32 Colo. 319 | Colo. | 1904
delivered the opinion of the court.
The information charges that the defendant, on, to wit, May 1st, 1902, at the county of Arapahoe, Colorado, did unlawfully drive, work and use an unregistered docked horse. Section 1 of the statute under which the information is brought, is as follows: “It shall be unlawful for any person or persons to dock the tail of any horse, within the state of Colorado, or to procure the same to be docked, or to import or bring into this state, any docked horse, or horses, or to drive, work, use, race, or deal in any unregistered docked horse or horses within the state of Colorado.”
Section 2 provides that, “within 90 days after the passage of this act, every owner or user of any docked horse within the state of Colorado, shall register his or her docked horse, or horses, by filing in the office of the county clerk and recorder of the county in which such docked horse or horses may then be kept, a certificate, which certificate shall contain the name or names of the owner, together with his or her post-office address; a full description of the color, age, size and the use made of such docked horse or horses; which certificate shall be signed by the owner or his or her agent. The county clerk shall number such certificates consecutively, and record the same in a book or register, to be kept for that purpose only; and shall receive, as a fee for the recording of such certificate, the sum of fifty cents.” — Chapter 93, Laws of 1899.
The defendant sold the horse in question February 19, and bought him back- about the 1st of March, 1902. The horse’s tail was docked between
The defendant contends that the act in question violates the fourteenth amendment to the constitution of the United States, and section 3, article II, of our constitution, which provide, respectively, that “No state * * * shall deprive any person of life, liberty or property without due process of law, nor
It is not asked that the whole act be declared unconstitutional, but that portion only which forbids the driving, working or using of an unregistered docked horse — registration being impossible.
Concerning the police power of the state, Mr. Justice Miller said, in the Slaughter-House cases, reported in 16 Wall. 36: “This power is, and must be from its very nature, incapable of any very exact definition or limitation. Upon it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property.” And, quoting from an opinion by Chief Justice Redfield of Vermont, he continues: “ ‘It extends to the protection of the lives, limbs, health, comfort, and quiet of all ■persons, and the protection of all property within the states * * * and persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the state. Of the perfect right of the legislature to do this, no question ever was, or, upon acknowledged general principles, ever can, be made, so far as natural persons are concerned.’ ”
And this court, In re Scrip Bill, 23 Colo. 504, said: “While it is difficult to define the boundaries of the police power, it admittedly extends to the protection of the lives, health and property of the citizens, and to the preservation of good order and the public morals.”
And in the case, Waters v. The People, 23 Colo.
The docking of a horse’s tail is cruelty, not only because of the torture inflicted by the operation, but because, by depriving the horse of the use of his tail, he is deprived of the use of a weapon supplied him by nature for his protection from the myriads of winged pests that infest the land. Counsel insist that the question of cruelty is not involved,' and that, assuming that the legislature has full power to prohibit docking, it has not the power to prohibit the use -of the horse, after his tail has been docked; and, conceding that the use of property may be taken away for the public good, without compensation to the owner, that the prohibition of the right to drive, work and use an unregistered horse does not tend to the protection of the health, comfort or good morals of the community, and is not, therefore, a valid exercise of the police power. They say that-, as the act itself is silent upon the subject of the purpose of the legislature in prohibiting the use of docked horses, unless we can clearly perceive from the terms of the act that
It belongs to the legislative department to exert the police power of the state, and to determine primarily what measures are appropriate and needful for the protection of the public morals, the public health or the public safety.- — Mugler v. Kansas, 123 U. S. 623.
“The public interests imperatively demand that legislative enactments should be recognized and enforced by the courts as embodying the will of the people, unless they are plainly and palpably, beyond all question, in violation of the -fundamental law of the constitution.” — Atkin v. Kansas, 191 U. S. 223.
It is said that the police power of the state is founded largely upon the maxim: “Use your prop- . erty in such manner as not to injure thát of another ’ ’ ; and counsel insist that the driving of an unregistered docked horse injures no one, and that as the police power is founded upon the maxim stated, unless the use of an unregistered docked horse can be shown to be injurious to others, the statute cannot be sustained as a valid exercise of the police power. “The welfare of the people is the supreme law,” is a maxim of the law; and it is upon these two maxims that the police power of the state is largely based. In the exercise of the police power, the legislature has a large discretion, and.it is our duty to sustain such legislation unless it is clearly and palpably and beyond all question in violation of the constitution.
We are of opinion that, in forbidding the use of a docked horse, the legislature has not exceeded its authority; that the interdiction is a reasonable and valid exercise of the police power of the state; and that the provisions of the federal and the state constitutions have not been violated. The questions here presented have been considered in very many eases by the supréme court of the United States. We shall not undertake a review of these decisions, but shall cite from a few of the more recent ones which, in our opinion, clearly sustain the right of the legislature to enact such statutes as the one now assailed.
