City of Carthage v. Rhodes

Brace, J. This is an appeal from the judgment of the circuit court of Jasper county on an appeal from the judgment of the recorder’s court of the city of Carthage imposing a fine upon the defendant for keeping a dog without having obtained a license from said city for so doing in violation of the ordinances thereof. The case has been certified here from the Kansas City court of appeals as involving a constitutional question. By section 11, article 5, of the charter of the city of Carthage (Sess. Acts, 1875, p. 169) it is provided that the city shall have power “to tax, regulate, restrain and prohibit the running at large of dogs or cats and provide for the impounding or destruction of either or both and all of them when found running at large contrary to ordinance.” The power granted in this section is to tax dogs, and regulate dogs, and is not limited simply to the power to restrain and prohibit dogs from running at large, and the question is, can the city "exercise the power to tax or regulate dogs by requiring the owner or keeper of a dog to pay a specific sum for a license to keep such dog within the city limits, or in other words by imposing a tax per capita upon dogs, by way of a license. There being an express grant of power to regulate, there can be no question as to the power in the city to regulate by way of a license for which a specific sum may be charged, unless the exercise of the power is precluded by the constitutional provision requiring all property to be taxed in proportion to its value. Const., art. 10, sec. 4. Taxation may be for the purpose of raising revenue, or for the purpose of regulation; where for the purpose of regulation it is an exercise of the police power of [178] the state. They are both distinct, co-existent powers in the state and either or both may be exercised through a municipal corporation. In this case, by the terms of the charter, both powers are granted to the city of Carthage as to the dogs of that city. The dog-license tax required by its ordinances is easily referable to the exercise of the police power granted. While, in a sense, dogs are property, and the owner may invoke the aid of the law for their protection as property by civil action, and by statute they have been made the subject of larceny, yet, they are a base sort of property, having no market or assessable value, do not enter into the estimate of the appreciable wealth of the. state, and never have been considered proper subjects of taxation for revenue. On the other hand their almost- utter worthlessness in a crowded city for any purpose except to please the whim or caprice of their owners, the half savage nature and predatory disposition of so many of them, rendering them destructive of animals of real value, and their liability to the fatal malady of hydrophobia which in so many instances has sent them abroad as messengers of death to man and beast, point them out as subjects peculiarly fit for police regulation. The ordinances in question being an exercise of the police power granted by the state are not obnoxious to the constitutional provision quoted, which is not a limitation upon the police power, but upon the taxing power of the state. Without discussing the question further it is sufficient to say that the foregoing propositions are sustained by the great weight of authority, from which we cite the following • Holst v. Roe, 39 Ohio St. 340; Van Horn v. People, 46 Mich. 183; Cole v. Hall, 103 Ill. 30 ; Ex Parte Cooper, 3 Texas App. 489; Tenney v. Lenz, 16 Wis. 566; Blair v. Forehand, 100 Mass. 136; Mitchell v. Williams, 27 Ind. 62; Fairibault v. Wilson, 25 N. W. Rep. (Minn.) 449. The judgment is affirmed. All concur.