MARCUS R. KING v. COUNTY OF ARLINGTON
Record No. 4206
Supreme Court of Virginia
May 3, 1954
Present, Eggleston, Spratley, Miller, Smith and Whittle, JJ.
1084
Betty A. Thompson and Walter J. Newlon, for the plaintiff in error.
William J. Hassan, Peter J. Kostik and David L. Carpenter, for the defendant in error.
Marcus R. King, hereinafter referred to as the defendant, was convicted in the County Court of Arlington county under a warrant which charged that he “did, on the 18th day of Oct., 1951, in said County knowingly keep on his premises a vicious dog which evidenced on Sept. 26, 1951, a disposition to attack human beings by attacking Ann Marie Wynne, six years old, in violation of a County ordinance.” He appealed to the Circuit Court of Arlington county where he filed a demurrer, alleging in substance that section 7 of the county ordinance under which the warrant was issued was unconstitutional and void in that, (1) the county board had no power to adopt such section, and (2) such section was inconsistent with and contrary to the Constitution and general laws of the State of Virginia and the Constitution of the United States.
The demurrer was overruled but the defendant elected to stand thereon and admitted the allegations of the warrant. Whereupon the trial court found him guilty as charged and imposed a fine. We granted a writ to review that judgment.
The section of the ordinance under which the warrant of arrest was issued reads thus: “7. Vicious dogs-It shall be unlawful for any person to keep within the County of Arlington any dog which is known to be vicious or which has evidenced a disposition to attack human beings. Any person who shall violate this paragraph shall, upon conviction, be fined not more than $100.00, and each day‘s keeping of such dog shall constitute a separate offense. Upon conviction of
In a memorandum opinion overruling the demurrer the trial court held that the first two sentences of the section, prohibiting the keeping within the county of a dog “known to be vicious or which has evidenced a disposition to attack human beings,” and imposing a fine for so doing, were within the county‘s police power, were not inconsistent with the state law, and were therefore valid, but that the last sentence of the section providing for the destruction of such dog was inconsistent with the state law and invalid. Accordingly, the judgment did not direct that the dog be turned over to the game warden or other officer to be destroyed, as provided in that section of the ordinance.
On this appeal the defendant attacks the validity of the section on these grounds:
(1) Prohibiting the keeping of a vicious dog on an owner‘s premises is not a valid exercise of the county‘s police power.
(2) In enacting the “Dog Laws,”1 embraced in
(3) Granting that the county has the power to legislate on the subject, the section is nevertheless void because it is “inconsistent with the state law.”
(4) The third sentence of the section providing for the destruction of the dog, which the trial court held was invalid, is not severable, but “so permeates the whole” as to vitiate the entire section.
We do not agree with the contention of the defendant that the prohibition against keeping a dog “which
We take judicial notice of the fact that Arlington county is a thickly settled urban community with a population of 135,449 according to the 1950 United States census. Shelton v. Sydnor, 126 Va. 625, 638, 102 S. E. 83; Kirkpatrick v. Board of Sup‘rs. of Arlington Co., 146 Va. 113, 123-4, 136 S. E. 186.
It is well settled that the regulation of dogs is within the police power of the State and may be delegated to municipalities. 2 Am. Jur., Animals, §§ 31, 32, p. 719. “The power to regulate is not limited to dogs running at large, but extends to the keeping of dogs.” Id., § 31, p. 719. “The keeping of dogs in thickly settled municipalities is subject to rigid police regulations, without much regard to rights of the owners in such animals as property.” Id., § 32, p. 719. See also, McQuillin on Municipal Corporations, 3d Ed., Vol. 7, § 24.284, pp. 134-136.
Clearly, we think, the prohibition against keeping a dog “which is known to be vicious or which has evidenced a disposition to attack human beings,” is within this grant of police power. Hence, the section of the ordinance must be upheld unless it is invalid for some other reason.
But the defendant says that in enacting the “Dog Laws” (
To what extent a local governing body may regulate or control a subject which the State has undertaken to regulate or control is a matter upon which there is a diversity of judicial opinion. See 37 Am. Jur., Municipal Corporations, § 166, p. 791 ff; McQuillin on Municipal Corporations, 3d Ed., Vol. 6, § 23.04, p. 384 ff.
The mere fact that the State, in the exercise of its police power, has made certain regulations with respect to a subject does not prohibit a local legislature from dealing with the subject. Both the State and its local governmental agency may have concurrent jurisdiction over the same subject matter relating to local affairs. 62 C. J. S., Municipal Corporations, § 143, p. 286; 37 Am. Jur., Municipal Corporations, § 165, p. 790.
In Shaw v. City of Norfolk, 167 Va. 346, 349, 189 S. E. 335, 336, we quoted with approval the statement in McQuillin on Municipal Corporations, 2d Ed., Vol. 3, § 923, p. 36, that “whether the city may exercise control of state offenses must be determined by the legislative intent. And such intent must also decide the manner in which the power is to be exercised, and whether such control is to be exclusive or whether it is to be exercised concurrently with
While it is true that the “Dog laws” are comprehensive and provide for the exclusive licensing and taxing of dogs by the State, and for their regulation in many particulars, we do not agree that their purpose and effect were to withhold from the localities the entire field of regulation. The regulations embodied in these state laws are broad in their scope and relate to matters of state-wide concern. Obviously, situations may occur in urban or thickly populated communities which may permit and indeed require further local legislation not inconsistent with the provisions in the state law. Keeping a kennel of dogs, permitted under
No one would seriously contend that a municipality, in the exercise of its police power, could not prohibit the holding of a field trial, permitted under
In State v. Mueller, 220 Wis. 435, 265 N. W. 103, it was held that a state statute requiring the licensing of dogs did not invalidate a city ordinance which prohibited the keeping of more than two dogs over the age of three months within a residential area of the municipality.
