The opinion of the court was delivered by
Allen, J.:
[29]*29i Mai-o“s“ecTaia questions. [28]*28Many questions are discussed by counsel. We shall consider only such as are necessary for the disposal of the case. The defendants stated, in writing, pertinent and material questions of fact to be submitted to the jury. These [29]*29were filed with the clerk and banded to the court, together with special instructions asked, at the conclusion of the testimony. This was certainly in good time. It appears tha the attention of plaintiff’s counsel was not called to the fact that special questions were asked until after the opening argument by the plaintiff and one argument on behalf of the defendants, when the defendants’ counsel again called the attention of the court to the questions. The court then refused to submit them. The only excuse hinted at in the record is, that plaintiff’s counsel asked leave to discuss the propriety of the questions, to which the defendants objected, and that they were not submitted ¿jme> jn this the court erred. (Bent v. Philbrick, 16 Kas. 190; Railroad Co. v. Plunkett, 25 id. 198; City of Wyandotte v. Gibson, 25 id. 236; Railroad Co. v. Fechheimer, 36 id. 45.) When counsel for the defendants presented these questions to the court, and requested their submission, they had done all the law required of them. It might have been well for the court or counsel to have called the attention of the opposing party to them, but we cannot hold that a failure to do so deprived the defendants of their right under the statute. We also think, where there was no court rule prescribing the time within which such questions might be presented, that the defendants were still in time when they called the attention of the court and opposing counsel to them before the noon adjournment, and before defendants’ argument was concluded. The error committed in this particular compels a reversal as to all of the defendants. It is, therefore, unnecessary to consider errors urged by the defendant Metsker alone.
' names of persons liable to.
[30]*303. Police court— validjudg-nient. [29]*29Upon a new trial, the court will be required to pass on the validity of the ordinance and the legal process issued thereon. It seems, therefore, to be necessary for us to also consider these matters. The trial court held § 4 of ordinance 426 void. We fail to perceive any good *■ , # ° i i reason for so holding. It is a provision to enable the officers of the city to learn the names of persons subject [30]*30to poll tax. The ordinance of which it is a part was framed to require the performance of labor on, or the payment of money for the improvement of, the city’s streets. This is a necessary public purpose. All revenue laws have distasteful features. It is necessary in their enforcement that methods somewhat inquisitorial be pursued. All attempts of the public to gather statistics, either by taxing officers, census takers, or in any other manner, necessarily impose some burdens and inconveniences on the people. We see nothing unreasonable in requiring the keepers of boarding houses to make known to the officers of the law the names of their boarders. The conviction, therefore, under the complaint filed in this action was not void, nor was the warrant under which the first arrest was made. However this might be, there is no pretense that the second complaint did not charge an offense under a valid ordinance. There is no claim that a person who, in fact, resists an officer in the discharge of his duties may not be punished for so doing. The defendant had the privilege of showing, if he could, that he was not guilty of the offense, but if, on the trial, the court found him guilty , „ . , , . ., and assessed a fine against him, a commitment ° # 7 clearly would not be void, even though he were in fact innocent of the offense charged.
The validity of ordinance No. 91, authorizing the marshal to compel prisoners confined in the city prison to work at hard labor is challenged, as being in conflict with § 6 of the bill of rights of this state, which reads as follows: “ Sec. 6. There shall be no slavery in this state; and no involuntary servitude, except for the punishment of crime, whereof the party shall have been duly convicted.” The authority for the passage of the ordinance is contained in the thirty-seventh subdivision of §11, chapter 18, of the General Statutes of 1889, by which the mayor and council are given power to enact ordinances ‘‘to regulate the police of the city, and to impose fines, forfeitures and penalties for the breach of any ordinance, and to provide for the recovery and collection thereof, and, in default of payment, to provide for con[31]*31finement in the city prison, or to hard labor.” The ordinance in question does not provide for a judgment sentencing the defendant to confinement at hard labor, but authorizes the marshal to require the prisoners in his custody to labor. The ordinances under which the convictions were had authorized punishment by fine. The police judge imposed a fine of $25 under the first complaint, and $75 under the second, and committed the defendant to the city prison until the fine and costs should be paid. In neither case was there any judgment imposing hard labor as a punishment for the violation of an ordinance.
