THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. SALVADOR NERI, DEFENDANT AND APPELLANT.

The defendant and appellant in this case was convicted in the Court
of First Instance of the Province of Misamis, on appeal from a judgment
of conviction in the court of the justice of the peace of the
municipality of Tagoloan, of a violation of the provisions of ordinance
No. 13, series of 1914, of that municipality, in that he unlawfully
turned loose a horse upon the plaza and public streets of the
municipality.

Counsel for the appellant contends that the ordinance for the
violation of which the accused was convicted is invalid, at least in so
far as it undertakes to penalize the turning loose of “large cattle” on
the public streets of the municipality.

Subsection (i) of section 40 of Act No. 82, known as the
Municipal Code, as amended by secuon 1 of Act No. 2250, authorizes
municipal councils “to require owners of large cattle, as denned by
section one of Act Numbered Eleven hundred and forty-seven, sheep,
goats, and swine to keep such animals from moving, running, or being at
large except when in charge of some person of sufficient discretion.”

Section 39 (aa) of the Municipal Code, as amended by Act No. 1791, is as follows:

“The municipal council shall:

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“(aa) Establish and maintain municipal pounds and fix the
fees for poundage, regulate, restrict, or prohibit the running at large
of domestic animals and dogs unlicensed, and provide for the
distraining, impounding, and sale of the same for the penalty incurred
and the cost of the proceedings; also impose penalties upon the owners
of said animals for the violation of any ordinance in relation thereto:
Provided, That ‘large cattle’ within the meaning of Act
Numbered Eleven hundred and forty-seven shall be disposed of in
accordance with that Act.”

Counsel for appellant contends that, under the terms of the
concluding proviso of this section, the municipal council of Tagoloan
was without authority to enact an ordinance penalizing the turning
loose of large cattle on the streets of that municipality, and
providing for the impounding of such animals when found running loose.
We find no merit in this contention. The proviso that “large cattle”
within the meaning of Act No. 1147 shall be disposed of in accordance
with that Act evidently refers to the provisions of section 25 of Act
No. 1147 prescribing the measures to be taken for the care and
maintenance of unclaimed estrays, with no known owners, found within
the limits of the municipality; for the giving of public notice of the
seizure of such animals; for their return to their owners upon proper
proof of ownership; and for their sale in the event of the failure of
the true owner to present and establish his claim of ownership within a
prescribed period after publication of notice of their seizure. But
there is nothing whatever in these provisions in conflict with the
ordinance in question which penalizes the turning loose of such animals
on the public streets by their owners and provides for the impounding,
care and maintenance of such animals in the manner prescribed therein.
“Large cattle,” which, under the definition of that term in the Act,
“include carabaos, horses, mules, asses and all members of the bovine
family,” when found running loose and unclaimed by their owners, must
be disposed of in accordance with the provisions of Act No. 1147, that
is to say, must be maintained, cared for, and returned to their owners,
or, if no owner appears, sold at public auction as provided in Act No.
1147; but such disposition of these animals is not necessarily in
conflict with an ordinance penalizing the turning loose of such animals
on the streets by their known owners and providing for the payment of
the expense involved in their care and maintenance, while impounded by
the municipal authorities.

We are not impressed with the arguments of counsel based on the
alleged unreasonableness of the ordinance, in that it provides for the
imposition of a penalty on the known owner of large cattle who permits
them to run loose on the streets of the municipality, while, as he
contends, no such penalty is or can be imposed on the owner of an
unclaimed estray found at large in the municipality. It is of course
true that where there is no known owner of an estray found at
large on the streets of the municipality, criminal proceedings cannot
be instituted against the owner, but if as a result of the publication
of the seizure of such an animal under the provisions of Act No. 1147,
the owner presents himself and establishes his right of ownership, we
know of no reason why he should not be prosecuted for a violation of
the ordinance, if it can be made to appear that he turned the animal
loose on the streets of the municipality.

The judgment entered in the court below should be affirmed, with the costs of this instance against the appellant. So ordered.

Torres, Moreland, Trent, and Araullo, JJ., concur.