Burdett v. Allen.
| Decision Date | 07 December 1891 |
| Citation | 35 W.Va. 347 |
| Court | West Virginia Supreme Court |
| Parties | Burdett v. Allen. |
Municipal Corporations Powers of Council Impounding Constitutional Law.
The charter of a city or town located in this State, and the ordinances ordained by its council in pursuance of the provisions of sections 28 and 29 of chapter 47 of the Code, may as an act of police regulation and power provide for the taking up and impounding of cattle, hogs, horses, sheep, and other animals found running at large in the public streets during the night, and for selling them to pay charges for impounding, etc., without judicial inquiry or determination upon notice being given to the owner; and such provisions will not be unconstitutional, as authorizing the forfeiture or confiscation of property without due process of law or without compensation.
W. S. Laidley for plaintiff in error, cited 9 W. Va. 165; 11 W. Va 501; 28 W. Va. 699; Horr & Benn. Mini. Pol. Ord. §§ 33, 139; 27 W. Va. 268; 3 Wheat. 246; 14 Wall, 56; 15 Pac. Pep. 399; 95 IT. S. 97; 111 IT. S. 701; 6 Waite 639; Dill. Mun. Corp. (14th Ed.) §§ 421, 350; 8 A. M. St. Rep. 271; 55 Am. Pep, 589; 97 Am. Dec. 88; 86 Ala. 354; 5 So. Rep. 678; 15 Pac. Rep. 599; Sedw. Stat. & Con. 435; 44 Barb. 472; 60 Barb. 391; 4 la. 296; 30 111. 459; Cool. Cox Lim. 586 note 587; 8 B. Mon. 433; 1 La. Ann. 385; 6 Ired. 268; 5 Am. St. Rep. 500; 80 Ohio 523; 26 N J. 67; 78 Ky. 86; 80 Ind. 487.
S. C.-Burdett, in pro. per. cited 80 Ind. 489; 18 Ohio 523; Dill. Mun. Corp. (3 Ed.) §§ 150, 347, 348; 2 Dutch 67; Cool. Con. Lim. 363, 364 and note; 11 Mich. 147; 35 N. Y. 307; 51 111. 286; 78 Ky. 88; 41 Pa, St. 482; 44 111. 362; 51 Ill. 286; 4 Ark. 161.
On the 7th day of August, 1889, S. C. Burdett instituted an action of detinue against Dover Allen before C. W. Hall, a justice of the peace of Kanawha county, in which the plaintiff complained that the defendant unlawfully withheld from him one brindle cow of the value of fifty dollars. The plaintiff filed affidavit and gave bond for the immediate possession of the property. On the 28th day of August the case was heard, and judgment was rendered for the plaintiff that he retain possession of the property, and that he recover from the defendant his costs in the said suit. From this judgment the defendant took an appeal to the Circuit Court of said county, and on the 10th day of April, 1890, said appeal was submitted to the Circuit Court of Kanawha county upon an agreed statement of the facts, upon consideration whereof, and after hearing the argument of counsel thereon, the said court was of opinion that the ordinance of the city of Charleston in relation to the impounding and sale of animals is unconstitutional, and rendered judgment for the plaintiff for said property claimed in said action and for costs, and from this judgment the defendant applied for and obtained tins writ of error.
It was agreed between the plaintiff and the defendant that the following are the facts to be taken as proven by the respective parties: By the plaintiff: that he lives in Charleston, and that he is the owner of the cow which the suit is about; that on the evening of the 7th day of August, 1889, the plaintiff found Ins said cow in charge of Dover Allen, the city pound-master, and that lie demanded the release of his cow, winch was refused until the charges thereon were paid, and to pay the same or any sum the plaintiff declined, and thereupon he brought said action, and the said cow was delivered to him by the constable on the order of the justice aforesaid, and that on the trial of said action before the said justice judgment was given for the plaintiff, the said court holding that said ordinance under which the said cow was held was unconstitutional and void.
Also the charter and ordinances of the city were put in evidence.