Similarly, in Repass v. Town of Richlands, 163 Va. 1112, 178 S. E. 3, we held that the fact that one had been granted a license under a state statute to sell 3.2 beer in the town of Richlands did not deprive the town of the power to prohibit by ordinance the sale of such beverage within 300 feet of a public school.
We are of opinion that the fact that dogs are licensed and regulated to a certain extent under the state laws does not prevent a local governing body from enacting an ordinance, not inconsistent with the state law, prohibiting the
The state law prohibits the keeping of a dog addicted to attacking livestock or poultry (
Closely akin to the argument of the defendant that the state legislation has pre-empted the field of dog regulation is the further contention that the section of the ordinance is in conflict with the state law and therefore void.
It is, of course, fundamental that local ordinances must conform to and not be in conflict with the public policy of the State as embodied in its statutes. McQuillin on Municipal Corporations, 3d Ed., Vol. 6, § 23.07, p. 392 ff; 37 Am. Jur., Municipal Corporations, § 165, p. 787 ff. Indeed, that principle is embodied in our statutes which require that local ordinances must “not be inconsistent with” the state law.
But, “The mere fact that the state, in the exercise of the police power, has made certain regulations does not prohibit a municipality from exacting additional requirements. So long as there is no conflict between the two, and the requirements of the municipal bylaw are not in themselves pernicious, as being unreasonable or discriminatory, both will stand. The fact that an ordinance enlarges upon the provisions of a statute by requiring more than the statute requires creates no conflict therewith, unless the statute limits the requirement for all cases to its own prescription. Thus, where both an ordinance and a statute are prohibitory and the only difference between them is that the ordinance goes
If both the statute and the ordinance can stand together and be given effect, it is the duty of the courts to harmonize them and not nullify the ordinance. McQuillin on Municipal Corporations, 3d Ed., Vol. 6, § 21.35, p. 249 ff.
The argument of the defendant that the ordinance is inconsistent with the provisions of the state “Dog Laws” is two-fold. First, he says that while the state law prohibits an owner from keeping a dog which is unlicensed, afflicted with rabies, or addicted to the killing of livestock or poultry, it does not prohibit the keeping of a dog “which is known to be vicious or which has evidenced a disposition to attack human beings,” and hence the county may not prohibit his doing so. But it is well settled that a local legislative body, in the exercise of its police power, may forbid the doing of an act where state legislation is silent on the subject. “If either is silent where the other speaks, there can be no conflict between them.” 62 C. J. S., Municipal Corporations, § 143(3), p. 291, and cases there cited. See also, McQuillin on Municipal Corporations, 3d Ed., Vol. 6, § 21.35, p. 251.
Next, the defendant says that since he has obtained a state license for this dog, and it has none of the characteristics or afflictions which require its destruction under the provisions of the state law, the effect of such license is to
The final contention of the defendant is that the third sentence of the section providing for the destruction of the dog, which the trial court held to be in conflict with the state statute and therefore invalid, is not severable but vitiates the entire section.
The county does not challenge the correctness of the ruling of the trial court that the provision in the ordinance requiring the destruction of the dog is invalid. Hence, that matter is not before us and we express no opinion thereon. The only question presented to us is whether the invalidity of that portion of the ordinance, assuming it to be invalid, vitiates the entire section.
Section 12 of the ordinance provides: “Separability of Provisions. It is the intention of the County Board that each separate provision of this ordinance shall be deemed independent of all other provisions herein, and it is further the intention of the County Board that if any provision of this ordinance be declared invalid, all other provisions thereof remain valid and enforceable.”
The effect of such provision is to create the presumption that the ordinance is severable and that the valid portion
“The rule is that an act may be valid in one part, and invalid in another, and if the invalid is severable from the remainder, that invalid part may be ignored, if after such elimination the remaining portions are sufficient to accomplish their purpose in accordance with the legislative intent. Only if the void portion is the inducement to the passage of the act, or is so interwoven in its texture as to prevent the statute from becoming operative in accordance with the will of the legislature, is the whole statute invalid. Thus, when a part of an act is invalid but the remainder reflects the legislative intent and is complete in itself, then the remainder will be upheld.” 17 Mich. Jur., Statutes, § 28, p. 270. See also, Strawberry Hill Land Corp. v. Starbuck, 124 Va. 71, 77, 97 S. E. 362; New v. Atlantic Greyhound Corp., 186 Va. 726, 737, 43 S. E. (2d) 872, 877.
We agree with the trial court that an examination of section 7, in the light of these principles, shows that the last sentence is severable and does not vitiate the whole section. The first sentence of the section prohibits the act, and the second fixes the punishment by the imposition of a fine upon conviction of its violation. The third sentence merely fixes an additional penalty for the violation of this section by requiring that upon conviction of the offense the dog shall be destroyed in the manner therein provided. The elimination of the last sentence in no manner affects the operation and effect of the first two. Without it the ordinance is complete and effective. The prohibition against the unlawful act remains and a complete punishment by way of a fine for conviction likewise remains.
In the strikingly similar case of City of Greenville v. Nowlan, 281 Ill. App. 281, it was held that the provision of a city ordinance imposing a fine on the owner of a dog
On the whole we find no error in the judgment complained of and it is
Affirmed.
MILLER, J., dissenting.