City of Burlington v. Stockwell

• Decision Date: 03 March 1897
• Docket Number: 350
• Parties: CITY OF BURLINGTON v. JOHN STOCKWELL
• Court: Kansas Court of Appeals

47 P. 988

5 Kan.App. 569

CITY OF BURLINGTON v. JOHN STOCKWELL

No. 350

Court of Appeals of Kansas, Southern Department, Eastern Division

March 3, 1897

March 3, 1897.

Appeal from Coffey District Court. Hon. W. A. Randolph, Judge. Affirmed.

Judgment affirmed.

S. D Weaver, and E. J. Crego, for appellee.

Geo. E Manchester, for appellant.

OPINION

DENNISON, P. J.

This was a criminal prosecution in the Police Court of the City of Burlington, against John Stockwell, for the violation of a city ordinance. The defendant was convicted in that court and appealed therefrom to the District Court, where upon trial he was again convicted and sentenced to pay a fine of five dollars and the costs of the case. From this judgment he appeals to this court.

The complaint, omitting the formal parts, reads as follows:

"W M. Venard, being duly sworn, on oath says that on or about the first day of August, A. D. 1894, in the city of Burlington, county of Coffey, and State of Kansas, one John Stockwell did then and there, ever since has and does now, unlawfully keep and use certain yards and pens on the premises under his control, to wit: lots eleven and twelve and thirteen in block thirty-three in said city of Burlington, in and upon which said yards and pens, a number of swine, to wit: about twenty swine, were then and there, ever since have been and now are, kept, in such manner that such yards and pens then and there became, ever since have been and now are, foul, injurious and offensive, and did then and there, ever since have and now do cause and create a stench and noxious, disagreeable and unhealthful smell, and thereby said yards and pens then and there became, ever since have been and are now, offensive to persons residing in the vicinity of said yards and pens and annoying to the public, and is and was a nuisance, contrary to the ordinance of said City in such cases made and provided and against the peace and dignity of said City.

The complaint and subsequent prosecution thereunder were based on the following ordinance of the City of Burlington:

"Ordinance No. 12, An ordinance relating to nuisances.

"Be it ordained by the mayor and councilmen of the City of Burlington:

"SEC. 5. If any person or persons shall own, keep or use any yard, pen or place on his or her premises, or premises under his or her control, within this City, in or upon which any number of cattle, swine or other animals may be kept in such manner as to become offensive to any persons residing in the vicinity, or annoying to the public, he or she shall be deemed to maintain a nuisance in this City, and shall be fined in any sum not exceeding one hundred dollars."

The contention is that the City authorities had no power under the Constitution and laws of the State to pass the ordinance upon which this prosecution is founded. It is plain that the council of a city of the second class has the authority to prevent and remove nuisances by an ordinance which provides a punishment by a fine or imprisonment or both. Paragraph 817 of the General Statutes of 1889 provides that, "the council may . . . prevent and remove nuisances."

Paragraph 824 provides:

"For any purpose or purposes mentioned in the preceding sections, the council shall have power to enact and make all necessary ordinances, rules and regulations . . . and all ordinances may be enforced by prescribing and inflicting upon inhabitants or other persons violating the same, such fine not exceeding one hundred dollars or such imprisonment not exceeding three months, or both such fine and imprisonment, as may be just for any one offense, recoverable with costs of suit, together with judgment of imprisonment until the fine and costs be paid or satisfied; and any person committed for the non-payment of fine and costs or either, while in custody, may be compelled to work on the streets, alleys, avenues, areas and public grounds of the city under the directions of the street commissioner or other proper officer, and at such rate per day as the council may by ordinance prescribe, until such fine and costs are satisfied."

The attorney for the appellant contends that cities of the second class have not the power to declare those annoyances peculiar to stock yards and hogpens nuisances and to punish the keeper thereof for the maintenance of the nuisance, unless they are detrimental to the public health and general welfare of the city. This contention is based upon the fact that in the eleventh subdivision of paragraph 555, General Statutes of 1889, the mayor and council of cities of the first class are given power to prevent and remove nuisances, and also to suppress hogpens, slaughterhouses and stock yards, or to regulate the same, and prescribe and enforce regulations for cleaning and keeping the same in order. It is argued that, as the Legislature granted cities of the first class the same power to "prevent and remove nuisances" that it gave to cities of the second class, and that as it also gave to cities of the first class, in addition thereto, the power to "suppress and regulate hogpens," that this is a legislative construction determining that the power to "prevent and remove nuisances" does not include the power to "suppress and regulate hogpens." The legal principle claimed will be admitted, but the application is not correct. Under these statutes a city of either the first or second class has the power to prevent and remove nuisances. This will include everything that comes within the legal definition of a public nuisance. A city of the first class also has the power to suppress hogpens or to regulate them although they may not be legally a public nuisance. A city of the second class has no such power.

It is also contended that the statute gives cities...