Best v. Broadhead

SULLIVAN, C. J. This action was commenced to recover from the defendant the value of two mares with their sucking colts and one bay mare about two years old, alleged to have been wrongfully taken by the defendant from the plaintiff and converted to his own use, and for damages for their detention and $100 attorney’s fee for prosecuting the action. <vThe defendant by his answer denied the allegations of the [13] complaint and as an affirmative defense averred that he was poundmaster of the village of Post Falls, Kootenai county, and that said village had by an ordinance duly enacted, provided for impounding and selling horses running at large, and on the 8th day of May, 1906, while said ordinance was in full force and effect, the defendant, as poundmaster and- acting under said ordinance, took up and impounded said horses and colts, and alleges that the ordinance was complied with in all respects, and that thereafter the animals were sold by the village marshal of the village of Post Falls, and that at such sale, which was by public auction, the defendant purchased the two year old mare, also one mare with her sucking colt, and alleges that this was the way and none other in which he had said animals, and asked for judgment upon that state of facts. The ordinances under which the defendant claimed to be acting as poundmaster were set out and made a part of the answer. Upon the issues thus made the cause was tried by the court with a jury, and verdict and judgment rendered and entered for the plaintiff for $375 damages and costs of suit. A motion for a new trial was denied, and this appeal is from the judgment and the order denying a new trial. On the trial the court excluded the ordinances of the village of Post Falls providing for impounding horses and other animals which were found running loose in the village. The court held that under the provisions of subd. 15, see. 15, of an act to amend see. 73 of an act entitled, “An act to provide for the organization, government and powers of cities and villages, ’ ’ etc., Sess. Laws 1905, p. 113, that no authority was given to a city or village to pass ordinances for the purpose of impounding stray horses, and held that said statute enumerated certain animals, and that such animals excluded all animals not therein named, regardless of the general clause of said section providing for the regulation of running at large of “other animals,” after enumerating cattle, hogs, mules, sheep, goats and dogs. Thus holding, the court would not permit the defendant to introduce in evidence the ordinance of said village providing for the impounding of horses [14] and other animals, and thus shut out entirely the defense pleaded by the defendant to the effect that said horses were taken by the poundmaster when running loose in the village of Post Falls and impounded and sold under the provisions, of said ordinance. While there are a number of assignments of error going to the admission and rejection of evidence, they substantially all rested upon the proposition that they were immaterial for the' reason that said village had no authority whatever to pass, an ordinance to prevent the running at large of horses in said village, and for that reason horses could not be impounded under said ordinance. In support of this decision, counsel for appellant cites from the act concerning cities and villages, found in the Laws of 1899 at page 204, Laws of 1901, p. 100,. and Laws of 1903, p. 222, the provision authorizing villages: to pass ordinances regulating the running at large of animals. Each and every one contains, among other animals named, “horses,” but that that provision was amended by the Laws of 1905 and the'word “houses” was omitted and said provision made to read as follows: “Regulate the running at large of cattle, hogs, mules, sheep, goats, dogs and other animals and to cause such as may be running at large to be impounded and sold to discharge the cost and penalties provided for the violation of such prohibition, and the expense of impounding and keeping the same, and of such sale.” And it is contended that whatever the purpose of the legislature was in omitting the word “horses” from said section, it is not open to discussion, and that it was evident the legislature may have come to the conclusion that the running at large of horses ought to be permitted, while hogs, mules, sheep, goats and other ainmals should not be permitted to run at large, and for that reason the court did not err in refusing to admit said ordinance in evidence. In support of that contention Black on Interpretation of Laws, p. 141, and Sutherland on Statutory Construction, sec. 268, are cited. The trial court evidently took the position that although former statutes in regard to cities and villages regulating ani [15] mals running at large contained among other animals enumerated “horses,” that because of its omission in the statute as amended by the Laws of 1905, it was the purpose and intent of the legislature to prohibit cities and villages from regulating the running at large of horses, and that “other animals,”" as used in said section, did not include horses. We find on an examination of the Session Laws of 1907 that., the legislature, in amending said act in regard to cities and', villages, inserted the word “horses” in said section 15, and made said section read the same as it did prior to its amendment in 1905. It is clearly evident that the word “horses” was left out. of the act of 1905 by mistake or carelessness, as there could' be no reason why mules should be prevented from running at large in a village and horses be permitted to do so, and we ■ conclude that the words “other animals,” as used in said section in the act of 1905 is broad enough to and does include horses and was intended to include all other animals not spe- ■ cially enumerated. The rules of interpretation as stated in Black and Sutherland are useful as a guide in determining • the probable intention of the legislature, but if it should be • apparent in any particular case that the legislature did not in fact intend that its express mention of one thing should operate as an exclusion of all others, then the maxim, “Ex-pressio unius est exclusio alterius,” must give way. We are clearly of the opinion that cities and villages have the power - by proper ordinance to regulate the running at large of' horses, and the court erred in holding that the village of Post Falls had no authority under the Laws of 1905 to regulate the running at large of horses within the limits of such village. In our view of the ease, it is not necessary for us to pass upon all of the other assignments of error, for they all revolve around the action of the court in holding that the vil- • lage had no authority to enact said ordinance. The answer-of the defendant pleads a complete defense- to this action, and the court should have admitted all pertinent and relevant. evidence which tended to establish that defense, and on a re16 trial ordinances and all other evidence offered tending to establish that defense ought to be admitted. (April 19, 1910.) (Syllabus by the court.) 1. Under the provisions of sec. 2276, Bev. Codes, an ordinance must contain no subject -which shall not be clearly expressed in its title. 2. The title of an ordinance, “An act relating to domestic animals and prohibiting their running at large,” is sufficient to authorize the incorporation in such ordinance of provisions incident to and regulating animals running at large, such as naming the kind, the territory or place in which they shall not run at large, the impounding and sale, the fees to be collected, and the penalty. It is sufficient if the title in its general scope clearly expresses the objects and purposes of the ordinance. 3. Sec. 2274, Bev. Codes, providing, "The style of all ordinances shall be: ‘Be it ordained by the mayor and council of the city of - or the chairman and board of trustees of the village of -,’ ” is directory, and the enacting clause of a village ordinance as follows: “Be it ordained by the town of Post Palls,” is sufficient, as such enacting clause indicates the intention and declaration of the village to legislate. 4. Under the provisions of see. 2276, Bev. Codes, “no ordinance or section thereof shall be revised or amended unless the new ordinance contain the entire ordinance or section as revised or amended, and the ordinance or section so amended shall be repealed.” Under this provision of the statute, an amendatory ordinance which purports to amend an ordinance by inserting therein particular language without indicating where such insertion shall be made, or containing the entire ordinance as amended, or the particular section amended, is void. 5. Where the provisions of an amendatory ordinance are illegal and void, and it is apparent that such amendment is to be substituted for the ordinance repealed, or for a particular part thereof, the illegal and void character of the repealing ordinance will also render void the repealing clause. [16] The judgment of the court must be reversed and the cause remanded for a new trial, and it is so ordered, with costs in favor of appellant. Stewart and Ailshie, JJ., concur.