Decided
July, 1886
[Copyrighted Material Omitted]
Original Proceedings in Quo Warranto.
ACTION
in the nature of quo warranto, brought in this court November
13, 1885, in the name of the state of Kansas, to oust the
city of Topeka from the exercise of certain powers. The
provisions of the constitutions of the United States and of
the state of Kansas, and of the statutes and city ordinances
applicable to the case, read as follows:
"SECTION
1. Neither slavery nor involuntary servitude, except as a
punishment for crime, whereof the party shall have been duly
convicted, shall exist within the United States or any place
subject to their jurisdiction." (U. S. Const., art
XIII, § 1.)
"SEC
1. . . . Nor shall any state deprive any person of life,
liberty or property without due process of law, nor deny to
any person within its jurisdiction the equal protection of
the laws." (U. S. Const., art. XIV, § 1.)
"SEC.
5. The right of trial by jury shall be inviolate." (Kan.
Const., bill of rights, § 5.)
"SEC.
6. There shall be no slavery in this state, and no
involuntary servitude except for the punishment of crime,
whereof the party shall have been duly convicted." (Kan.
Const., bill of rights, § 6.)
"SEC.
10. In all prosecutions the accused shall be allowed to
appear and defend in person or by counsel; to demand the
nature and cause of the accusation against him; to meet the
witness face to face, and to have compulsory process to
compel the attendance of witnesses in his behalf, and a
speedy public trial by an impartial jury of the county or
district in which the offense is alleged to have been
committed. No person shall be a witness against himself, or
be twice put in jeopardy for the same offense." (Kan.
Const., bill of rights, § 10.)
"SEC.
1. Every . . . male person of twenty-one years and upwards .
. . shall be deemed a qualified elector." (Kan. Const.,
art. V, § 1.)
"SEC.
1. The legislature shall provide for a uniform and equal rate
of assessment and taxation. . . ." (Kan. Const., art.
XI, § 1.)
"SEC.
11. The mayor and council . . . shall have power . . .
Twenty-fifth. To prevent or regulate the running at large of
cattle, hogs, horses, mules, asses, fowls, sheep, goats,
dogs, and all other animals, and to cause such as may be
running at large to be impounded, and sold to discharge the
costs and penalties provided for the violation of such
regulations and the expense of impounding and keeping the
same, and of such sale, and to regulate and provide for the
taxing of owners and harborers of dogs, and to destroy dogs
found running at large contrary to any ordinance regulating
the same. . . ."
"Thirty-fourth.
Each city shall constitute a separate road district; and the
mayor and council are authorized and empowered to compel each
male resident of said city, between the ages of twenty-one
and forty-five years, to perform two days' labor, of ten
hours each, on the streets, alleys or avenues of said city,
or in lieu thereof pay to the street commissioner the sum of
three dollars. The city clerk shall make out and certify to
the street commissioner and city treasurer, on or before the
first day of April of each year, duplicate lists of persons
registered by him as voters, between the ages of twenty-one
and forty-five years, and the street commissioner shall
collect the sum of three dollars from each person so
certified by the clerk, or compel such person to perform
personally two days' labor on the streets, alleys or
avenues of said city. The street commissioner shall, every
forty-eight hours, turn over to the city treasurer all moneys
collected by him during said time, together with a list of
the persons from whom said money was collected, and shall,
once each week, make out and deliver to the city treasurer a
list of all persons who have performed their two days'
labor on the streets. The city treasurer shall place the
money collected by the street commissioner in the
general-improvement fund. All work or labor done under the
provisions of this section shall be under the superintendence
of the street commissioner. Each city shall have power to
pass all ordinances and to enforce the same by fine,
imprisonment, or both, necessary to carry out fully the
provisions of this section." (Laws of 1883, ch. 34,
§ 1, subdiv. 25, 34.)
"SEC.
51. The police judge shall have exclusive original
jurisdiction to hear and determine all cases for offenses
against the ordinances of the city." (Laws of 1885, ch.
98, § 1.)
"SEC.
