Commonwealth v. Dow

| Mass. | Oct 15, 1845

Dewey, J.

The authority to make by-laws as to the licensing, regulating and restraining of dogs going at large, and to affix penalties for the violation of the same, is given to towns by Rev. Sts. c. 58, <§>10. But it is objected to the validity of the by-law, in the present case, that, in the form in which it was adopted, it was not confined to dogs owned or kept in New Bedford, but was of general application to all dogs in the Commonwealth, and therefore not within the authority vested in the town. It is a sufficient answer to this objection, that although the language of the by-law is general, yet it is to be read and understood as applying to cases within the town of New Bedford; there being no direct words, in the by-law itself, giving it a more extended application; and we are to assume that the town intended to act within the limits of the authority vested in it by the statute. If there were a prosecution under this by-law, against one not amenable to the by-laws of New Bedford, such excess of jurisdiction might well be relied upon as a defence, if the language of the bylaw was open to the construction given to it by the counsel for the defendant.

It is then urged, that the by-laws of New Bedford, regulating the going at large of dogs, and licensing the same, are invalid in law, as they contravene the general provisions of the Rev. Sts. c. 58, <§><§> 10 -12. The precise objection is this : The by-law of the town, passed May 6th 1843, in <§> 4, affixes a penalty of ten dollars for permitting a dog to go at large, and also a further penalty of ten dollars if said dog wear a collar without license ; and this latter penalty is said to conflict with <§> 12 of c. 58 of Rev. Sts. which requires that any person, who shall keep or own any dog, shall cause to be constantly kept about the neck of such dog a collar, with the name and place of residence of such owner or keeper legibly marked on the same. There would seem to be a conflict between these two requirements ; and if such should be found to be the case, the by-law must be held inoperative, as it is not to be repugnant to the general laws. But if this be so, the repugnancy applies only to the penalty annexed to the wearing of a collar without license. The other penalty of ten dollars for permitting a dog to go at large, although found in the same section, as arranged in the by-laws, is wholly distinct in its provisions, and in the penalty. This exercise of authority, in restraining dogs going at large, is clearly within the power of the town, and may be enforced. The complaint, in the present case, is wholly restricted to the offence of permitting the dog to go at large, and the by-law which imposes a penalty for that act being well authorized by the statute, it is unnecessary to determine as to the validity of the by-law making it a penal offence to permit a dog to wear a collar without a license.

It is then further objected, that this form of proceeding by complaint is not authorized by law. The Rev. Sts. c. 15, §13, provide that penalties for the violation of the by-laws of t town may be recovered by complaint before a justice of the peace; and St. 1834, c. 33, § 1, gives jurisdiction to the police court of the town of New Bedford of all misdemeanors, &c. committed within that town, of which justices then had or thereafter might have cognizance. The prosecution for the penalty, in the manner adopted in the present case, was fully authorized.

The only remaining exception taken by the defendant is to the instructions of the presiding judge as to what constitutes going at large by a dog, within the meaning of the by-law. We are all quite clear that the instructions were sufficiently favorable to the defendant. The object and purposes of the by-law, and the mischief to be avoided by enforcing its penalties, certainly require its application to be extended as far as it was by the ruling here given by the court of common pleas

Exceptions overruled.