Wilson v. Beyers

• Decision Date: 01 December 1892
• Citation: 32 P. 90,5 Wash. 303
• Parties: WILSON v. BEYERS, TOWN MARSHAL.
• Court: Washington Supreme Court

32 P. 90

5 Wash. 303

WILSON v. BEYERS, TOWN MARSHAL.

Supreme Court of Washington

December 1, 1892

Appeal from superior court, Douglas county; Wallace Mount, Judge.

Replevin by W. C. Wilson against Robert Beyers, town marshal of the town of Waterville. Judgment for defendant. Plaintiff appeals. Reversed.

Geo Bradley, for appellant.

Pendergast & Malloy, for respondent.

DUNBAR J.

This cause was submitted to the court on an agreed statement of facts, which involved the validity of a certain town ordinance of the town of Waterville, (a town of the fourth class), providing for the impounding and sale of cattle running at large upon the public streets of said town. Plaintiff brought his action in replevin for certain cattle sold by defendant, and said to be unlawfully detained by respondent, who, as city marshal of said town of Waterville, seized the cattle under the provisions of said ordinance. Defendant moved for judgment upon the agreed facts, and judgment was rendered upon said motion in his favor, and plaintiff appeals. The contention of the appellant is that the ordinance in question is void, for two reasons (1) That it is in violation of section 3, art. 1, of the constitution of the state of Washington; ^[1] (2) that said ordinance is invalid because the said town had no authority under the statute to pass it.

So far as the first proposition is concerned, there can be no doubt that the overwhelming weight of authority is opposed to the contention of appellant, and that the right to restrain cattle from running at large, under the provisions of the ordinance passed in conformity with the grant of such power by the legislature, is a valid exercise of police power, and is not violative of any constitutional provision. Such power has been conferred on municipal corporations from time immemorial, and is founded on public necessity, protection of public health, safety, and comfort; and but few courts have questioned its validity. There have been many contentions over the reasonableness or unreasonableness of the notice given by the provisions of the ordinance, and many decisions holding the notice unreasonable, but they did not go to the right of the city to pass an ordinance of this character. In other cases the ordinance provided for the collection of the damages which the stock may have done, and some courts have decided that the question of damages should be submitted to a jury. This was the question decided in Bullock v Gamble, 45 Ill. 218, cited by appellant. In Willis v. Legris, 45 Ill. 289, cited by appellant on this point, the question of a penalty was involved, which is not involved in the case at bar. Sustaining the validity of this and kindred ordinances, we cite: Dill. Mun. Corp. §§ 308,350; Cooley, Const. Lim. §588; McKee v. McKee, 8 B. Mon. 433; Jarman v. Patterson, 7 T. B. Mon. 644; Brower v. Mayor, 3 Barb. 254; Milhau v. Sharp, 17 Barb. 435; Van Wormer v. Mayor, 15 Wend. 262; Mayor v. Lanham, 67 Ga. 753; Com. v. Bean, 14 Gray, 52; Brophy v. Hyatt, 10 Colo. 223; Spitler v. Young, 63 Mo. 42; Folmar v. Curtis, 86 Ala. 354, 5 So. Rep. 678; 10 Amer. & Eng. Enc. Law, 187, and cases cited. So far as the question of notice is concerned, as not being due process of law, proceedings under the ordinance are proceedings in rem. It is only the property that is dealt with; no personal liability attaches to the owner; and in an action in rem constructive service by publication is sufficient to give validity to the judgment obtained.

The second proposition, however, is more troublesome. The statute does not, in express terms, grant the power to the city council of cities of the fourth class to pass ordinances for the impounding of cattle or other stock, or to restrain them from running at large within the city limits. The question then, is, has this power been conferred by necessary implication? As a general proposition it may be said that the city corporation is an inferior body, and has no other powers than those which have been expressly delegated to it, and their appropriate incidents. But what the appropriate incidents of expressly conferred powers are, is a question exceedingly difficult to determine, and one which has provoked the announcement of many conflicting opinions by the courts; and the text writers, while assuming to lay down rules for the construction of the statutes in such cases, leave the meaning of the rule so clouded as to render it of little assistance to the courts. Thus, in Horr & B. Mun. Ord., it is announced in section 18 as follows: "The charter or statute granting powers to municipal corporations usually enumerates those which may be exercised. It is a general rule that all powers not mentioned in the enumeration, and not incidental to those enumerated, are not intended to be included in the grant. All other powers are impliedly excluded." All the force of the rule of construction thus laid down is, however, annulled by the following proviso: "But enumeration of special cases does not, unless the intent be apparent, exclude the implied power, any further than necessarily results from the nature of the special provisions." These oracular announcements, when construed together, contain no rule of construction whatever. The rule of strict construction against the corporation is, however, thus laid down by Judge Dillon in his work on Municipal Corporations, (section 89 and notes:) "Corporate power, being delegated, must be strictly construed and plainly conferred. Whenever a genuine doubt arises as to the right to exercise a certain power, it must be resolved against the corporation, and in favor of the general public. This rule is most strictly observed in construing powers...