State ex. rel. Curtis v. City of Topeka

36 Kan. 76

• Court: Supreme Court of Kansas
• Decided: July 15, 1886
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

This is an action brought originally- in this court in the name of the state of Kansas, to oust the city of Topeka from the alleged exercise of various powers. Before submitting the case to the court, the pai’ties entered into the following stipulation:

“ It is hereby agreed that all questions submitted by the petition in this case may be dismissed without prejudice, except the first and second allegations of said petition, being the alleged illegal exercise of power in requiring dogs to be registered and to destroy dogs found running at large in said city, and the collection of a road or poll tax from certain of the citizens of said city.”

The petition, to the extent stipulated, was dismissed in accordance with the agreement of the parties. The defendant answered, denying that it has .exorcised any powers not conferred upon it by law, and setting forth its ordinances with respect to dogs, and to road or poll taxes; and the case was submitted to the court upon the petition and the answer.

The plaintiff’s first claim is, that the statute and the ordinance regulating the running at large of dogs are unconstitutional and void; and its counsel founds this claim principally upon the proposition that dogs are property, and he cites many authorities to sustain this proposition; but the proposition has seldom if ever been questioned, and so far as this case is concerned it will be admitted. But it does not follow that, because dogs are property, no statute or ordinance can be passed regulating, restricting or prohibiting the running at large of dogs, or for their destruction in case they are permitted to run at large in violation of law. Bulls and stallions are also property, and property of a much higher grade than dogs, and yet their running at large may be regulated or prohibited. Even venomous reptiles, skunks, and hyenas, may be made property; and yet when they are made property it does not follow that their running at large in populous cities cannot be regulated or prohibited. The plaintiff also cites many authorities to the effect that horses, hogs, cattle and other like valuable property cannot be destroyed or confiscated without a judicial investigation and determination upon proper and legal notice to the owner; but it does not follow from these authorities that the running at large of dogs may not be regulated, restricted or prohibited, or that dogs may not be killed if found running at largo in violation of law. Nor does it follow from these authorities that the killing of dogs found running at large in violation of law is not “due process of law” under both the state and the federal constitutions. As we have already stated, property in dogs is not of that high character that property in many other things is. (City of Independence v. Trouvalle, 15 Kas. 73; Woolf v. Chalker, 31 Conn. 121, 127; Blair v. Forehand, 100 Mass. 140; Ex parte Cooper, 3 Tex. Ct. App. 489; Leach v. Elwood, 3 Bradw. 457; 4 Bl. Com. 236.) Mr. Blackstone, in his Commentaries, speaks of property in dogs as a “base property;” and dogs were not the subject of larceny at common law; and they are seldom assessed for taxation, and seldom have a market value.

It is also claimed that the registration fee required to be paid , upon the registration of each dog is a tax, and that it is not levied at a “uniform and equal rate,” as required by §1, article XI, of the constitution. We suppose it will be admitted that said registration fee is a tax; but clearly it is not that kind of tax contemplated in the aforesaid provision of the constitution. It is a tax levied for the purpose of regulation and restriction, and is not a tax levied merely for the purpose of raising revenue, as that provision contemplates. That it is not unconstitutional because it is a tax, we think follows from the following decisions : City of Newton v. Atchison, 31 Kas. 151, and the numerous cases there cited; Tulloss v. City of Sedan, 31 id. 165, and cases there cited; City of Cherokee v. Fox, 34 id. 16; Ex parte Cooper, 3 Tex. Ct. App. 489; Mitchell v. Williams, 27 Ind. 62; Tenney v. Lenz, 16 Wis. 589; Van Horn v. The People, 46 Mich. 183; Hendrie v. Kalthoff, 48 id. 306; Commonwealth v. Markham, 7 Bush, 486; Mowery v. Salisbury, 82 N. C. 175; Holst v. Roe, 39 Ohio St. 340; Cole v. Hall, 103 Ill. 30.

