Tinsley v. City of Caruthersville

• Decision Date: 11 December 1906
• Citation: 98 S.W. 800,121 Mo.App. 142
• Parties: TINSLEY, Appellant, v. CITY OF CARUTHERSVILLE et al., Respondents
• Court: Missouri Court of Appeals

98 S.W. 800

121 Mo.App. 142

TINSLEY, Appellant, v. CITY OF CARUTHERSVILLE et al., Respondents

Court of Appeals of Missouri, St. Louis

December 11, 1906

Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.

AFFIRMED.

Judgment affirmed.

W. W Corbett for appellant.

Faris & Oliver for respondents.

Plaintiff has an adequate remedy at law. If the ordinance under and by virtue of which his one heifer was impounded, was invalid the question of its invalidity and legality can and should be tested by the proper action at law, replevin. Spitler v Young, 63 Mo. 42; Shy v. Richards, 79 Mo.App. 661; Gilmore v. Harp, 92 Mo.App. 77; Jeans v. Morrison, 99 Mo.App. 208; McVey v. Barker, 92 Mo.App. 498.

OPINION

BLAND, P. J.

--The suit is in equity to enjoin defendants from enforcing an ordinance of the defendant city. The petition (omitting caption and signatures) is as follows:

"Plaintiff states that the defendant, the city of Caruthersville, is a municipal corporation, incorporated as a city of the fourth class, under and by virtue of the laws of the State of Missouri, with power to sue and to be sued, to plead and to be impleaded.

"That plaintiff and each of them reside in and near the south boundary line of the city of Caruthersville, and that the said plaintiff Tinsley is a taxpayer of said city. That he is owner of and handles a large quantity of stock, such as cattle, hogs, horses, mules, etc., that his said stock are accustomed to range around his residence, and at times are liable to wander into the corporate limits of the city.

"Plaintiff further states that on the sixth day of April, 1903, the board of aldermen of said city attempted to pass or enact an ordinance, which said ordinance is in words and figures as follows, to-wit:

"'Be it ordained by the board of aldermen of the city of Caruthersville, Missouri, as follows: Section No. 1. That ordinance No. 218 as passed and approved by the Board of Aldermen on the second day of July, 1900, be and the same is hereby repealed, and a new section to be numbered section No. 1 enacted in lieu thereof, which said section shall read as follows: Section No. 1. Any horse mule, ass, cow, goat, hogs or goose found running at large upon any street, lane, alley, commons or other public places within the limits of this city is hereby declared to be a common nuisance. The notices, procedure and fees hereinafter prescribed in this article in the case of horses shall also apply to the taking up of cows and hogs found astray. Approved and signed by the Mayor and attested by the clerk.'

"Plaintiff states that the ordinance as aforesaid is illegal, invalid, unjust and oppressive, and among other reasons for this charge, is the following: First, that the ordinance is not complete within itself, that it attempts to enact by reference. Second, that the ordinance does not provide how the animals therein mentioned are to be restrained, it does not fix and establish a place of restraint. Third, it does not provide a mode by which the owners of said animals are to regain possession of the same, even by the payment of a fixed and definite sum. Fourth, it does not provide for a proper and legal disposition of the animals. Fifth, the board of aldermen attempts to create a stray law, which ordinance is in conflict with the statute law of the State of Missouri. Sixth, it does not provide a remedy for first obtaining a judgment for violation of said ordinance, nor a mode by which the owners of said animals may have their day in court. Seventh, that said ordinance declares said animals to be a common nuisance. Eighth, it deprives the owners of said animals of their property without due process of law.

"Plaintiff charges and avers, that acting under the supposed authority given by this ordinance, the defendant corporation acting through its officers have colluded and confederated with the defendant W. A. Boatright, who has offered and still offers children or any person one-half of the fees he might demand and receive from the owners of such animals for taking them up and redelivering them, under pretense that they were being legally impounded under said ordinance, and that by reason of said understanding the children of the town,...