60. In all cases before the police judge an appeal may be
taken by the defendant to the district court in and for the
county in which said city is situated; but no appeal shall be
allowed unless such defendant shall within ten days after
such conviction enter into recognizance, with sufficient
security, to be approved by the judge, conditioned for his
appearance at the district court of the county, at the next
term thereof, to answer the complaint against him, and for
the payment of the fine and costs of appeal if it should be
determined against the appellant." (Laws of 1885, ch.
98, § 5.)
"SEC.
65. In all cases not herein specifically provided for, the
process and proceedings shall be governed by the laws
regulating proceedings in justices' courts in criminal
cases, except that no jury shall be allowed before police
judge." (Laws 1885, ch. 98, § 7.)
An
ordinance of the city of Topeka, No. 568, reads as follows:
"SECTION
1. No person shall keep a dog in the city of Topeka after
such dog has reached the age of six weeks, unless the said
person shall comply with the following regulations: The
owner, keeper or harborer of any dog shall cause his or her
name, with the name and description of the dog, to be
registered with the city clerk of said city, in a book to be
kept by him for that purpose; and shall pay each year to said
city clerk, before any dog is registered, a registration fee
of two dollars for each male dog and five dollars for each
female dog; and shall keep upon the neck of each dog so
registered a suitable metallic or leather collar, with a
metallic check or tag, (to be furnished by said city,) and
the number and year of registry to be distinctly marked
thereon. The city clerk shall keep a suitable book for the
registry of dogs, and upon the payment to him of the fee
aforesaid he shall register the dog upon which such fee is
paid. Any person owning, keeping or harboring any dog in the
city of Topeka in violation of the provisions of this
section, shall upon conviction thereof in the police court of
said city be subject to a fine of not less than four dollars
nor more than one hundred dollars, or to imprisonment not
exceeding thirty days, or to both such fine and imprisonment.
"SEC.
2. That all registrations of dogs in the city of Topeka, as
provided in section one of this ordinance, shall expire on
the last day of April in each and every year after the
registration of any such dog.
"SEC.
3. It shall be unlawful for any person to permit his or her
dog to run at large in any public place in the city of Topeka
at any time without providing such dog with a registered
collar as provided by section one of this ordinance.
"SEC.
4. The marshal shall employ a suitable person or persons
whose duty it shall be to capture all dogs found running at
large in any public place in said city, not having a
registered collar in compliance with section one of this
ordinance, and place them in a pound to be provided for that
purpose; and if the owner does not appear in forty-eight
hours after such impounding, and claim and register such dog
or dogs, then such persons so employed shall kill the same;
the amount to be paid the dog-killers for their services to
be fixed by the city council, and the number so killed by him
to be reported weekly by the city clerk: Provided, That the
provisions of this section shall not apply to dogs not owned
or harbored in this city, unless they be found at large
without any owner or master. It shall be the duty of the city
clerk to report and pay over to the city treasurer, once in
each week, all moneys collected by him for the registration
fee, he taking the treasurer's receipt therefor."
Sections
1, 2 and 3 of an ordinance of the city of Topeka, No. 426,
read as follows:
"SECTION
1. Every male resident of the city of Topeka between the ages
of twenty-one and forty-five years is hereby required to
perform two days' labor of ten hours each on the streets
alleys or avenues of said city, or in lien thereof to pay to
the street commissioner the sum of one dollar and fifty cents
per day; and no such person shall be allowed to furnish a
substitute to do the work hereby required to be done by him:
Provided, That any person working one day with his team under
the direction of the street commissioner shall be credited in
full for two days' work.
"SEC.
2. The street commissioner shall give notice to all persons
required by this ordinance to perform work or pay money as
aforesaid, of the time and place he will attend and direct
the work to be performed, and he shall direct what implements
such persons shall bring with which to perform such work; and
whenever it shall happen in consequence of sickness, absence
from home, or other sufficient cause, that any person so
notified shall not be able to perform such work at the time
he is so notified, said street commissioner is hereby
authorized, upon application being made to him by such
person, to permit such person to perform such work at any
time prior to the first day of October next ensuing.
"SEC
3. Any person who, having been notified, shall refuse to do
two days' work, or pay the sum of one...