It is also claimed that all dogs are not taxed alike, and therefore that the tax is invalid. The tax is “ a registration fee of $2 for each male dog and $5 for each female dog,” where the dogs are more than six weeks old, and no fee where the dogs are less than six weeks old. Now as before stated, this tax is imposed for regulation and restriction, and not merely for revenue; and therefore under the authorities above cited we think it is valid.

1. City ordinance strict‘and*’tax dogs, vana. The plaintiff also claims that the statute and the city ordinance providing for the summary destruction of dogs found running at large in violation of the ordinance are unconstitutional and void; and it cites as authority many cases, only one of which, however, as we think, can fairly be said to sustain its view; and this authority is not entirely parallel with the present case. This authority is the case of Mayor of Washington v. Meigs, 1 MacArthur, D. C. 53. On the other hand, we have numerous authorities which assert the opposite doctrine and fully sustain the validity of the statute and the ordinance put in question in the present case. These authorities are the last nine cases previously cited, and also the following cases: City of Independence v. Trouvalle, 15 Kas. 70; Woolf v. Chalker, 31 Conn. 121; Blair v. Forehand, 100 Mass. ; Commonwealth v. Palmer, 134 id. 537; Haller v. Sheridan, 27 Ind. 494; The State v. Cornnall, 27 id. 120; Lowell v. Cathright, 97 id. 313; Morey v. Brown, 42 N. H. 379; Leach v. Elwood, 3 Bradw. 453. See also Bowers v. Fitz Randolph, Add. (Pa.) 215; King v. Kline, 6 Pa. St. 318; Marshall v. Blackshire, 44 Iowa, 475. Under the almost unbroken current. of authority vre think that statutes and ordiJ nances may be passed regulating, restricting, or even prohibiting the running at lai’ge of dogs in cities, and this although dogs are unquestionably property; that the owners, keepers or harborers of dogs in cities may be required to register the same and to pay a registration fee therefor, although this fee may in one sense be a tax, though not a tax within the meaning of §1, article XI, of the state constitution; that dogs in cities may be classified, and the owners, keepérs or harborers thereof may be required to register all the dogs of one class and not the dogs of another class, and to pay a greater registration fee for the registration of the dogs of one class than for the registration of the dogs of another class; and such owners, keepers or harborers of dogs may also be required to put collars around the necks of their dogs; and that any dog found running at large in a city in violation of the statutes or ordinances may be summarily destroyed ; and that all this is constitutional and valid, and is “due process of law;” and that by the same no one is denied “the equal protection of the laws.”

