
    The City of Cottonwood Falls v. J. A. Smith.
    
      Fire-Abms — Power to Prohibit Discharge. A city of the third class, organized under chapter 60, Laws of 1871, has power to pass an ordinance prohibiting the discharge of fire-arms within its limits.
    
      Appeal from Chase District Court.
    
    The opinion states the case. From a judgment against him, April 24, 1885, the defendant Smith appeals.
    
      J. A. Smith, appellant, for himself.
    
      Thos. O. Kelley, for The City.
   Opinion by

Simpson, C.:

This is an appeal from the Chase county district court. The prosecution was commenced before the police judge of Cottonwood Falls, a city of the third class, for a violation of the ordinance prohibiting the discharge of fire-arms within the city limits. The defendant, being adjudged guilty, appealed to the district court, where there was a trial by the court, (a jury being waived,) a finding of guilty, and a sentence to pay a fine of one dollar and costs, and to stand committed until paid. The record recites that a motion for a new trial was overruled, and excepted to. The motion is not set out in the record, and no date of filing is given, so as to determine whether before judgment or after, and the causes assigned therefor are unknown. Attached to the record is'what purports to be a transcript of the journal of the city council, respecting the ordinance claimed to be violated, and under which the prosecution was had; but it nowhere appears that it was ever offered in evidence, or made a part of the record; nor is there anything by which the court can determine what questions arose in the district court, or how they were decided. In this state of the record, only two questions will be noticed. The power of the city council of a city of the third class to pass the ordinance in question is found in § 51 of chapter 60 of the Laws of 1871, which provides that “the city council may also restrain and prohibit riots, and prevent the discharge of fire-arms in the streets, lots, alleys, grounds, or about the vicinity of any buildings.” Here is a delegation of power by the legislature to the city council of cities of the third class, to pass an ordinance prohibiting the discharge of fire-arms within the city limits; and in the absence of the ordinance itself, the presumption is that the city council acted within the delegated power.

The complaint charges a public offense; these are the allegations constituting the charge:

“On or about the 25th day of April, 1883, J. A. Smith, within the corporate limits of the city of Cottonwood Falls, Chase county, Kansas, the same being a city of the third class, then and there being, did then and there shoot and discharge a pistol, commonly called a revolver, the said shooting not being done in any public display or in commemoration of any extraordinary event, and that the said J. A. Smith was not then and there an officer of said city or state, or United States; contrary to, and in violation of section one, ordinance No. 8, of said city.”

This disposes of the only two questions that will be con-' sidered; It is recommended that the judgment of the court below be affirmed.

By the Court: It is so ordered.

All the Justices concurring.  