Amyx v. Taber

Crocker, J. delivered the opinion of the Court—Norton, J. concurring.

This is an action to recover the possession of certain cattle and hogs. The defendant in his answer, set up as a defense the charter of the City of Stockton, and the by-laws of the city made under that charter relating to animals running at large in the city; that he was Chief of the Police of said city, and as such took up the animals in question under the authority conferred on him by the laws of the "State and the ordinances of the city, and held them as such at the commencement of the action. The plaintiff demurred to the answer; the Court sustained the demurrer and rendered final judgment for the plaintiff, from which the defendant appeals.

[371]Sec. 1 of the Act of 1862, reincorporating the City of Stockton (Stat. 1862, 314), provides that the City of Stockton shall be a body corporate, and that said body corporate “ may make by-laws not repugnant to the Constitution and laws of this State.” Sec. 6 of Art. 3 provides that “ the Common Council shall have power within the city, to pass all by-laws, ordinances, and resolutions not repugnant to the Constitution of this State, necessary to be passed for the municipal government and management of the affairs of the City of Stockton, and for the execution of the powers vested in the said body corporate, or in any office thereof;” and Sec. 7 provides that “ the Common Council shall, have power within the city, by ordinance * * * to prevent, remove, and abate nuisances, and at the expense of the parties causing or committing the same, to prevent and regulate the running at large of all hogs, pigs, goats, sheep, horses, mules, jackasses, or horned cattle * * ® ; to impose and appropriate fines, forfeitures, and penalties, for the ' breach of any ordinance.” Sec. 1 of Art. 5 provides for a Police Court, and that “ said Police Court shall have exclusive jurisdiction of all violations of any city ordinance, and may hold to bail, etc.” Under these statutory provisions, the Common Council of the City of Stockton passed an ordinance making it unlawful for persons owning such animals to permit them to run at large within the corporate 'limits of the city, and authorized the Chief of Police, whenever he should find such animals within said limits, to cause them to be taken in charge and placed in the city pound, and after giving ten days’ public notice in some newspaper published in the city, to expose them for sale at auction to the highest bidder, and apply the proceeds, first to the payment of a fine of five dollars for each animal, and the costs of sale and keeping, and the residue, if any, to be deposited with the City Treasurer for the benefit of the owner.