203 P. 323 | Or. | 1922
The plaintiff contends that under Article XI, Section 2, and Article IY, Section la of the Constitution of the state, the licensing and control of dogs kept in cities and towns are matters of purely local and municipal concern; that the power to legislate thereon resides exclusively in the legal voters of the city or town and not in the legislature of the state, and that the act in question, Chapter 186 of the General Laws of Oregon, 1919, is therefore unconstitutional and void so far as it attempts to authorize the licensing and control of dogs kept in cities and towns.
It is the wisdom of the legislature and not the judgment of the court which determines the necessity for legislation upon any particular subject and the man
In support of his contention the plaintiff cites the case of Rose v. Salem, 77 Or. 77 (150 Pac. 276). That case was largely based upon the assumption that the statute having declared dogs to be personal property and having made them the subject of larceny, the right of ownership in dogs was thereby placed on
“This enactment is but a legislative declaration of the present-day common law, found in the decisions of most of the states of the Union. This modern conception of the dog as personal property, whether embodied in legislative enactments or judicial decisions, is the natural evolution of the status of the dog as known at common law which considered the animal to be property, yet of an inferior sort: Woolf v. Chalker, 31 Conn. 121 (81 Am. Dec. 175); Jemison v. Southwestern R. R. Co., 75 Ga. 444 (58 Am. Rep. 476); State v. Topeka, 36 Kan. 76 (12 Pac. 310, 59 Am. Rep. 529); 1 R. C. L. 1113.”
If it were not for the fact that practically all of the decisions of the courts, including the Supreme Court of the United States, have decided this question
' The question of whether a law enacted by the legislature of a state contravenes the federal Constitution is ultimately a question for the federal courts to determine, and their decision upon that question is binding upon every state court.
In Sentell v. New Orleans C. R., 166 U. S. 698 (41 L. Ed. 1169, 17 Sup. Ct. Rep. 693, see, also, Rose’s U. S. Notes), after citing with approval excerpts from many authorities upholding as constitutional, statutes and ordinances equally as drastic as the provisions under consideration here and some of them containing identical provisions complained of in the act in question, the court said:
“Even if it were assumed that dogs are property in the fullest sense of the word, they would still be subject to the police power of the state, and might be destroyed or otherwise dealt with as in the judgment of the legislature is necessary for the protection of its citizens. That a state, in a bona fide exercise of its police power, may interfere with private property, and even order its destruction, is as well settled as any legislative power can be, which has for its objects the welfare and comfort of the citizen. For instance, meats, fruits, and vegetables do not cease to become private property by their decay; but is is clearly within the power of the state to order their destruction in times of epidemic, or whenever they are so exposed as to be deleterious to the public health. There is also property in rags and clothing; but that does not stand in the way of their destruction in case they become infected and dangerous to the public health. No property is more sacred than one’s home, and yet a house may be pulled down*554 or blown np by tbe public authorities, if necessary to avert or stay a general conflagration, and that, too, without recourse against such authorities for the trespass: Bowditch v. Boston, 101 U. S. 16, [25 L. Ed. 980]; Mouse’s Case, 12 Coke, 63; British Cast Plate Mfrs. v. Meredith, 4 T. R. 794, 797; Stone v. New York, 25 Wend. 157; Russell v. New York, 2 Denio, 461.
“Other instances of this are found in the power to kill diseased cattle, to destroy obscene books or pictures, or gambling instruments, and, in Lawton v. Steele, 152 IT. S. 133, it was held to be within the power of a state to order the summary destruction of fishing nets, the use of which was likely to result in the extinction of valuable fisheries within the waters of the state.
