
    Perkins v. The State, ex rel. Knapp.
    
      Certain animals not to run at large — Section 4202, Revised Statutes —Permission of municipal authority no defense.
    
    In a suit to recover the penalti.es provided for a violation of Section 4202, Revised Statutes, it is no defense that the animal alleged to be unlawfully running at large, is at large within a municipality by permission of the municipal authorities.
    (No. 10869
    Decided June 8, 1909.)
    Error to the Circuit Court of • Muskingum county.
    This suit was originally commenced under favor of Section 4204, Revised Statutes, by O. T. Knapp as relator, before a justice of the peace of Harrison township, Muskingum county, Ohio, to recover from the plaintiff in error, John Perkins, the penalties provided for a violation of Section 4202, Revised Statutes, which section provides as follows: “No person or corporation being the owner dr having the charge of any horses, mules, cattle, sheep, goats, swine, dogs, or geese, shall suffer the same to run at large in any public road or highway, or in any street, lane or alley, or upon any uninclosed land, or cause such animals to be herded, kept, or detained for the purpose of grazing the same on premises other than those owned or occupied by the owner or keeper of such animals, except as hereinafter provided; and any person violating the provisions of this section shall forfeit and pay for every such violation, as penalty therefor, not less than one dollar, nor more than five dollars; continued violation, after notice, or prosecution, shall be held to be an additional offense for each and every day of such continuance.” The relator, O. T. Knapp, in his bill of particulars filed with the justice of the peace, alleged that on four different days, to-wit: May 19, 20, 21 and 22, 1906, the defendant, John Perkins, “at the village of Taylorsville in the township of Harrison in the county of Muskingum, Ohio, * * * did then and there unlawfully and wilfully suffer and permit an animal of the cattle kind, to-wit: one certain cow, to run at large' upon the unenclosed lands, streets and alleys of. the said incorporated village of Taylorsville, Ohio, the said defendant being the owner and having the control of said cow and having been notified * * * that his said cow was running at large contrary to law.” The defendant, Perkins, by way of answer to said complaint, filed the following bill of particulars :
    “The defendant admits that on or about the nineteenth day of May, 1906, the twentieth day of May, 1906, the twenty-first day of May, 1906, and the twenty-second day of May, 1906, and on each of said dates, he suffered and permitted an animal of the cattle kind, to-wit, one certain milch cow, to run at large upon the unenclosed lands, streets and alleys of the incorporated village of Taylorsville, in said Harrison township, Muskingum county, Ohio, he being the owner and having the control of said milch cow, and having been notified on May 14, 1906, that his said milch cow was running at large. Defendant further answering says that on July 3, 1890, an ordinance was duly passed by the council of said incorporated village of Taylorsville, which said ordinance was duly published immediately after its passage, and was in full force and effect on May 19, 1906, May 20, 1906, May 21, 1906, and May 22, 1906, which said ordinance is in the words and figures following to-wit:
    “ 'An Ordinance to Prohibit the Running of Stock at Large Within the Corporation.
    “ 'Section 1. Be it ordained by the council of the incorporated village of Taylorsville, county of Muskingum, state of Ohio, that it shall be unlawful for the owner or owners of all cattle (excepting milch cows), sheep, swine, horses, hogs and ducks, to allow the same to run at larg'e within the corporate limits of said village.
    “ ‘Section 2. Any person or persons violating the first section of this ordinance shall, upon conviction thereof, be fined not less than one dollar ($1) nor more than five dollars ($5) for each and every offense and stand committed until fine and costs are paid.
    “ ‘Section 3. It shall be the duty of the marshal of said village to enforce the provisions of this ordinance.
    “ ‘Section 4. This ordinance shall take effect and be in full force from and after its passage and legal publication.
    “ ‘Done in council chamber this third day of July, 1890.
    “ ‘John W. Tignor, Mayor.-
    
    “ ‘L. H. Green Clerk.’
    “Defendant further says that there is not, and was not on the dates last above mentioned, or any of them, any existing enactment of said council .of the village of Taylorsville relating to the running at large of milch cows, other than that above set forth.
    “Wherefore defendant prays that he may go hence without day,”
    Upon the trial of said cause the relator formally admitted in open court that the facts stated in defendant’s bill of particulars were true, and said cause was submitted upon the agreed facts as therein stated, no other.or further testimony being offered. The justice upon such submission, found the defendant “not guilty” and dismissed said complaint at the relator’s cost. Thereupon the relator filed his motion for a new trial, which was overruled. Relator then filed his petition in error in the court of common pleas, together with a transcript of the proceedings before the magistrate, alleging in said petition in error that the judgment was against the law and the admitted facts. The common pleas court found error in the proceedings and reversed the judgment of the magistrate, to which the defendant in error excepted; and the cause was retained by the common pleas court for trial and judgment, as in cases on appeal. A jury being waived the cause was submitted to said court of common pleas upon the pleadings, which were identical with the original bills of particulars, and the court found the defendant guilty. The then defendant in error, John Perkins, thereupon filed his motion for a new trial, on the grounds that the decision was not sustained by sufficient evidence, was contrary to the admitted facts and contrary to law, and the court on consideration found the motion well taken, sustained the same, vacated and set aside its former finding and decision and granted a new trial, and upon re-submission the court found that there was no error in the proceedings of the magistrate, affirmed, the judgment of the justice and dismissed the cause. Thereupon the then plaintiff in error, relator O. T. Knapp, filed his petition in error in the circuit court, which latter court reversed the judgment of the court of common pleas; and, proceeding to render the judgment which, in its opinion, the common pleas court should have rendered, found Perkins guilty and assessed against him the penalty provided in section 4202, Revised Statutes. To reverse this judgment of the circuit court John Perkins prosecutes the oresent proceeding in error.
    