2 Labor on statutesandia ordinances. The plaintiff also claims that the statutes and ordinances with reference to road or poll taxes are unconstitutional and void. It is claimed that they are void for various reasons: First, because they impose “involuntary servitude” upon persons not convicted of crime; second, because they provide for taking private property for public use without compensation; third, because they place an embargo upon the right to vote; fourth, because their provisions are such that they can be enforced only by a proceeding before the police judge, without. a jury, and that no appeal can be taken from the decision of the police judge to a court with a jury, except by entering into a recognizance with security conditioned among other things for the payment of any fine and costs which might be adjudged against the appellant. Of course, work upon the roads or streets as provided for by these statutes and ordinances is “ in voluntary servitude;” but it is not that kind of involuntary servitude which comes ^thin the interdiction of § 6 of the bill of rights of the Kansas constitution, or §1, article XIII, of the United States constitution. It is like service or “involuntary servitude” on juries, or in the militia, or in the army, or in removing snow or ice from sidewalks, gutters, etc., and is not that kind of “involuntary servitude” which is akin to slavery, as the interdicted involuntary servitude mentioned in the state and federal constitutions is. Labor is also property; but it is not taken under these statutes or ordinances without compensation. Good public roads or streets are a sufficient compensation for the labor required to be performed by each individual in keeping them in good order and condition; and this labor, or the money paid in lieu thereof, is imposed and taken as an assessment or a tax, although it is not that kind of assessment or tax mentioned in § 1, article XI of the Kansas constitution, and so far as compensation is concerned, the compensation in this case is just as good as the compensation is in any case where persons are taxed. And although the assessment or tax in this case is levied and imposed only upon a class of persons, to wit, males between twenty-one and forty-five years of age, still it is valid. Neither are the provisions of the foregoing statutes an embargo upon the right to vote; nor are they in contravention of those provisions of the constitution with regard to the right of trial by jury. All these questions and others were involved in the case of In re Dassler, 35 Kas. 678; and upon all these questions the decision of this court in that case was against the claims made by the plaintiff in this case. We shall follow that decision. We shall add a few words, however, with regard to the question of the right of trial by jury. The constitution provides that “the right of trial by jury shall be inviolate.” (Kas. Const., bill of rights, § 5.) This means that the right of trial by jury shall be and remain as ample and complete as it was at the time when the constitution was adopted. But at that time parties who were charged with violating city ordinances, or with a failure to work on the streets of cities, were not entitled to a trial by jury. Hence this provision of the constitution has no application to this case. But it is also claimed that under §10 of the bill of rights of the constitution, “in all prosecutions the accused shall be allowed . . to have . . a speedy public trial by an impartial jury. . .” Now this claim is literally true; and yet it can hardly be supposed, and indeed it has never been supposed, that by this provision of the constitution all the summary remedies heretofore given or exercised in unimportant matters and before inferior courts, tribunals, or magistrates, have been utterly obliterated and destroyed, and in their stead the more tardy, cumbrous and expensive remedy of trial by jury substituted. It is true that the words “all prosecutions” are used in this section, and yet we can hardly suppose that even the plaintiff will claim that the words “all prosecutions,” as above used, mean all kinds of prosecutions, civil, criminal, and military. Other words are also used in said section which tend to show that all kinds of prosecutions were not intended; for instance, the words “accused,” “accusation,” “offense,” and “depend,” are also used; and only accused defendants are given the right to “a speedy public trial by an impartial jury;” and this jury must be a “jury of the county or district in which the offense is alleged to have been committed.” Cities, towns and villages are not mentioned in this section. Now if prosecutions for violations of city ordinances are to be tried only before a jury, at the election of the defendant, why should they not be tried only before a jury of the city f Why should city courts go beyond the city for jurors? And we might further say that at common law juries are always composed of twelve men; and such juries have seldom been allowed in courts of special, inferior or limited jurisdiction, such as police courts, justices of the peace or probate courts, or in courts of equity, or in reviewing courts. We suppose that the plaintiff will not claim that juries are required in all prosecutions, but only in all criminal or quasi criminal prosecutions. But will the plaintiff claim that juries are required before examining magistrates or in courts martial, or in cases of impeachment before the legislature? We suppose not; but the plaintiff will undoubtedly claim that juries are required in all prosecutions before police courts or police magistrates for violations of city ordinances; for such is virtually the claim made in this case. But we do not think that even this claim of the plaintiff is tenable.