It was said by this court in In re McCort, 52 Kas. 18, iu considering an ordinance of a city of the second class: “The law permits, but does not require, city authorities to cause city prisoners to work on the streets and public grounds of the city.” In that case, it was contended by the prisoner that it was incumbent on the city authorities to cause him to work, and that, if they failed to do so, he was entitled to the same credit per day on his fine that he would have had if kept at work. The question as to the power of the city to compel the performance of hard labor was not raised. It was said in the opinion:
“ The punishment which the law authorizes is a fine and the costs. If the defendant pay the fine and costs,, neither imprisonment nor compulsory labor can be imposed. For the purpose of enforcing the collection of the fine, the law authorizes imprisonment, and for the same purpose it also authorizes the employment of prisoners on the streets.”
[32]*324- -wó?konncra ordeinañce.aia [31]*31In order to uphold ordinance 91, so far as it authorizes compulsory labor, it is necessary that it be imposed as a punishment for crime. If the prisoner is unwilling to work, clearly to compel him to do so would be to impose involuntary servitude. (Ex parte Wilson, 114 U. S. 417.) In this case, and in the McCort case, on payment of the fine the defendant would have been entitled to discharge, and could neither have been confined in prison nor required to labor. The provisions of the ordinances authorizing imprisonment [32]*32and compulsory labor are mere means of collecting the fines. Neither is imposed as a punishment. It is wholly unnecessary to discuss the question as to whether § 5, which guarantees the right of trial by jury, has been violated. For authorities on that point, see The State, ex rel., v. City of Topeka, 36 Kas. 76; In re Rolfs, 30 id. 758;
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The opinion of the court was delivered by
Allen, J.:
[29]*29i Mai-o“s“ecTaia questions. [28]*28Many questions are discussed by counsel. We shall consider only such as are necessary for the disposal of the case. The defendants stated, in writing, pertinent and material questions of fact to be submitted to the jury. These [29]*29were filed with the clerk and banded to the court, together with special instructions asked, at the conclusion of the testimony. This was certainly in good time. It appears tha the attention of plaintiff’s counsel was not called to the fact that special questions were asked until after the opening argument by the plaintiff and one argument on behalf of the defendants, when the defendants’ counsel again called the attention of the court to the questions. The court then refused to submit them. The only excuse hinted at in the record is, that plaintiff’s counsel asked leave to discuss the propriety of the questions, to which the defendants objected, and that they were not submitted ¿jme> jn this the court erred. (Bent v. Philbrick, 16 Kas. 190; Railroad Co. v. Plunkett, 25 id. 198; City of Wyandotte v. Gibson, 25 id. 236; Railroad Co. v. Fechheimer, 36 id. 45.) When counsel for the defendants presented these questions to the court, and requested their submission, they had done all the law required of them. It might have been well for the court or counsel to have called the attention of the opposing party to them, but we cannot hold that a failure to do so deprived the defendants of their right under the statute. We also think, where there was no court rule prescribing the time within which such questions might be presented, that the defendants were still in time when they called the attention of the court and opposing counsel to them before the noon adjournment, and before defendants’ argument was concluded. The error committed in this particular compels a reversal as to all of the defendants. It is, therefore, unnecessary to consider errors urged by the defendant Metsker alone.
' names of persons liable to.
[30]*303. Police court— validjudg-nient. [29]*29Upon a new trial, the court will be required to pass on the validity of the ordinance and the legal process issued thereon. It seems, therefore, to be necessary for us to also consider these matters. The trial court held § 4 of ordinance 426 void. We fail to perceive any good *■ , # ° i i reason for so holding. It is a provision to enable the officers of the city to learn the names of persons subject [30]*30to poll tax. The ordinance of which it is a part was framed to require the performance of labor on, or the payment of money for the improvement of, the city’s streets. This is a necessary public purpose. All revenue laws have distasteful features. It is necessary in their enforcement that methods somewhat inquisitorial be pursued. All attempts of the public to gather statistics, either by taxing officers, census takers, or in any other manner, necessarily impose some burdens and inconveniences on the people. We see nothing unreasonable in requiring the keepers of boarding houses to make known to the officers of the law the names of their boarders. The conviction, therefore, under the complaint filed in this action was not void, nor was the warrant under which the first arrest was made. However this might be, there is no pretense that the second complaint did not charge an offense under a valid ordinance. There is no claim that a person who, in fact, resists an officer in the discharge of his duties may not be punished for so doing. The defendant had the privilege of showing, if he could, that he was not guilty of the offense, but if, on the trial, the court found him guilty , „ . , , . ., and assessed a fine against him, a commitment ° # 7 clearly would not be void, even though he were in fact innocent of the offense charged.