“It is true that under the 14th Amendment no state can deprive a person of his life, liberty, or property without due process of law; but in determining what is due process of law we are bound to consider the nature of the property, the necessity for its sacrifice, and the extent to which it has heretofore been regarded as within the police power. So far as property is inoffensive or harmless, it can only be condemned or destroyed by legal proceedings, with due notice to the owner; but so far as it is dangerous to the safety or health of the community, due process of law may authorize its summary destruction. As was said in Jenkins v. Ballantyne, 8 Utah, 245, 247 [30 Pac. 760, 16 L. R. A. 689]: ‘The emergency may be such as not to admit of the delay essential to judicial inquiry and consideration, or the subject of such action and process may be of such a nature, or the conditions and circumstances in which the act must be performed to effect the protection and give effect to the law may be such, as to render judicial inquiry and consideration impracticable.’ ”
In the same case the court said:
“It is purely within the discretion of the legislature to say how far dogs shall be recognized as prop*555 erty, and under what restrictions they shall he permitted to roam the streets. # * There is nothing in this law that is not within the police power, or of which the plaintiff has a right to complain. ’ ’
See, also, Nicchia v. New York, 254 U. S. 228 (13 A. L. R. 826, 65 L. Ed.-, 41 Sup. Ct. Rep. 103).
The question involved here is a federal question and we think that the decision just cited is decisive upon that question. It would be not only futile, but it would be highly improper for this court to decide any federal question contrary to the decisions of the Supreme Court of the United States. The authorities upon this question are collated in 8 A. L. R. 74, where it is stated that—
“Statutes and ordinances regulating the running at large of dogs, usually requiring their registration or licensing, prohibiting their running at large unless muzzled or collared, and providing for their summary destruction when found running at large in violation of the statute or ordinance, have generally been sustained as a valid exercise of the police power.”
Cited, in support thereof, are the following cases: Sentell v. New Orleans & C. R. Co., 166 U. S. 698 (41 L. Ed. 1169, 17 Sup. Ct. Rep. 693)Sibley v. Lastrico, 122 Iowa, 211 (97 N. W. 1174); State ex rel. Curtis v. Topeka, 36 Kan. 76 (12 Pac. 310, 59 Am. Rep. 529); Commonwealth v. Markham (Ky.), 7 Bush, 486; Hagerstown v. Witmer, 86 Md. 293 (37 Atl. 965, 39 L. R. A. 649); Blair v. Forehand, 100 Mass. 136 (1 Am. Rep. 94, 97 Am. Dec. 82); Morewood v. Wakefield, 133 Mass. 240; Julienne v. Jackson, 69 Miss. 34 (10 South. 43, 30 Am. St. Rep. 526); Morey v. Brown, 42 N. H. 373; Fox v. Mohawk & H. River Humeme Soc., 165 N. Y. 517 (59 N. E. 353, 80 Am. St. Rep. 767, 51 L. R. A. 681); People ex rel. Renshaw v.
In 1 E. C. L. 1128, it is said:
“Where provision is made for the summary destruction of dogs kept in violation of law, it is held with great unanimity by the courts that such regulations, no matter how stringent in character, nor how summary the proceedings, are entirely within legislative power, and free from constitutional objection, though the property of the owner is destroyed without notice or hearing in the execution of the law.” Citing Nehr v. State, 35 Neb. 638 (53 N. W. 589, 17 L. R. A. 771); State v. Kelley, 86 Vt. 237 (84 Atl. 861, 42 L. R. A. (N. S.) 437), and other authorities.
“Thus the courts have declared to be valid statutes and ordinances providing that all dogs shall be licensed, registered, etc., and that any dog found at large in violation of such requirement may be killed by any police officer, or other person.”
Dickerman v. Consolidated R. Co., 79 Conn. 427 (65 Atl. 289, 8 Ann. Cas. 417); Walker v. Towle, 156
“All taxes shall be levied and collected under general laws operating uniformly throughout the state.” Article IX, Section 1.
In support of this contention plaintiff cites and relies mainly upon the cases of Ellis v. Frazier, 38 Or. 462, 468 (63 Pac. 642, 53 L. R. A. 545), and Reser v. Umatilla County, 48 Or. 326 (86 Pac. 595, 120 Am. St. Rep. 815). In Ellis v. Frazier, supra, the question presented was whether an act of the legislative assembly which imposed in certain counties a tax of $1.25 on bicycles which, when collected was to be deposited with the county treasurer in a fund to be known as the “path fund” and the moneys, so col
In Reser v. Umatilla County, supra, the court held that the act then under consideration, was not for licensing purposes, but was a revenue law imposing a burden or tax upon foreign sheep; that the owners
In each of these cases it was held that the burden imposed was a tax and not a license, and therefore neither case supports plaintiff’s contention. In this case the purpose of the act under consideration is not to impose a tax but to license dogs and to regulate the manner in which they may be kept within the state. This is a matter entirely within the police power of the state and is a valid exercise of that power.
