Rose v. Salem

Mr. Justice Benson delivered the opinion of the court. 1. Plaintiff contends that the ordinance is void, for the reason that its provisions exceed the authority of the city council. It may be conceded at the outset that municipal corporations can exercise no powers but such as are expressly conferred upon them by the act of incorporation, or are necessary to carry into effect the powers thus conferred, or are essential to the manifest objects and purposes of the corporation. Section 18 of the charter authorizes the council “to prevent domestic animals from running at large within the city, or any portion thereof; to provide for impounding and selling such animals.” Section 42 authorizes the council “to license, tax, impound, sell or kill dogs.” There can be no serious question but that the charter gives the council ample authority to prohibit dogs from running at large. "We do not need to cite any further authority than the above sections to satisfy this conclusion. [82] 2. There remains, then, a consideration of the ordinance itself. It will be noted that Sections 3 and 4 thereof provide for the impounding of dogs found running at large and for notice to the owners or custodians, if they are known to the street commissioner or his assistants, and, further, that if the dogs are not redeemed within three days they are to be summarily killed. Plaintiff contends that this procedure violates the fundamental principle that no person should be deprived of his property without due process of law. We think that this contention is correct. It is true that the courts of last resort in many of the states have held that similar ordinances are not obnoxious to this doctrine, and are to be upheld as a valid exercise of police power; but in all eases of this sort, which have been called to our attention, emphasis is laid upon the assumption that dogs are property in a limited or qualified sense only, and they invariably comment upon the fact that at common 'law such animals were not the subject of larceny. It is true that at common law they were held not to be the subject of larceny, and the historical reason for such holding is found in the fact that at that time larceny was a capital offense, and the courts rebelled at the thought of putting a man to death for stealing a dog. However, in this state it is larceny to steal a dog, and that animal is expressly declared by statute to be personal property: Section 5731, L. O. L. Whatever may be the law in other jurisdictions, in this state dogs are regarded as being just as important a class of personal property as any other domestic animal and equally entitled to the protection of the law. In Illinois it has been held that a statute providing for the impounding and sale of domestic animals [83] without a judicial hearing and without actual or constructive notice to the owner is void: Poppen v. Holmes, 44 Ill. 362 (92 Am. Dec. 186). The same doctrine is held in the following cases: Slessman v. Crozier, 80 Ind. 487; Campbell v. Evans, 45 N. Y. 360. An ordinance could doubtless be readily framed which would accomplish the purposes desired, and yet protect private property from forfeiture or destruction without due process of law. The ordinance in question is objectionable in this particular, and the decree of the lower court is affirmed. Affirmed.