The validity of ordinance No. 91, authorizing the marshal to compel prisoners confined in the city prison to work at hard labor is challenged, as being in conflict with § 6 of the bill of rights of this state, which reads as follows: “ Sec. 6. There shall be no slavery in this state; and no involuntary servitude, except for the punishment of crime, whereof the party shall have been duly convicted.” The authority for the passage of the ordinance is contained in the thirty-seventh subdivision of §11, chapter 18, of the General Statutes of 1889, by which the mayor and council are given power to enact ordinances ‘‘to regulate the police of the city, and to impose fines, forfeitures and penalties for the breach of any ordinance, and to provide for the recovery and collection thereof, and, in default of payment, to provide for con[31]*31finement in the city prison, or to hard labor.” The ordinance in question does not provide for a judgment sentencing the defendant to confinement at hard labor, but authorizes the marshal to require the prisoners in his custody to labor. The ordinances under which the convictions were had authorized punishment by fine. The police judge imposed a fine of $25 under the first complaint, and $75 under the second, and committed the defendant to the city prison until the fine and costs should be paid. In neither case was there any judgment imposing hard labor as a punishment for the violation of an ordinance.
It was said by this court in In re McCort, 52 Kas. 18, iu considering an ordinance of a city of the second class: “The law permits, but does not require, city authorities to cause city prisoners to work on the streets and public grounds of the city.” In that case, it was contended by the prisoner that it was incumbent on the city authorities to cause him to work, and that, if they failed to do so, he was entitled to the same credit per day on his fine that he would have had if kept at work. The question as to the power of the city to compel the performance of hard labor was not raised. It was said in the opinion:
“ The punishment which the law authorizes is a fine and the costs. If the defendant pay the fine and costs,, neither imprisonment nor compulsory labor can be imposed. For the purpose of enforcing the collection of the fine, the law authorizes imprisonment, and for the same purpose it also authorizes the employment of prisoners on the streets.”
[32]*324- -wó?konncra ordeinañce.aia [31]*31In order to uphold ordinance 91, so far as it authorizes compulsory labor, it is necessary that it be imposed as a punishment for crime. If the prisoner is unwilling to work, clearly to compel him to do so would be to impose involuntary servitude. (Ex parte Wilson, 114 U. S. 417.) In this case, and in the McCort case, on payment of the fine the defendant would have been entitled to discharge, and could neither have been confined in prison nor required to labor. The provisions of the ordinances authorizing imprisonment [32]*32and compulsory labor are mere means of collecting the fines. Neither is imposed as a punishment. It is wholly unnecessary to discuss the question as to whether § 5, which guarantees the right of trial by jury, has been violated. For authorities on that point, see The State, ex rel., v. City of Topeka, 36 Kas. 76; In re Rolfs, 30 id. 758; City of Emporia v. Volmer, 12 id. 622; Neitzel v. City of Concordia, 14 id. 446. The conclusion is inevitable that hard labor was not imposed on the plaintiff as a punishment for crime where-he had been duly convicted, but that the attempt to cause him to labor was made in pursuance of the ordinance as a means of collecting the fines, and was therefore in violation of the bill of rights.
crueHreotment-iiaMi-It is claimed by the plaintiff that, in making the arrest, in taking him to prison, and while in confinement, he was beaten and treated with harshness and cruelty. The policeman who made the arrest had the right to use such force as was reasonably necessary under the circumstances to overcome the plaintiff’s resistance; and where resistance is made with deadly weapons, like a hatchet or hammer, the officer would not be held to that degree of nice and scrupulous care in effecting the arrest that would be required in ordinary cases; but, having overcome such resistance, and having the prisoner fully in his power, the officer is then liable for any unnecessary harm or indignity done to the prisoner. It is the duty of all keepers of jails and prisons to treat their prisoners humanely. Keepers of city prisoners have no warrant or authority in law to be harsh and brutal in the management of those in their custody. For all nee(j[ess sufferings and indignities which they impose, they are accountable in damages to the party injured, and all persons aiding or assisting in such wrongs are liable with them.
For the errors mentioned, the judgment must be reversed, and a new trial awarded.