State v. The City of Topeka

Citation36 Kan. 76,12 P. 310
PartiesTHE STATE OF KANSAS, ex. rel. Charles Curtis, County Attorney, v. THE CITY OF TOPEKA
Decision Date09 December 1886
CourtUnited States State Supreme Court of Kansas

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...

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