
    Charles G. Willis v. Moses Legris.
    1. Penalties—can only he enforced hy suit. Where a city ordinance subjects the owner of horses suffering them to run at large in the streets, to a penalty of five dollars, the fine when collected to be paid into the city treasury, such penalty can only be enforced by an action at law.
    2. Offenses—-persons charged.with—have the right to a judicial investigation. And where, under such ordinance, suffering horses to run at large in the streets was made an offense punishable by fine, and the pound master was empowered to give notice, that, unless the animals were claimed by the owners, and the penalty and the cost of their keeping paid within five days thereafter, they would be sold-to satisfy the same, —held, that the provision giving, such authority to the pound master was void, for the reason that every person charged with an offense has the right to a judicial investigation, and payment of the penalty could not be required until the liability of the owner had been determined.
    Writ of Error to the Circuit Court of Kankakee county; the Hon. Charles B. Starr, Judge, presiding.
    The facts in this case are sufficiently stated in the opinion.
    Mr. Stephen R. Moore and Mr. Mason B. Loomis, for the plaintiff in error.
    Mr. C. A. Lake, for the defendant in error.
   Mr. Chief Justice Breese

delivered the opinion of the Court:

This was an action of replevin for four horses and colts, and by the pleadings was made to turn on the validity of portions of the following ordinance, adopted by the city of Kankakee, the publication of which was duly proven.

“An Ordinance to Prevent Horses, Swine, Sheep, etc., from Burning at Large.
Be it ordained by the Common Cowncil of the City of Kcm-Tcalcee:
“ Sec. 1. That the city marshal shall construct a good and sufficient pound, which pound, when constructed, shall be under his control, and he shall receive compensation as pound master, as hereinafter provided.
Sec. 2. No horses, mules, goats, sheep or swine, or any such animals, shall be permitted to run at large in the city at any time; and, if found running at large, each and every of such animals may be impounded in the common pound, from whence they shall not be released until the owner or some other person for him, shall pay to the city marshal the sum of three dollars for each horse or mule, and the sum of one dollar for each and every of the other animals so impounded, as his fees, besides all necessary expenses for keeping and impounding such animal, and, in addition thereto, each owner, or other person in control of such animals, shall be subject to a penalty of five dollars for each horse so running at large, and to a penalty for every other such animal so found running at large of two dollars, which' said fines, when collected, shall be paid into the city treasury.
“ Sec. 3. No malicious or breachy cow shall be allowed to run at large in the city at any time, and each of such animals may be impounded as is provided in section 2 of this ordinance, and be subjected to the same penalties and provisions as are provided against horses.
“ Sec. 4. It shall be lawful for any person to destrain and impound any of the animals as hereinbefore provided, so found running at large on his own premises or elsewhere in said city.
Sec. 5. If any person or persons shall break open, or in any manner, directly or indirectly, aid or assist in breaking open, the said pound, or in any illegal manner remove any animal so impounded, as hereinbefore provided, shall severally forfeit and pay the sum of twenty dollars.
Sec. 6; Each and every person who shall in any way obstruct the city marshal, or other person engaged in driving to the pound any animal liable to bo impounded, shall forfeit and pay a fine of not less than three dollars, nor more than twenty-five dollars.
Sec. 7. Any person who shall destrain or impound any of the animals in accordance with the preceding sections of this ordinance, shall forthwith notify the city marshal thereof, who shall within twenty-four hours thereafter post three notices, one at the post office, one at the court house, and one at the passenger depot in said city, which notices shall describe the animals impounded, and give notice, that, unless the same are claimed by the owners, and the penalty provided in the ordinance, and the cost of their keeping shall be paid within five days thereafter, the said animals shall be sold to satisfy the same. Any surplus arising from such sale shall be paid into the city treasury. For posting such notices and making such sale, the city marshal shall have the same fees as now provided by law to constables making sales under executions.
“ Sec. 8. Any person who has had any animal sold by virtue of this ordinance, may have any surplus money arising from such sale, over the penalty hereinbefore provided and the costs, returned to him upon application to the common council, having first made satisfactory proof that he was the owner of such animal so sold.”

The horses and colts were running at large in the city of Kankakee, taken up by the city marshal and impounded, and the following notice given by him of the sale:

“ Notice is hereby given, that, by virtue of an ordinance of the city of Kankakee, Illinois, I have impounded the following described animals, to wit: One cream colored mare and brown colt; one brown horse colt, blaze face, two years old; one do. do., one year old; one bay mare colt, two years old; one do. do., one year old, no marks; which I shall expose for sale at public vendue, at the pound at Payne’s livery stable, on Station street, in said city, on the 23d day of June, A. D. 1865, at one o’clock p. m., to the highest bidder therefor.
“Dated at the city of Kankakee, Ill., this 18th day of June, A. D. 1865.”

On the day fixed for the sale, the owner, the defendant in error, demanded the animals, offering to pay four dollars a head for them, and the marshal refused to deliver them up unless the owner would pay as penalty the sum of five dollars for each head. This the owner refused, and sued out a writ of replevin.

The question is, had the marshal any right to refuse to surrender the horses until this penalty was paid %

The words of the ordinance are, in addition to the fees and charges and all expenses, the owners “ shall be subject to a penalty of five dollars for each horse so running at large, and to a penalty for every other such animal so found running at large, of two dollars, which said fines, when so collected, shall be paid into the city treasury.” Section 2 of ordinance.

The language used is equivalent to declaring the owner shall be liable to a penalty of five dollars, and it is considered as a fine, which, when collected, is to be paid into the city treasury.”

We are not aware of any other mode by which penalties of this character can be collected than by a suit or action. There must be a trial in order to determine the fact of the owner of the horses being liable to the penalty. He might, on the trial, show that the horses had escaped from their inclosure, and were not in the streets of the city by his sufferance or permission. Clearly, in such case, he would not be liable to a penalty. Every citizen has a right to a judicial investigation when charged with an offense. Suffering horses to run at large in the streets of the city was an offense punishable by a fine of five dollars for each head. The seventh section of the ordinance empowers the pound master to give notice that, unless the animals are claimed by the owners, and the penalty and the cost of their keeping paid within five days thereafter, the animals will be sold to satisfy the same.

This provision is void, as contravening that constitutional right every man has to an investigation in court, when charged with an offense punishable by fine. Such a penalty can only be enforced by action at law, in which the owner would have a right to show he was not liable to the penalty, — that his case was not within the spirit and meaning of the ordinance.

The city marshal had no right to detain the horses for the reason the penalty was not paid. He was not the judge to determine whether the owner of these horses was subject to this penalty. Poppen v. Holmes, 44 Ill. 360.

This being the only material point made in the case, the judgment of the Circuit Court must be affirmed.

Judgment affirmed.  