The legislature of Kansas declared all places where intoxicating liquors were manufactured or sold to be common nuisances and that, whenever by the
“If, in the judgment of the legislature, the manufacture of intoxicating liquors for the maker’s own use, as a beverage, would tend to cripple, if it did not defeat, the efforts to guard the community against the evils attending the excessive use of such liquor, it is not for the courts, upon their views as to what is best and safest for the community, to disregard the legislative determination of that question. So far from such a regulation having no relation to the general end sought to be accomplished, the entire scheme of prohibition, as embodied in the constitution and laws of Kansas, might fail, if the right of each citizen to manufacture intoxicating liquors for his own use as a beverage were recognized.”
Eespecting Mugler’s claim that his property, if not employed in the manufacture of beer, would be of no value, and that the prohibition of it being so employed was, in effect, a taking of the property for public use without compensation, and depriving the
“This interpretation of the fourteenth amendment is inadmissible. It cannot be supposed that the states intended, by adopting that amendment, to impose restraints upon the .exercise of their powers for the protection of the safety, health, or morals of the community. * * * The principle, that no person shall be deprived of life, liberty, or property without due process of law, was embodied, in substance, in the constitutions of nearly, if not all, of the states at the time of the adoption of the fourteenth amendment; and it has never been regarded as incompatible with the principle, equally vital, because essential to the peace and safety of society, that all property in the country is held under the implied obligation that the owner’s use of it shall not be injurious to the community.”
Letters patent granting to Henry C. DeWitt and assigns the exclusive right to make, use and vend to others an article known as Aurora Oil were issued in 1867. By a statute of Kentucky, passed in the year 1874, the sale- or use of oil that would ignite or permanently burn at a less temperature than 130 degrees Fahrenheit was prohibited. The statute further provided that inspectors were required to brand casks and barrels containing oil, with the words ‘ ‘ standard oil,” or with the words “unsafe for illuminating purposes,” as inspection showed was proper. The assignee of DeWitt was convicted on the charge of selling oil known as Aurora Oil, the cask containing which had been- previously branded by an authorized inspector with the words “unsafe for illuminating purposes.” It was admitted that the Aurora Oil could not be made to conform to the standard of test required by the Kentucky statute as a prerequisite to the right to sell within that state illuminating oils
In Beer Co. v. Massachusetts, 97 U. S. 25, it is held that, “All rights are subject to the police power of a state, and if the public safety or the public morals require the discontinuance of any manufacture or traffic, the legislature may provide for its discontinuance, notwithstanding individuals or corporations may thereby suffer inconvenience; and that as the police power of a state extends to the protection' of the lives, health, and property of her citizens, the maintenance of good order, and the preservation of the public morals, the legislature cannot, by any con
In Lawton v. Steele, 152 U. S. 133, it is said: ‘ ‘ The extent and limits of what is known as the police power have been a fruitful subject of discussion in the appellate courts of nearly every state in the Union. It is universally conceded to include everything essential to the public safety, health, and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance. * * * Beyond this, however, the state may interfere wherever the public interests demand it, and in this particular a large discretion is • necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests.” And the court upheld the New York statute authorizing the summary destruction of nets set or maintained on the waters of the state in violation of the statute enacted for the protection of fish. At page 142 of .the report, the court says:1 ‘ ‘ It is said, however, that the nets are not in themselves a nuisance, but are perfectly lawful acts of manufacture, and are ordinarily used for a lawful purpose. This is, however, by no means a conclusive answer. Many articles, such, for instance, as cards, dice, and other articles used for gambling purposes, are perfectly harmless in themselves, but may become nuisances by being put to an illegal use, and in such case fall within the ban of the law and may be summarily destroyed. ’ ’ And on page 140, the court says: “While the legislature has no right arbitrarily to declare that to be a nuisance which is clearly not so, a good deal must be left to its discretion in that regard, and if the object to be accomplished is conducive to- the public interests, it may exercise a large liberty of choice in the means employed.”
The foregoing authorities establish:
1. That it is within the police power of the state to prohibit cruelty to animals, because such prohibition is a protection to the animals and tends to conserve the public morals.
2. That in the exercise of the power the legislature may adopt such reasonable means as is necessary to accomplish the purposes of the statute.
3. That to the. legislature is confided a large discretion in declaring the public policy, and that, unless the legislation is clearly and palpably in violation of the fundamental law, it will be sustained.
4. That all property is held under the implied obligation that the owner’s use. of it shall not be injurious to the public.
These propositions being established by abundant authority, it remains to be determined whether the means adopted by the legislature for the accomplishment of the purpose of preventing the species of cruelty forbidden by the statute can be regarded as a reasonable exercise of the power confided to the legislature. It is for the courts to determine whether the act can be justified as a reasonable exercise of
We regard the law as just, wise and humane, and withal a lawful exercise of the power confided to the legislature, because it conserves the public morals and because it punishes the cruel and senseless treatment by man of Ms best and most constant friend.
The judgment is affirmed.
Affirmed.