City of Faribault v. Wilson

• Decision Date: 14 November 1885
• Citation: 34 Minn. 254
• Parties: CITY OF FARIBAULT <I>vs.</I> W. J. WILSON.
• Court: Minnesota Supreme Court

Page 254

34 Minn. 254

CITY OF FARIBAULT vs. W. J. WILSON.

Supreme Court of Minnesota.

November 14, 1885.

Appeal by defendant from a judgment of the district court for Rice county.

Baxter, Townley & Gale, for appellant.

A. D. Keyes, for respondent.

GILFILLAN, C. J.

The charter of the city of Faribault (Sp. Laws 1872, c. 11, subc. 3, § 3, subd. 9, p. 108, as amended by Sp. Laws 1878, c. 27, § 3, p. 243) authorizes the council "to regulate or prevent the running at large of dogs, to require license for keeping the same, and impose a fee for such license and a tax upon dogs, and authorize the destruction of the same in a summary manner when not licensed, or when at large contrary to the ordinance." The council passed an ordinance containing these provisions: "Section 1. That any dog, bitch, or slut, or any animal of the dog kind, owned by or being in the possession of any resident or any person in the city of Faribault, shall be registered by such person or resident with the city recorder on the first day of July of each year, and shall at the same time pay to the city recorder, for the use of the city, a license of one dollar on each dog and three dollars on each bitch or slut so owned or possessed by such resident or person. Every owner or possessor of any dog, bitch, or slut, or any animal of the dog kind, shall procure from the city recorder a certificate, which shall state therein the number and date of such license, the name of such owner or possessor, and the name of such dog, bitch, or slut so licensed;" and also providing for a fine not exceeding $10 and costs upon any one violating those provisions, and imprisonment not exceeding 30 days until such fine and costs shall be paid.

Defendant was prosecuted and convicted before a city justice for violating this ordinance, and appealed to the district court, and, being convicted in that court, also appeals to this court. Various questions are raised on the appeal, which we will consider in the order in which they are presented.

1. That the prosecution should have been in the name of the state. The complaint to the justice was in proper form; the warrant ran in the name of the state, but in the record of the proceeding, and in the various papers issued in it subsequent to the warrant, the action is entitled in the name of the city. Even if it were a criminal prosecution within the meaning of Gen. St. 1878, c. 65, § 142, this would be a mere irregularity, not affecting the jurisdiction, nor, as the record fully discloses the character of the proceeding, so as to protect defendant against another prosecution for the same offence, affecting any substantial right, and should be disregarded. State v. Graffmuller, 26 Minn. 6.

2. That the complaint should have set forth the ordinance. As the ordinance had, within the city of Faribault, the force and effect of law of which all persons were bound to take notice, it was sufficient, under Laws 1881, (Ex. Sess.,) c. 59, to refer to it, as the complaint does, by stating the number of the ordinance, and the number and subject of the section alleged to have been violated; and it was enough to allege that the offence was in violation of the section, instead of using the words in chapter 59, "contrary to the form," as the allegations are in legal effect precisely equivalent.

3. That it was not competent for the legislature to authorize the council to pass any ordinance making the acts or omissions charged an offence. The power to regulate the keeping of dogs, and to enforce such regulations by forfeitures, fines, and penalties, is one that has been very...