Haldeman v. City of Colorado City

Mr. Justice Hill delivered the opinion of the court: ' The plaintiff in error was convicted of violating Section 1 of an ordinance of Colorado City, passed May 4th, 1908. It reads as follows: “It is hereby made and -declared to be unlawful and a nuisance for horses, asses, mules, cattle, sheep, swine and' goats to run at large within the corporate limits of the city of Colorado City and they are hereby prohibited from running at large in said city. Any such animal, so running at large,, is hereby declared to be a nuisance. Any- person who shall permit or suffer any of' the species of lcinds of animals aforesaid, belonging to him or under his -control so to run at large shall be deemed the author of a nuisance and guilty of a misdemeanor, and on conviction thereof' 'shall bé'fin'ecl' in'a sum of not less than .one [235] dollar nor more than 'ten dollars for each and every animal so permitted or suffered to run at large by him, and for each offense.” ■ • .-It; is urged-that, the city had no authority to pass this ordinance, after the passage by the legislature of the: act entitled, “An act providing for a system of procedure-by.the marshal or chief of police in cities and incorporated' towns where animals may be found running at large- contrary to ordinance; .providing for sale of same and disposi- ■ tion of-the funds-derived from such sale, and repealing all acts and parts of acts in conflict therewith.” Approved April 9, 1907. It is urged that this act provides an exclusive remedy by which boards of trustees ánd city councils must be governed in legislating pertaining to this question. ■ We cannot accept this contention. Section 6525, Revised Statutes, 1908, in part, reads as follows : “The city council and board of trustees in towns shall havefEe following' powers: *• * ■ Forty-fifth—To declare what shall be a nuisance and to abate the same, and to impose • fines upon parties who may create, continue or suffer nuisances to exist.” Unless this portion of the section was. repealed by 'the act of 1907' by implication, the city continues to have the right, by ordinance, to declare that animals running at large within the corporate limits of the city are a nuisance, and to punish, by a fine, the person who suffers or permits animals belonging to him or under his control to so Tun at large. The courts have universally held that such animal running at large within the corporate limits of a city is one of the kinds of nuisances which may be thus summarily dealt with.—Cochrane v. Frostburg, 27 L. R. A. 728; McQuillin Municipal Ordinances, Section 441, 442; 1 Dillon’s Municipal Corporations, (4th Ed.), section 402; State v. Heidenhain, 42 La. Ann. 483; [236] Nehr v. State, 35 Nebr. 638; Baldwin v. Ensign, 49 Conn. 113; Vol. 2. Cyc. p. 437; Denver v. Mullen et al., 7 Colo. 345. By a careful examination of tire act of 1907, and especially .when the objects sought to be accomplished are considered as expressed in its title, we are of opinion it' was never intended that it should repeal that portion of Section 6525, Revised Statutes 1908 above quoted; but that.its principal object was as stated in its title, to provide for a system of procedure by the marshal or chief-of police in cities and towns where animals may be found running at large, contrary to ordinance. This procedure pertains principally- to the sale of such animals and to the disposition of the funds derived from such sale. That' portion of section 1 wherein it states that where such prohibition is made by ordinance the same shall be enforced in the following manner, pertains to- its enforce- ' ment in the disposition of the animal .to which the entire' act relates. The title as well as its entire substance so indicates. ■ Section 1 provides for the giving of notice of such impounding, the length of time to be held and the limit of the expense.. Section 2, what the notice shall contain. Section 3, the cost of keep. Section 4, for the sale of the animal in case it shall not be claimed. Sections 5 and 6, as to the disposition of the proceeds. Section 7, provides what may be done with an animal in a town or city where no ordinance has been passed. And Section 8 repeals the act'of March 25th, 1887,‘(being upon the same subject)' and all othér acts or parts of acts inconsistent with the provisions of this act. ' Repeals by implication are not favored.—Lovelace v. Tabor M. & M. Co., 29 Colo. 62; Rathvon v. White, 16 Colo. 41; Canfield v. City of Lead237 ville, 7 Colo. App. 453; City of Denver v. Hart, 10 Colo. App. 452. When we take into consideration what was sought to be accomplished by the act of 1907, we find it in no way' conflicts with that portion of the provisions of General Section 6525, Rev. Stat., 1908, above quoted, and we do not believe that it was intended by this later act to provide that the impounding procedure was the only remedy that towns and cities were to have, but that in all such cases where the town or city resorted to impounding in order to prevent such animals from running at large, then the ordinance shall provide for its enforcement in the manner prescribed by the statute and that the meaning of the word “shall” as used fn the statute is limited to the procedure in enforcing such ordinances. This- provides, as was intended, a uniform rule throughout the state for • the impounding notice and disposition of cattle found running at large in incorporated towns and cities, a limit upon the expenses in connection therewith, and insures to the owners (who may have large numbers of cattle running at large in different sections of the state) a uniform mode of procedure whereby they may be advised at any time of the impounding and threatened disposition of their stock, yet leaving the city authorities at liberty, as heretofore, with the power to pass ordinances concerning nuisances and the penalties to be fixed against those suffering or permitting the same, which may cover that of .allowing animals to run at large within the corporate limits. In such cases the action is against the owner and cannot be maintained without. actual notice to him, nor without his day in court. The provisions of the act of 1907 would be unnecessary for his protection as the action ■ is brought personally against him for the-'sufféring of the nuisances. This disposition of the main contention ''car [238] ries with it those pertaining to the instructions given, as well as those refused. The remaining contention pertains to the sufficiency of the evidence to support the allegations of the complaint, It is claimed that the-animal in question was not running at large within the meaning of the phrase. The evidence discloses that this animal was found in the streets of the ciy on the 1st of August and was delivered to the plaintiff in error'who’took him. out of the city the following day; also, that his cattle were frequently found within the city limits, and there is evidence to the fact that they were there through the carelessness or negligence of the owner. The jury having passed upon this question and there being sufficient evidence to support their finding, it should not he disturbed. Perceiving no prejudicial error the judgment is affirmed. Affirmed. ' Mr. Justice Musser and Mr. Justice White concur.