      Mr. George K. Browning and Mr. Robert 7. King, for plaintiff in error.
    
      Messrs. McHenry & Ribble, for defendant in error.
   Crew, C. J.

'The point made and relied upon by-counsel for plaintiff in error as ground for the reversal of the judgment of the circuit court in -this case is, that the provisions of above Section 4202, Revised Statutes, are not operative within the limits of a municipal corporation which has assumed to regulate by ordinance the running at large of animals therein. The claim being that the grant of power to municipalities — Section 1536-100, Revised Statutes, paragraph 10 — “to regulate restrain and prohibit the running at large within the corporation, of cattle, horses, swine,” etc., is necessarily inconsistent with the operation within - the same limits, of the prohibitive provisions of said Section 4202, Revised Statutes; and therefore that no recovery could properly be had in this case against the plaintiff in error, for the reason that the village of Taylorsville had, in the exercise of the power delegated to it, assumed to legislate in respect to animals running at large in said municipality, and had not prohibited the running at large therein of milch cows. That Section 4202, Revised Statutes, is a law of a general nature and was intended by the legislature to have uniform application throughout the state, irrespective of municipal subdivisions or corporate lines, is apparent, we think, from a consideration of the language of the statute itself, and that it was the legislative intent that the provisions of said section should be operative within the corporate limits of the cities and villages of the state, seems. equally clear’ from the language employed in said statute. It is therein provided that: “No person * * * being the owner or having the charge of any * * * cattle * * * shall suffer the same to run at large in any public road or highway, of in any street * * * or alley or upon any uninclosed land * * * except as hereinafter provided.” It is further enacted by Section 4207 of the same chapter, that: “A person finding an animal mentioned in section forty two hundred and two, at large, contrary to the provisions of this chapter may, and any * * * marshal * * * of any city or village, on view or information, shall take up and confine the same,” and there is affixed as a penalty for the non-performance of the duty thus imposed upon the marshal a fine of not more than twenty-five dollars or imprisonment not more than ten days or both. It is inconceivable why the legislature should have imposed this duty upon a municipal officer under such a penalty, or should in Section 4202 have used the descriptive words “street and alley,” if the statute was to be inopérative within the corporate limits of any municipality. The general grant of power to municipalities by Section 1536-100, Revised Statutes, “To regulate restrain and prohibit the running- at large within the corporation of cattle,” etc., is not exclusive, and hence such power must be exercised in subordination to, and in- conformity with, the general laws of the state, and that which the statute absolutely prohibits the municipal corporation may not by ordinance license and permit. As said by this court in The City of Canton v. Nist, 9 Ohio St., 440: “This limitation even if not expressed must doubtless be regarded as implied in all such general grants of power; for it must be presumed that the legislature would not intend to give to a corporation the power of contravening and defeating state policy by ordinances inconsistent with the laws of the state.” It may be noted, that the ordinance pleaded and relied upon as a defense in this case does not affirmatively authorize the running at large of milch cows within the corporate limits of the village of Taylorsville, but enacts and provides only, “that it shall be unlawful for the owner or owners of all cattle (excepting milch cows) to allow the same to run at large within the corporate limits of said village.” But if said ordinance be construed as permitting the running at large of milch cows, within said village, still, the same is no justification or defense to a defendant in an action prosecuted under the statute; for permission from the corporation can be no defense against the statute. In the present case both the statute and ordinance relate to and cover the same subject matter; this however is permissible, and the existence or exercise of express power by the municipality does not abridge or impair the power of the state over the same subject, and where, as in the present case, the grant of power to the municipal corporation is not exclusive, the jurisdiction of the state and the municipality is concurrent. Cooley’s Constitutional Limitations, 279; McQuillan Municipal Ordinances, Sec. 500; Koch v. State, 53 Ohio St., 433. It follows, we think, that the ordinance pleaded by the plaintiff in error in this case could not avail him as a defense, in an action brought against him under the statute.

!’Judgment affirmed.

Summers, Spear, Davis, Shauck and Price, JJ., concur.  