This involves the question of the power of the legislature to dispose of the moneys collected from the payment of license fees and from fines imposed for violations of the act, but placing the same in the custody of the county treasurer to reimburse the owners of domestic animals in the county for losses sustained through the death or injury of such animals caused by dogs.
Mr. Freund, in his work on Police Power, Sections 433 and 434, states the law as follows:
“Where the law levies contributions from one class to make up an indemnity fund in favor of another, without any connection between the business of those*560 assessed and the loss to be provided against, the compulsion is without justification.”
But he also says:
“The controlling consideration is the existence of a risk or danger, which the police power may seek to minimize; and it is reasonable that those who create or maintain the risk or danger for their own benefit should consent to the most effectual means of obviating its harmful consequences; and collective responsibility is a wise and conservative method of meeting the risk, and its imposition should be allowed as a valid condition of the right of keeping a dangerous instrument.”
He then says:
“Upon these principles indemnity is provided under the laws of several states (naming in the footnote New York, Illinois, Ohio, Michigan and Indiana) for the loss of sheep killed by dogs. A tax is levied for the keeping of every dog upon its owner, and the amount thus collected is constituted a fund for the payment of damages resulting from such loss.”
This law was sustained, the author says, in Tenney v. Lens, 16 Wis. 566, on the ground that the keeping of dogs is under the absolute control of the legislature and that right may be conditioned upon the payment-of a license. In Van Horn v. People, 46 Mich. 183 (9 N. W. 246, 41 Am. Rep. 159), and Holst v. Roe, 39 Ohio St. 340 (48 Am. Rep. 459), the legislation was upheld as an exercise of the police power as distinguished from the taxing power and in Cooley v. Board of Wardens, 12 How. 299 (13 L. Ed. 996), it was sustained, because it was for the protection of an important industry, which was a legitimate object of legislative action and the legislature were the judges of what means are best calculated to accomplish the object.
“As we view it, the statute does not confer any special privilege on the owners of sheep. It merely protects these owners from the destruction of their property by dogs. It is the duty of the state to protect every citizen in his life,' liberty, and property; and it certainly is within the competency of the legislature to exercise the police power of the state to protect all property against the ravages of destructive animals. The question as to how this is to be done and what property is to be so protected is a matter of legislative discretion. Undoubtedly the sheep industry is a most important one to the whole state. All of our citizens are interested in an industry which supplies the market with wholesome meat, provides means of obtaining warm and comfortable clothing, and at the same time furnishes labor to the otherwise unemployed. It is only necessary to allude to this phase of the question. The importance of the industry as a whole is most obvious. It is equally obvious that sheep are particularly liable to the ravages of dogs. They have neither the fleetness to escape, nor the courage to defend themselves from attack, and their silent suffering enables the dog to prey upon them without any danger that the owner will' be warned of the destruction of his property by the outcry of the dying animal. No other domestic animal that we can call to mind is so liable to destruction by dogs as the sheep. It therefore seems to us clearly the duty of the state, if the furtherance of the sheep industry is a desirable end, to so regulate the ownership of dogs as to protect the sheep from destruction bv these animals. The statute is cer*562 tainly a reasonable one, and lays only a small burden upon the owner of each dog; and, in effect, it only requires the owner to make good the damage done by his property. The fact that sheep are generally killed at night when it is impossible to ascertain the owner of the dog committing the ravages makes it necessary, if protection is to be had, through this channel at all, that each owner of a dog should be required to contribute a small amount to a common fund dedicated to the remuneration of owners of sheep killed by unknown dogs. As said before, this is simply requiring the owners of dogs to make good the ravages of dangerous animals kept by them; and no citizen has just cause of complaint, if he keeps animals destructive to the property of others, that he is required to make good the damage done by them. The status, in truth, is but an enforcement of the maxim, ‘Sic utere tuo ut álienwn non laedas,’ and, as such, its constitutionality is beyond successful question.”
What is said here is not intended to apply to statutes and ordinances providing for the impounding and sale of cattle, horses and the like. In such cases a different rule prevails.
For the reasons above stated, the judgment of the lower court is affirmed and it is so ordered.
Affirmed.
