Cochrane v. Mayor of Frostburg

Boyd, J., delivered the opinion of the Court. The appellant sued the appellee for injuries sustained by her being horned, tossed, thrown down and trampled upon by a cow, which attacked her while she was walking along a lane or street of Frostburg. The defendant demurred to the declaration, and the demurrer was sustained by the Court below and judgment entered for the defendant. From that judgment this appeal was taken, and we are therefore to inquire into the legal sufficiency of the declaration and determine whether the facts therein stated, which are admitted by the demurrer, give the plaintiff a right of action.

It is alleged that the defendant was, by its charter, vested with control over all the streets, lanes and alleys of Frost-burg, and with full power to provide, by the passage and enforcement of ordinance, for the comfort, good order, health and safety of all the inhabitants of said town, residing within the limits and passing along and over its streets, lanes and alleys, and with power to prevent and remove all nuisances in said town, and to shield and protect said inhabitants there ⁶⁰ from; that the said town is laid off into streets and alleys, contains between four and five thousand inhabitants, and is compactly built, so that there is a great deal of travel and walking on said streets and alleys. It is further averred that large numbers .of horses, cows, hogs and horned cattle were turned loose and permitted to run at large upon the streets unattended during the day and night, by means of which "said stock, and particularly said cows (they being armed with dangerous horns and equipped with annoying bells), became a common nuisance and a source of great annoyance and danger to- persons passing along said streets and alleys, and particularly so as to women and children, who were attacked and frightened by said stock, whereby the safety and comfort of the inhabitants and the good order of said town were destroyed, and whereby the same became and (at the time of the grievances hereinafter set out) was a common and notorious nuisance and a constant source of dangerous discomfort to the inhabitants of said town.” It is then charged that, by reason of the powers contained in the charter, it became the duty of the defendant to pass and enforce ordinances to' abate and prevent said nuisance, and to prevent said animals from running at large and require their owners to keep them off the streets, unless attended by some person in charge thereof; but that the defendant, unmindful of its duty, negligently and wrongfully failed 'and refused to pass any such ordinances for the preventing and abating said nuisance, and negligently', wilfully and wrongfully refused to take any steps whatever to prevent said stock and troublesome and dangerous animals from running at large on said streets, and that while said nuisance still continued, plaintiff was walking on a street or lane-of-said city, using due care and caution, and was attacked by one of the said cows'and horned cattle so by the said defendant negligently and wrongfully allowed and permitted td be at large upon the said streets, ánd was violently'horned, tossed, thrown and trampled upon, etc. ' - . ■ ⁶¹ The injuries sustained by plaintiff are then set out in detail, showing that both of her arms were broken, her side torn and that she was otherwise seriously and permanently injured. If the defendant can be held responsible in any case to one lawfully using its streets for injuries inflicted by a cow running at large, the allegations in this declaration are certainly sufficient to entitle the plaintiff to recover, if she can sustain them by competent proof. In determining whether the defendant is so liable, we will consider: 1.

Has the Mayor and City Council of Frostburg power under its charter to prevent stock from running at large within the corporate limits ? 2. If it has such power, what are the consequences of its neglect or failure to do so ? Art. 2, sec. 144 of the Code of Public Local Laws, authorizes the Mayor and City Council of Frostburg to pass such ordinances, not contraiy to law, as they may deem beneficial to the town; gives them power to remove nuisances and obstructions upon the streets, lanes and alleys, and to ordain and enforce all ordinances, rules and regulations necessary for the peace, good order, health -and safety of the town and of the people and property therein, and authorizes them to impose fines, forfeitures or imprisonment for the violation of any ordinances of the town. These powers are in substance the same as 'those of the charter of the city of Cumberland, which were passed upon in the case of Taylor v. Mayor, etc., of Cumberland, 64 Md. 68 .

This Court there held that the defendant was authorized and required under its charter to prevent persons from coasting on the streets, if it could do so by ordinary and reasonable care and diligence, and declared such use of the streets to be a nuisance. There was no special authority given in the charter of Cumberland to prevent coasting on the streets, but the power of the city to do so was not only not questioned, but was expressly recognized in that case. If a municipality can, without express powers in its charter, ⁶² prohibit the use of its streets for coasting, why should it not have the power to prohibit the use of them by horses, cows, hogs and horned animals, “during both the night and in day-time, and at all times, and on Sundays,” as it is alleged in the declaration, especially when the cows are “ armed with dangerous horns and equipped with annoying bells ?” It is difficult to imagine a condition of things more calculated to injuriously affect, if not destroy, “the peace, good order, health and safety of the town and of the people and property therein,” than that described in the declaration. It is true that the decisions are not uniform as to whether what is called “ the general welfare clause,” usually contained in charters, authorizes municipal corporations to restrain domestic animals from running at large, but many of them so hold.

See 15 Am. and Eng. Ency. of Law, 1188 and note, where a number of them will be found collected together. There can be no good reason assigned why it should not, unless there be some statute law or some other provision of the charter inconsistent with such construction. In those cases in which it is held that municipal corporations cannot, without special authority, pass and enforce ordinances of this character, it will generally be found upon examination of them, that it is by reason of some statute or other special cause that would not apply to the' case under consideration.

For example, in the case of Collins v. Hatch, 18 Ohio, 523, so much relied on by the learned counsel for the appellee, the Court said that an ordinance to restrain horses, cattle, swine, etc., from running at large could not be adopted under the general welfare clause, as it would be in contravention of the general laws of that State, which allowed such animals to run at large. Is it to be said that the owners of horses, cows and other animals can turn them loose in the public streets of a town such as described in the declaration, and the authorities have no means to prevent it, unless the Legislature has given them express ⁶³ power ? It is not necessary to determine whether domestic animals can be impounded and forfeited without express authority being given in the charter, but with powers as broad as those in the charter of defendant, there would seem to be no valid reason why it could not pass and enforce ordinances prohibiting stock from running at large and imposing penalties for the violation of them. If the owners of cows and horses tied them along the public streets of Frostburg, so as to interfere with the free passage of people having the right to use the streets, it could not be successfully contended that the authorities were without remedy.

Why, then, should they be permitted to turn them loose, thereby not only obstructing the free and proper use of the streets, but permitting them to wander over the sidewalks, to frighten and possibly injure women and children. It was contended by the appelleq that it is customary in this State to grant special powers to such municipal corporations as desired to prevent stock from running at large, and "hence, when it is omitted from a charter, the presumption is that it was not intended by the Legislature that such power should be exercised. We do not think that such a conclusion can properly be drawn. Various reasons might be given for such omission.

Some of those municipalities may have been so disturbed by animals running at large, that they wanted to emphasize that power to restrain them, or they may have thought it safest to include such powers to avoid any question. In the brief for appellee certain towns are named which have the power expressly granted them to prevent cattle from running at large, and it is stated that Hagerstown, Frederick and others have no such powers conferred on them. It would seem to be a most unreasonable construction to place upon the action of the Legislature, to say that, inasmuch as it has granted this express power to some towns of the State, but has omitted it in the charters of Hagerstown