100 Mass. 136 | Mass. | 1868
All rights of property are held subject to such reasonable control and regulation of the mode of keeping and use as the legislature, under the police power vested in them by the Constitution of the Commonwealth, may think necessary for the preventing of injuries to the rights of others and the security of the public health and welfare. In the exercise of this power, the legislature may not only provide that certain kinds of property (either absolutely, or when held in such a manner or under such circumstances as to be injurious, dangerous or noxious) may be seized and confiscated upon legal process after notice and hearing; but may also, when necessary to insure the
There is no kind of property over which the exercise of this power is more, frequent, or more necessary, than that which is the subject of the present actions. In regard to the ownership of live animals, the law has long made a distinction between dogs and cats, and other domestic quadrupeds, growing out of the nature of the creatures and the purposes for which they are kept. Beasts which have been thoroughly tamed, and are used for burden or husbandry, or for food, such as horses, cattle and sheep, are as truly property of intrinsic value, and entitled to the same protection, as any kind of goods. But dogs and cats, even in a state of domestication, never wholly lose their wild natures and destructive instincts, and are kept either for uses which depend on retaining and calling into action those very natures and instincts, or else for the mere whim or pleasure of the owner; and therefore, although a man might have such a right of property in a dog as to maintain trespass or trover for unlawfully taking or destroying it, yet he was held, in the phrase of the boobs, to have “ no absolute and valuable property ” therein, which could be the subject of a prosecution for larceny at common law, or even, according to some authorities, of an action of detinue or replevin, or a distress for rent, or which would make Mm responsible for the trespasses of his dog on the lands of other persons as he would be for the trespasses of his cattle, Vin. Ab. Trespass, Z; Replevin, A. 2 Bl. Com. 193. 3 Ib. 7 4 Ib. 234, 235. Mitten v. Faudrye, Pop. 161; S. C. nom. Millen v. Fawen, Bendl. 171. Mason v. Keeling, 1 Ld. Rayrn. 608
The power of regulating the keeping of these animals, under the penalty of having them summarily destroyed in case of failure to comply with the laws upon the subject, has always been freely exercised by the legislature of Massachusetts, both under the Province Charter, and since the establishment of a state government. In 1715 a provision for the killing of “ unruly and ravenous dogs ” was included in a statute “ for encouraging the killing of wolves.” Prov. St. 2 Geo. I. c. 3; Mass. Prov. Laws, (ed. 1726,) 243. A temporary act passed in 1743 recited that much damage had been done by unruly and mischievous dogs in worrying and killing sheep and lambs on the Island of Nantucket, and declared that thereafter it should be lawful for any person in Nantucket “ to kill any dog or bitch whatsoever that shall at any time be found there,” without being liable to any action; and another act, passed in the following year, with a similar preamble, declared that it should be lawful for any person within the Province (except in the county of York) to kill and destroy any dog or bitch that should be found in any common land, field or inclosure, excepting the land of its owner, in the daytime, or anywhere, between sunset and sunrise, and out of the immediate care and inspection of its owner or keeper, and imposed a penalty on the owner if he refused to kill it after due notice of its being seen out of such care and inspection. Prov. Sts. 17 Geo. II. c. 1; 18 Geo. II. c. 2 ; Mass. Temp. Laws, (ed. 1763,) 30, 34. Both of these temporary acts were continued in force until 1785 by successive statutes, the last of which were passed during the Revolutionary War. Sts. Nov. sess. 1775, c. 5; Nov. sess. 1779, c. 1; Mass. State Laws, 1775-80, pp. 26, 259. And the act utterly prohibiting the keeping of dogs in Nantucket was again extended by Sts. 1791, c. 38, and 1799, c. 69.
These statutes have been administered by the courts accora ing to the fair construction of their terms, and without a doubt of their constitutionality. Under the St. of 1812, c 146, which
The statute under which this defendant justifies provides that the mayors of cities and chairmen of selectmen of towns shall within ten days from the first day of July annually “ issue a warrant to one or more police officers or constables, directing them to proceed forthwith either to kill or cause to be killed all dogs within their respective cities or towns, not licensed and collared according to the provisions of this act, and to enter complaint against the owners or keepers thereof; and any person may, and every police officer and constable shall, kill or cause to be killed all such dogs, whenever and wherever found.” St. 1867, c. 130, § 7. The warrant here provided for, being general in its form, not founded on oath, nor containing any special designation of objects, is not indeed a legal warrant of search and seizure; it is rather an appointment of the officer who is to be specially charged with the duty of executing the authority conferred by the statute. The statute makes it the duty of every
It is agreed that neither of these plaintiffs had complied with the statute in these respects, and there is nothing in the facts agreed in either of the cases from which it can be inferred that the defendant committed any trespass upon the plaintiff’s premises or any act tending to a breach of the peace. Under the defendant’s authority and duty to kill or cause to be killed all dogs not licensed and collared, “ whenever and wherever found,” be had clearly a right peaceably to enter for that purpose, without permission, upon the close of the owner or keeper of such a dog and there kill it. In Blair’s case, he did not enter the dwelling-house, or touch the dog until after he had shot and killed it, and then only to carry it back to the place where he first found it. Nor did he enter the dwelling-house in Hutchinson’s case, but only reached his hand into the open .shed in which the dog was tied, and led it out by the rope attached ,o its collar. In Smith’s case, he entered the dwelling-house through the open door, unopposed, and evidently not for the purpose of taking the dog, (for it is agreed that the dog followed him in from without,) but for the lawful purpose of informing the inmates of the duty which he was about to execute, and
The cases cited for the plaintiffs are quite distinguishable from this. Bishop v. Fahay, 15 Gray, 61, in which an officer was held liable for killing a dog taken from a dwelling-house which he had entered without the owner’s leave, arose under the St. of 1858, c. 139, § 1, which only authorized him to kill dogs, not duly registered and collared, and “ going at large.” The St. of 1864, c. 299, § 7, under which the defendant unsuccessfully attempted to justify, in Kerr v. Seaver, 11 Allen, 151, his taking of a dog from the owner’s dwelling-house for the purpose of killing him, was indeed, so far as concerns the provision immediately in question, in the very words of the statute now in force. But the person there held responsible for a trespass in the dwelling-house was a private citizen, who pursued the dog into the house after the plaintiff’s wife had refused to give it up. There is hardly a more ancient or more firmly established rule of the common law, than that a man who enters my house against my will and without authority is a trespasser, though the door ia open. 11 Hem. IV. 75 b. Judgments for the defendant.