City of Pueblo v. Kurtz

• Decision Date: 07 July 1919
• Docket Number: 9181.
• Parties: CITY OF PUEBLO v. KURTZ.
• Court: Colorado Supreme Court

182 P. 884

66 Colo. 447

CITY OF PUEBLO v. KURTZ.

No. 9181.

Supreme Court of Colorado

July 7, 1919

Error to District Court, Pueblo County; J. E. Rizer, Judge.

Action by G. Kurtz against the City of Pueblo. Judgment for plaintiff, and the City brings error. Reversed, and new trial granted.

John A Martin and Charles M. Rose, both of Pueblo, for plaintiff in error.

James A. Park and Benjamin F. Koperlik, both of Pueblo, for defendant in error.

DENISON, J.

This was an agreed case, tried in the district court of Pueblo county. The plaintiff, Kurtz, had judgment. The agreed facts were that 18 head of cattle belonging to Kurtz were impounded by the city under the provisions of an ordinance passed by the city council under the powers given by a charter adopted by the city under article 20 of the Constitution. The city before it would surrender the cattle, required of Kurtz an impounding fee of $1 per head, which he refused to pay. The cattle were kept several days and then, by agreement, Kurtz gave a bond to secure the $1 per head and the keep of the cattle should it be determined that the ordinance was valid and the fee reasonable, and the cattle were surrendered. The agreed facts were presented to the district court, which decided in favor of Kurtz, and the city brings error.

Section 1 of the ordinance provides that----

'* * * No horse, ass, mule nor any cattle, sheep or goats shall be permitted to run at large * * * and any such animal so found at large shall be taken up and impounded. * * *'

Other sections of the ordinance provide proceedings for sale; section 10 provides for taking up and impounding of fowls running at large, and an amendment provides, in addition to the fees provided for by the ordinance, the sum of $1 as a pound fee for each animal so impounded. This was the fee which the plaintiff refused to pay.

There is a statute, approved April 9, 1907, providing for the taking up and impounding of cattle running at large. R. S. of Colo. §§ 6437 to 6443.

The defendant in error makes three points against the validity of the provision concerning the pound fee:

(1) That it invades the function of the Legislature;

(2) That it gives the owner of the cattle no day in court.

(3) That the amount, $1 per head, is unreasonable.

We think he is wrong on all three points.

As to the first point, it is unquestionable, and he concedes that the city had a right to impound animals running at large. It follows both on principle and precedent that they have the right to charge the delinquent owner a reasonable amount for so doing.

It is argued, however, that since the Legislature has provided what expenses may be incurred and charged to the owner in taking up and impounding estray cattle, the city cannot add to them but the city has the right under the twentieth article and the Home Rule Amendment to adopt any provision for its charter on subjects local and municipal or ...