By the defendant: that he was on the 6th day of August, 1889, and has since been, and is yet, pound-master of the city of Charleston; that he was then, and is yet, exercising the duties of said office under and by virtue of the ordinances of said city; that on the night of the 6th day of August, 1889, between 10 and 12 o'clock, the said Allen, with two boys he had to assist him in hunting for and driving in stray cows, were out on the street, and found said cow of plaintiff in the public street, and that they drove her to the city pound, and fastened her therein that night and kept her in said pound until taken away by the constable the next day; that on the evening of the 7th of August the plaintiff came and demanded his cow, claiming her, and defendant demanded his fees etc., allowed him by the city ordinance, which at that time amounted to two dollars, and the plaintiff refused to pay the same, and thereupon the defendant refused to give up the cow, and the plaintiff brought said action before Justice Hall, and upon his order the constable took the cow from the defendant; that the said charges of two dollars are still unpaid; that upon the trial before the said justice his decision was that the said city ordinance was unconstitutional and void, and he gave judgment for the plaintiff, from which judgment the said defendant appealed; that the said lot in which said cow was impounded was the city pound, made so under and by virtue of an ordinance adopted June 30, 1887; and this? was all the evidence adduced.
The counsel for the defendant in error contends that the ordinance of the city of Charleston, under which the property of said defendant in error was seized and impounded, is void because (1) there is no express authority conferred by the charter, either in chapter 47 of the Code or the special charter of the city of Charleston; that the power to impound and sell animals must be expressly conferred, and a general authority given to prevent animals from running at large is not sufficient. The first section of chapter 47 of the Code provides that "a city, town, or village heretofore established (other than the city of Wheeling) may exercise all the powers conferred by this chapter, although the same may not be conferred by their charter, and that, so far as said chapter confers powers on the municipal authorities of a city, town, or village (other than said city of Wheeling) not conferred by the charter of any such city, town, or village, the same shall be deemed an amendment to said charter; and section 28, which prescribes the powers and duties of the council, provides, among other things, that such council shall have power therein "to prevent hogs, cattle, horses, sheep, and other animals and fowls of all kinds from going at large in such city, town, or village;" and section 29 of said chapter provides that, "to carry into effect these enumerated powers and all others conferred upon such city, town, or village, or its council, by this chapter, or by any future act of the legislature of this state, the council shall have the power to make and pass all needful orders, by-laws, ordinances, resolutions, rules, and regulations not contrary to the constitution and laws of the state, and to prescribe, impose, and enact reasonable tines, penalties, and imprisonments in the county jail. * * * Such tines, penalties, and imprisonments shall be recovered and enforced under the judgment of the mayor of such city, town, or village or the person lawfully exercising his functions.
The ordinance of the city of Charleston in reference to the public pound was put in evidence in this case, and the first section thereof provides that the inclosure attached to the city hall be, until otherwise ordained by the council, constituted the public pound for the impounding of animals therein subject to be impounded.
It also provides in section 2 that "it shall be unlawful for any person being the owner or having charge of any cow, calf, or ox to allow the same to run at large between sunset and sunrise in any of the streets, lanes, alleys, or commons of said city below the Elk and Piedmont roads."
Section 4 provides: "It shall be the duty of the poundmaster, on view or information, forthwith to take up all or any such animals running at large as aforesaid, and shut up the same in the public pound," there to be retained and fed until disposed of as thereinafter provided. Section 5 provides that the owner shall he notified forthwith; and section 6 provides that, in case the owner shall not within forty eight hours after giving said notice appear and prove his right to such animal, the pound-master shall make his return to the mayor, setting forth the number and kind of animals taken up, time when taken, owner of the animal, if known, the fact of giving the notice, and that forty eight hours have passed since such notice was given or posted, and that the animal or animals still remain in the pound unclaimed.
Section 7 provides that the mayor shall then direct the sergeant to advertise and sell said animals, and prescribes the mode of advertisement; and further directs that the sergeant shall make return to the mayor of his proceedings, and shall pay all surpLus money arising from said sales to the treasurer; and section 9 provides that "any person being the owner * * * of such animal," who shall within one year show to the mayor that he was such owner, shall have any surplus in the hands of the treasurer arising from the sale of such animal paid over to him, said surplus to be paid on the order of the council.
These ordinances, enacted under the power so to do conferred by section 29 of chapter 47 of the Code, appear to me to confer express authority upon the pound-master, acting in connection with, and under the supervision of, the mayor, to impound cattle found running at large in the city, and hold them until the fees and costs are paid, or to sell the same after notice to the owner, and, after deducting said costs and fees, to pay the residue to the owner when he asserts his claim thereto.
It is true that Dillon on Municipal...
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