OPINION ON REHEARING. This is a suit by the appellant against the city of Brownwood and the city marshal and the sureties on his bond to recover the value of two cows impounded by the city marshal under and by virtue of an ordinance of the city of Brownwood prohibiting stock to run at large within the corporate limits.
The questions involved in this appeal were fully considered by this court in consultation, and we held in the judgment rendered that there was no error committed by the trial court, and that the judgment should be affirmed. We see no reason to change the views we then entertained, and are still of the opinion that the plaintiff was not entitled to recover for the reasons given in his assignments of errors.
It is first contended that the ordinance of the city of Brownwood, which appears to have been legally passed, is unconstitutional, for the reason that the city had no power, without a vote of the qualified voters within its limits, to pass and put into effect an ordinance prohibiting stock from running at large within the corporate limits. It is contended that that provision of the Constitution and the laws in pursuance of it which authorizes counties and subdivisions thereof, by a vote of the qualified voters, to prohibit stock from running at large, is exclusive, and that no city government has the power to pass an ordinance to accomplish the same purpose without first submitting the question to a vote of the people. It was never intended by this provision of the Constitution to limit and restrict the power of a municipal corporation in the exercise of its police authority to pass an ordinance putting in effect a valid police regulation prohibiting stock from running at large to the damage, annoyance and inconvenience of the inhabitants of the city within the corporate limits.
It is next contended that as the two cows in question were the exempt property of the plaintiff, they were not subject to the ordinance. It is provided by the ordinance that the city marshal shall impound animals found at large within the limits of the city, and as costs and compensation for the performance of such duty, he is entitled to a sum, provided for in the ordinance, which appears to be a reasonable fee. It is contended that impounded stock under this ordinance, which is exempt from forced sale, could not be held for these charges. We can not agree to this view of the question. The ordinance not only affects the owner of the stock, but is intended in its operation to bear upon the animal itself, and to make it subject to the reasonable expenses allowed by the ordinance to the marshal for impounding the animal and holding it in possession until it could be redeemed by the owner. The motion for rehearing is overruled.
Affirmed.
Writ of error refused. *Page 625