289 S.W. 204 | Ky. Ct. App. | 1926
Affirming.
The appellants and plaintiffs below, five in number, styling themselves as residents and citizens of Pulaski county and conceiving that the unrepealed portions of chapter 10, page 25, Acts 1906, and chapter 112, Acts 1918, as amended by chapter 157 Acts 1920, all composing our present statutory law commonly known as the "Dog Law" were each and all unconstitutional and invalid, brought this action on behalf of themselves and other citizens similarly situated against the tax commissioner and other officers possessing imposed duties in the enforcement of that law, to enjoin them from performing any *206 such duties, including the listing of dogs for taxation and the collection of taxes thereon. Five specific reasons were set out in the petition in support of the contention that the entire law was unconstitutional, and multitudinous are the reasons argued in brief in support of those five stated in the petition. The named defendants entered their appearance by filing answer, in which they agreed with plaintiffs and joined in the prayer to have the law declared unconstitutional; but before submission or judgment the Commissioner of Agriculture for the Commonwealth, pursuant to the rights and duties imposed on him by section 32 of the 1918 act, filed his intervening pleading and asked to be made a party defendant, which was done, and on his defense the court finally adjudged the statutes to be constitutional, and dismissed the petition, to reverse which plaintiffs prosecute this appeal.
At the outset it may be stated that the judgment was proper and should be affirmed without any reference to or consideration of any of the alleged constitutional reasons for declaring the law unconstitutional, upon the ground that plaintiffs nowhere in their petition or any pleading filed by them alleged that they were the owners of any dog or, if so, that their rights as such owners were about to be invaded by any act threatened or otherwise on the part of defendants in the enforcement of the statutes. It has long been a settled rule with this and other courts that no one may question the validity of a statute, unless he was already or was about to be injuriously affected thereby. City of Newport v. Merkel Brothers,
The great majority if not all of the alleged objections to the law are bottomed upon the theory that a dog is inherently property, and, as a consequence, certain provisions of the statute authorizing the killing of dogs under specified circumstances' and the provisions requiring a flat taxation of a fixed amount on all dogs of the same class regardless of the valuation of the dog, because of its age, breed and training, violates certain constitutional provisions, among which are: That "Absolute and arbitrary possession over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority," and that taxes shall be equal on all property subject to taxation. Those two illustrations serve to indicate the error in the theory of the petition, which, we repeat, assumes that a dog is unqualifiedly property upon an equal dignity and with the same rights of protection as other recognized species of property. The fundamental error being that, whatever may have been his status at common law, courts have long since come to the conclusion that "on account of their liability to break through all discipline and act according to their original savage nature, and because all are more or less subject to attacks of hydrophobic madness, the law has properly considered them as in a class by themselves, as is evidenced by the fact, which will sufficiently appear further on in this article, that they have always been made the subject of special and peculiar regulations" 1 Rawle C. L. 11-12, para. 56.
Mr. Freeman, in his annotation to the case of Hamby v. Samson,
In line with the universal rulings of courts as above pointed out we held in the case of Commonwealth v. Markham, 7 Bush 486, that a certain ordinance of the city of Frankfort providing for the registration and taxation of dogs and for punishment of their owners if they should fail to do so, followed by the right of the police to kill any dog not carrying the prescribed indices of its owner having complied with the law, were each a lawful exercise of the police power. And in the subsequent case of Farney v. Van Arsdell,
It is true that the two later acts prescribed some additional requirements to enforce the police purpose of the legislature in enacting them, but such additional features are of the same class and present no additional constitutional objections to their enactment, with the possible exception of the right of the sheriff to go upon and search the premises of the citizen for the purpose of ascertaining whether he harbors an unlicensed dog. It is urged against the latter that it violates section 10 of our Constitution in that it authorizes a search without a warrant; but whether that be true or not, we are not called on to determine in this case for the reason first stated above. Under that reason, before plaintiffs could complain, it should appear that their premises either had been so unlawfully searched and that the discovered evidence was to be used against them, or that such a search was threatened and the proceedings were instituted to prevent it. Likewise could they so complain if they had been arrested for violating any of the provisions of the statute, in which case they might raise the question by objecting to the introduction against them of the evidence that had been discovered by the alleged unlawful search; but until they are so circumstanced as to become directly affected they have no right to raise the question or to require the courts to determine it, and for that reason we decline to pass upon it in this opinion.
We have arrived at the above conclusions notwithstanding history may be searched in vain to find a living creature exhibiting as much fidelity and affection than does the dog to and for his master. Neither cold, heat, danger nor starvation deters him from manifesting those most excellent qualities in his love for his master, and those with whom he constantly associates. History is filled with instances where all others have fled, but the faithful dog stood guard, either as a mourner at his master's grave or with a determined purpose to administer to the latter if occasion presented itself. The press dispatches *211 constantly record his unparalleled deeds of heroism for the protection and benefit of mankind, even at the sacrifice of his own life. Because of those qualities his virtues have been touchingly described by poets and celebrated in song, and rightfully the dog as a companion is most affectionately regarded by all persons who truly estimate loyalty and friendship as factors in smoothing the path of this world's existence. For those reasons some of the provisions of the statute whereby the innocent dog forfeits his life because of derelictions of an unappreciative master, are to be regretted. But, notwithstanding his many virtues, he also has faults, on account of which the law, as, we have seen, does not accord to him the full measure of protection extended to other articles of property, leaving his status and the regulations of his existence to be fixed by the legislature as it in its wisdom sees proper in the lawful exercise of its police power. In other words, because of his sometimes vicious and destructive qualities he has been regarded and recognized by the law as only qualified property with the right in the legislature under the police power to prescribe regulations for his continued existence by either enlarging or abridging those recognized by the common law. When that is done it may not be said by his owner that his property rights have been interfered with, nor that police license fees invade constitutional requirements relating to taxation, unless the legislature first exceeds the limits of the police power.
For the reasons stated above the judgment is affirmed.