace and good order” and “peace and good government,” and that many things are essential to the public welfare which belong neither to the preservation of peace and good ordei', nor to the exercise of good government. The general authority conferred by our statute is as fol lows:
“To make all such ordinances, by-laws, rules, regulations and resolutions not inconsistent with the constitution and laws of the State of Washington as may be deemed expedient to maintain the peace, good government and well-fare of the town, and its trade, commerce and manufactures, and to do and perform any and all other acts and things necessary or proper to carry out the provisions of this chapter. ”
The judgment is reversed.