City of Doniphan v. White

85 S.W. 400, 110 Mo. App. 504, 1905 Mo. App. LEXIS 65

• Court: Missouri Court of Appeals
• Decided: February 21, 1905
• Status: Published

Opinion

GOODE, J.

— These respondents were complained against before the mayor of the city of Doniphan for permitting a cow with horns to run at large within the corporate limits of the city contrary to the provisions of an ordinance which provided that it should be unlawful for the owners, agents or keepers of a cow, hull, heifer or steer to permit the same to run at large within the city unless the animal was dehorned or a natural muley. The respondents were convicted before the mayor and took an appeal to the circuit court where, on a trial of the case, the. ordinance was excluded from the evidence and a declaration in the nature of a demurrer to the -appellant’s case given. The circuit court held that the city of Doniphan had no power to pass the ordinance in question, and the respondents endeav- or to sustain this ruling on the ground that the ordinance created an unlawful discrimination between the owners of cattle with horns and the owners of cattle without horns. Doniphan is a city of the fourth class. The Revised Statutes contain a specific grant of power to such cities to regulate and restrain the running at large of cattle within the corporate limits and to provide penalties against owners who shall violate a measure adopted by the city to regulate and restrain cattle. [R. S. 1899, sec. 5959.] Power is given both to regulate the running at large of cattle and to restrain them. The ordinance with wbicb we are concerned is a regulation of the matter pursuant to the granted power. It prohibits the running at large of cattle with horns, but permits muley and dehorned cattle to do so. ■ The obvious reason for this legislation is that in the judgment of the city authorities, cattle with horns were considered dangerous to people on the streets, and perhaps to young trees; while those without- horns were not. This was a matter within the discretion of the council. That body had power to prohibit all cattle from running at large, or they might restrain only such animals as, in reason, could be considered dangerous to persons or property. Horned cattle are more dangerous than those without horns, and if the council saw fit to permit one class to be on the streets, while prohibiting the other class, it.could do this by virtue of the grant of power contained in the statutes. No case like this has been cited, nor have we found one; but according to those general principles which control the exercise by a municipality of a power granted in its charter to enact legislation on a specified subject for the purpose of promoting the health, safety and welfare of the community, the ordinance before us seems to be valid. We can not say the discrimination between the two kinds of cattle was arbitrary, capricious or unreasonable. One kind might do mischief and the other not. As the ordinance was founded on a power expressly granted and deals with the very matter of the grant — the regulation of the running at large of cattle — its invalidity, when tried by some established principle of law, would have to be clear, for us to annul it. [Tarkio v. Cook, 120 Mo, 1, 25 S. W. 202; St. Charles v. Elsner, 155 Mo. 671, 56 S. W. 291.]

The judgment is reversed and the cause remanded.

All concur.