Incorporated Town of Sibley v. Lastrico

• Decision Date: 18 January 1904
• Citation: 97 N.W. 1074,122 Iowa 211
• Parties: THE INCORPORATED TOWN OF SIBLEY, IOWA, Appellant, v. PETER LASTRICO
• Court: Iowa Supreme Court

97 N.W. 1074

122 Iowa 211

THE INCORPORATED TOWN OF SIBLEY, IOWA, Appellant, v. PETER LASTRICO

Supreme Court of Iowa, Des Moines

January 18, 1904

Appeal from Osceola District Court.--HON. WILLIAM HUTCHINSON, Judge.

IN an information filed with the mayor of Sibley, the defendant was accused of violating section 24 of Ordinance 48 of tat town by allowing two dogs belonging to him to run at large on the streets without being muzzled, and beyond his immediate control. The ordinance provided "that it shall be unlawful for any dog to be allowed to run at large within the limits of said town without being securely muzzled, and any owner of any dog who shall allow the same to run at large or go beyond his or her immediate control without being so muzzled shall be deemed guilty of a misdemeanor and punished accordingly." The defendant demurred on the ground that the city council, in enacting the ordinance, exceeded its powers. The demurrer was overruled, and the defendant was fined. Thereupon he appealed to the district court, where the demurrer was sustained, and defendant discharged. The state appeals.

Reversed.

C. M Brooks for appellant.

O. J Clark for appellee.

OPINION

LADD, J.

The statute is not criticised for authorizing the destruction of the dog when running at large, because of the absence of a muzzle, even though this be without intentional wrong, and in obedience to its natural propensity to roam. The fault found by the state is that, while conceding the right of town and city councils to ordain its death, the effect of the construction of the statute by the district court was to shield from punishment the real culprit, its master, who, by failing to provide the animal with a proper covering for its nose, has exposed its life to danger. In construing a statute, unjust discrimination is always to be avoided, if possible. The section of the Code under which the ordinance was enacted provides that cities and incorporated towns "shall have the power to regulate, restrain, license or prohibit the running at large of dogs within their limits and to require them to be kept upon the premises of the owners thereof, unless licensed to run at large, and to provide for the destruction thereof when found at large contrary to and in violation of the provision of any ordinance or by-law passed pursuant to the power herein granted." Section 707 Code. How shall the council "regulate, restrain, license or prohibit the running at large of dogs?" This must necessarily be done through the owners or those harboring the dogs. The statute is directed at men, not animals. This thought is emphasized by the next passage, conferring on the council the power "to require them to be kept on the premises of the owners thereof." If they are to be kept, somebody must keep them. This may be compelled. But how? Surely not by killing the dogs. Why not deal with the owners by whose fault the ordinance regulating their conduct has been violated? Section 680 of the Code confers on town and city councils authority to carry into effect all powers given, and to enforce obedience to ordinances by fine and imprisonment. Is there anything in section 707 of the Code precluding the application of this statute? We think not. Eliminate the sentence relating to the destruction of the dogs, and there could be no question as to the validity of the ordinance prescribing a penalty by fine and imprisonment. But killing the dogs cannot be treated as punishing men who violate the ordinance enacted in pursuance of the statute. Their destruction is authorized to enable the municipal authorities to clear the streets of strays or those not cared for, thereby to guard travelers against possible danger from...