3 jury trial In 0lir opinion, the words “ all prosecutions,” as used in § 10 of the bill of rights, were intended to mean only all criminal prosecutions for violations of the laws of the state, and were not intended to mean or to include prosecutions for the violation of ordinary city ordinances which have relation only to the local affairs of the city. This is the view that almost every court of the United States which has had the subject under consideration has taken concerning similar provisions in the constitutions of their states. It is well settled that one and the same act committed by a person in a city may constitute two offenses — one against the laws of the state, and the other against the ordinances of the city; and both may be prosecuted against the offender. (1 Dill. Mun. Corp., §368, et seq., and note, and the numerous cases there cited.) Now this could not be the case if the language of said §10 was intended to include prosecutions for violations of city ordinances as well as for violations of the laws of the state; for that same section not only provides that “in all prosecutions the accused shall be allowed . . to have . . a speedy public trial by an impartial jury, . .” but it also provides that the accused shall not “be twice put in jeopardy for the same offense.” Hence if a prosecution for the violation of a city ordinance is as much a prosecution within the meaning of said §10 as a prosecution for the violation of a state law, and if both kinds of prosecutions can be had for one and the same act, then the accused would as effectually “be twice put in jeopardy for the same offense” as if both prose-cations were had strictly and exclusively under the laws of the state. As lending support to the proposition that the words “all prosecutions/7 used in §10 of the bill of rights, were not intended to include prosecutions for violations of city ordinances, but were intended to include only prosecutions for violations of the laws of the state, we would refer to the following cases: Dyers v. The Commonwealth, 42 Pa. St. 89; Borough’s Appeal, 52 id. 374; Shafer v. Mumma, 17 Md. 331; Williams v. Augusta, 4 Ga. 509; Floyd v. Eatonton, 14 id. 354; The State v. Gutierrez, 15 La. An. 190; Pursell v. Porter, 20 id. 325; McGear v. Woodruff, 33 N. J. L. 213; Howe v. The Treasurer, 37 N. J. L. 145; Trigally v. Memphis, 6 Coldw. 382. See also 1 Dill. Mun. Corp., §408, et seq., and §482, and notes and cases there cited. Also, in this connection, see the following cases : Murphy v. The People, 2 Cowen, 815; Boring v. Williams, 17 Ala. 510; Tims v. The State, 26 id. 165; Work v. The State, 2 Ohio St. 296; Ewing v. Filley, 43 Pa. St. 384; Rhines v. Clark, 51 id. 96; Johnson v. Barclay, 16 N. J. L. 1; The State v. Conlin, 27 Vt. 318; In re Dougherty, 27 id. 325; Vason v. City of Augusta, 38 Ga. 542; Frost v. Commonwealth, 9 B. Mon. 362; The State v. McCory, 2 Blackf. 5; Duffy v. The People, 6 Hill, 75; Sill v. Corning, 15 N. Y. 297; The People v. Daniell, 50 id. 274; The People v. Fisher, 20 Barb. 652; Prescott v. The State, 19 Ohio St. 184.

There are a few cases to be found in the reports which hold that constitutional provisions similar to those contained in § 10 of the bill of rights of the Kansas constitution apply to-such offenses against the laws of the state as existed at the time of the adoption of the constitution, and not to subsequently-created offenses. Whether these cases are correct expositions of the law or not, it is not necessary for us now to determine. But for the purposes of the case we shall assume that the provisions of said §10 apply to all prosecutions for offenses against' the laws of the state, without reference to whether such offenses or similar ones were in existence at the time of the adoption of the constitution, or were subsequently created. Also, for the purposes of this case, we shall assume that if the state should permit cities to pass ordinances attempting to regulate matters not coming within the legitimate scope or purpose of municipal regulation, but coming more properly within the scope and object of state regulation, a person accused of violating such ordinances would have the right to demand a jury trial; for in such a case the prosecutions would to all intents and purposes be state prosecutions, and not merely city prosecutions.; and the state could not by indirection do what it could not do directly. In other words, offenses against the public in general must be prosecuted for the public in general, and with a jury, if the defendant demand it; while offenses against the ordinances of a city regulating only city affairs, may be prosecuted for the city and without a jury. Now this case belongs to the latter class of cases. Streets within a city or other strictly municipal corporation are peculiarly within the management and control of such corporation; they are graded, paved, curbed, guttered and kept in repair by the corporation, and not by the general public ; and if they are permitted to become unsafe or dangerous, and injury to individuals results thereby, the corporation itself is liable; and this kind of liability is peculiar to municipal corporations. Neither the state, nor any county, township or road district is ever liable for injuries resulting from defective highways. Only municipal corporations proper are subject to such a liability; and therefore such corporations should have the fullest and most ample power for keeping their streets in good order and in a safe condition; and for this purpose they should have ample power to tax the people residing or holding property within the corporate limits, and to enforce the collection of such taxes. We think they have such power.

We do not think that the plaintiff is entitled to any relief in this case, and therefore its petition will be denied.

All the Justices concurring.