McPhail v. City of Denver

Teller, J., delivered the opinion of the court. The plaintiff in error was convicted of violating section 750 of article 2, chapter 16 of the Municipal Code of — 249 — the City and County of Denver, which requires owners of dogs to pay to the city treasurer, annually, a prescribed sum for each dog so owned or kept in said city. He alleges error-in the proceedings and seeks to reverse the judgment imposing a fine upon him. Section 747 of the said Municipal Code reads in part as follows: ‘ “It shall be the duty of said dog license inspector to ascertain whether or not proper license has been paid for any dog, as provided by ordinance. In the event said license has not been paid, and the same evidenced by proper license receipt, tag or stamped collar, it shall be the duty of said inspector to serve every person owning, keeping or harboring any dog so unlicensed, with notice, warning such person to pay said license as the law provides, within twenty-four hours from the serving of such notice. If any person so served with notice shall fail to pay to the treasurer at his office within the time allowed by said notice, it shall be the duty of said inspector to summon into court said person as provided by ordinance.” A further section provides a penalty for the violation of the ordinance, and under this section a fine was assessed against the plaintiff in error. It was admitted on the trial that plaintiff in error owned a dog, and had paid no license fee. The principal error presented by plaintiff in error in the briefs is the refusal of the trial court to hold the ordinance to be in violation of the city charter, and of the Constitution of the State. In other words, it is contended that the city charter gives no authority to the city to enact the ordinance in question, and that such authority can not be granted without violating the Constitution. • . As to the latter claim it is sufficient to say that no question is more firmly settled than that the regulation of the keeping of dogs is within the police power of the State, and that it may grant to cities and towns the right to exercise such parts of the police power as it may deem proper. — 250 — 28 Cyc. 740 ; Cole v. Hall, 103 Ill. 30 ; State v. City of Topeka, 36 Kan. 76, 12 Pac. 310, 59 Am. Rep. 529 ; Sentell v. New Orleans & C. R. R. Co., 166 U. S. 698, 17 Sup. Ct. 693, 41 L. Ed. 1169 ; Jenkins v. Ballantyne, 8 Utah 245, 30 Pac. 760, 16 L. R. A. 689. Speaking on this subject Judge Dillon says: “A license fee or tax is usually charged, and such license fee or tax is regarded as a proper exercise of the police power, and not as a tax upon property. The authority of a municipal corporation to pass ordinances on the subject is sometimes conferred in express terms, but it has also been sustained under such general grants of authority as power to declare what shall be deemed to constitute a nuisance and to abate the same, or to enact ordinances for the protection of health, life and property, or to make bylaws for the comfort and security of citizens.” 2 Dillon on Mun. Corp., 5th Ed., sec. 724. Section 17 of the city charter contaips the following provisions: “The council shall have power to enact and provide for the enforcement of all ordinances necessary to protect life, health and property, to declare, prevent and summarily abate and remove nuisances; to preserve and enforce the good government, general welfare, order and security of the city and county and the inhabitants thereof; to enforce ordinances and regulations by ordaining fines not exceeding three hundred dollars, or imprisonment not exceeding ninety days, or both fine and imprisonment, for each and every offense.” This, under the authorities, is sufficient to authorize the ordinances in question, and they must be held valid. The power to regulate is not limited, as plaintiff in error contends, to dogs running at large. It extends, as many cases hold, to the keeping of dogs, and that for obvious reasons. If, therefore, the proceedings under review were oth — 251 — erwise regular and valid, the fine was lawfully imposed. It appears from the record that a notice in writing was left at the house where plaintiff in error boarded, which notice, addressed merely to “occupant,” was found by the tenant of the premises who kept a dog, and acting on the notice she went to the city hall and paid a tax on her dog. . No written notice was served upon plaintiff in error, and he never saw the notice left at the house. The city, to prove notice, put in evidence several conversations which the dog license inspector had with plaintiff in error in which the provisions of the ordinance requiring the license fee were discussed'. . One of the grounds of the motion for a new trial was that the court erred “in holding that the verbal notice given by the plaintiff to the defendant was sufficient in law,” and the overruling of that motion is now assigned as error. The ordinance above quoted authorizes the inspector to summon a delinquent dog owner into court only after service upon him of notice to pay a license fee within twenty-four hours. The proceeding thus to be begun, though a civil action iri form,. is penal in character, and may result in punishment by imprisonment. There are cases too numerous to mention which hold that a proceeding which may result in the taking or encumbering of property, must be preceded by notice to the property owner, giving him the right to object, or to perform some act before it may be done by the public at his expense, as the case may be. It would seem, therefore* that before a person supposed to own a dog be subject to arrest, as in this case, and trial, he should have some official notice, and an opportunity to pay the tax, or at least to make the attempt to show that he does not own or keep a dog, if such be the fact. The propriety of such notice is recognized by the terms of the ordinance. In Brewster v. City of Newark, 11 N. J. Eq. 114, it is — 252 — said: “Notice'is certainly required; wherever a'duty'is'imposed upon an individual, and a penalty fixed forvnon-compliance, unless by’ the law it is expressly providéd that no notice need be given.” ' ' ; From these' considerations, and from'the language of the ordinance, it must be held that a notice was necessary before the action could be begun. Was there in this case such notice-given as the law requires? The court, over defendant’s objections, admitted testimony of oral notice to plaintiff in error, and that is the only notice claimed to have been given him. This also is assigned as error. The general rule is that notice required by law to be given, is notice in writing. 29 Cyc. 1117. In Pearson v. Lovejoy, 53 Barb. 407, it is said: “The rule is well settled that where a notice is required or authorized by statute, in any legal proceedings, it means written notice.” See also Norton v. City of N. Y., 16 Misc. 303, 38 N. Y. Supp. 90 ; and State v. Supervisors, 34 Wis. 169. In such cases notice does not mean knowledge; it means the statutory instrumentality of knowledge. Minard v. Douglas County, 9 Ore. 206. An English statute authorized a sale of goods after distress for rent, and notice thereof. Held that a written notice was required to render a sale valid. Wilson v. Nightingale, 8 Ald. & E. (N. S.) 1034. The language of the ordinance clearly indicates that a written notice was intended. It does not direet the inspector to notify owners of dogs to pay the tax, but requires that he serve them with notice, a term which would hardly be used of oral notice. It is said, however, that plaintiff in error waived the notice, by refusing payment on the ground that the ordinance was invalid. But since the serving of a written notice, and not mere — 253 — knowledge on: the: part of the plaintiff fin error, was-the basis of- the right to begin'the prosecution;! the ;'s’ervicé> of notice was necessary as’ a jurisdictional fact,-and there, was and could be no waiver of such notice.. ' -r We conclude, then, that, written; notice, being pecessary before proceedings can be begun by summons or arrest to enforce the ordinance, for want Of such-notice, the judgment is erroneous.1 ' The former opinion is withdrawn, and the judgment vacated. The judgment of the county court is reversed with directions to dismiss the proceeding.- Gabbert, C. J., Bailey, J., and Scott, J., dissenting.