City of Independence v. Trouvalle , 15 Kan. 70 ( 1875 )

The opinion of the court was delivered by

Valentine, J.:

On June 27th 1872 the city of Independence, a city of the second class, passed an ordinance, that no dog should be permitted to run at large in any public place in said city unless the owner of the dog should first pay to-the city a tax of one dollar for each male owned by him, and five dollars for .each female, and should cause a collar and check, which were to be provided by the city, to be worn by each dog. Said ordinance also made it the duty of the city marshal to kill and bury every dog found running at large in violation of said ordinance, and also provided that the marshal should receive from the city as compensation for bis services in this respect one dollar for each and every dog killed and buried. Under this ordinance, and from July 9th to December 30th 1872, the marshal killed and buried 168 dogs. The city then refused to pay him for his services. He then commenced this action to recover for the same. The plaintiff in error in its brief says: “ The defendant in error brought suit against the plaintiff in error in a justice’s court to recover the sum of $168 for services as marshal of the plaintiff in error, under an ordinance. Judgment for that amount was rendered in favor of plaintiff. Defendant appealed to the district court, where the case was tried at the December Term 1873, and judgment for the amount claimed, $168, was there rendered.” The city then brought the case to this court on petition in error.

The city now claims that said ordinance is illegal and void, and imposes no binding obligation upon the city to pay for services rendered under it. It sometimes happens that municipal corporations, as well as individuals, believe that it is eminently legal to incur obligations, but manifestly illegal to fulfill them. This is a kind of frugal respect for law eminently beneficial to those who can successfully exercise it, but not so congenial to those who must innocently suffer by it. Hence, what may seem to be a commendable example of prudential economy by the party pleading the illegality, may be regarded as a pernicious example of moral obliquity by the other. We perceive no sufficient reason why the plaintiff cannot recover in this case. No sufficient reason has been given, and we perceive none, why said ordinance should be held to be invalid, so far at least as it affects any question involved in this case. It should certainly not be held to be invalid because of the sacredness of the property that may be held in dogs. Property in dogs is of such a low character that it is hardly considered as property at all. And a vast number of dogs running at large upon the public streets, without any known owner, is always considered as a nuisance. We do not suppose that property in dogs is of such a sacred character that dogs found running at large upon the public streets, in violation of a city ordinance, cannot be destroyed, but must be taken up and impounded, as a cow or other more valuable animal, and notice thereof given to the owner, and that the dogs must then be offered for sale at public auction, to the highest bidder, if the owners thereof (if they have any) should not in a reasonable time pay charges and take them away. The ordinance is made for dogs owned and kept in the city of Independence, and not for dogs casually there. And we must presume, as the record comes to us, that no dog was killed except such as the marshal had a right to kill.

It was not error for the court below to permit said ordinance to be proved- by the introduction of the original “ordinance book” of the city.

There seems to be no provision made by statute for the collection of judgments against cities of the second class. If this is so, then we suppose an execution may issue on such judgments.

The judgment of the court below is affirmed.

All the Justices concurring.