396 A.2d 228 | Me. | 1979
By District Court complaint dated November 2, 1977, the Defendant, Ralph T. Clarke, was charged with keeping, on October 13, 1977, an unlicensed dog in violation of 7 M.R.S.A. § 3451 (Supp.1977).
We deny the appeal.
On October 13, 1977, the Defendant was the keeper of a seventeen-year-old German shepherd dog. Although the Defendant had licensed the dog in the previous two years, he refused to purchase the required tag in 1977, thereby violating 7 M.R.S.A. § 3451 (Supp.1977). He based his refusal upon a contention that the dog licensing statute violated both the due process clause and the equal protection clause of the
Before we can address the merits of the Defendant’s constitutional contentions, we must first resolve a potentially dispositive threshold question.
On November 2, 1977, the complaint initiating this case as a criminal prosecution was filed in Maine District Court, District Twelve (Skowhegan). Without trial or judgment in the District Court, the case was, pursuant to Rule 40, D.C.Crim.R.,
The threshold question arises from uncertainty over whether the decriminalization of the conduct proscribed by the “dog license” statute, effective October 24, 1977, (midway between the date of the offense, October 13, 1977, and the date of the complaint, November 2, 1977) had the effect of prohibiting the transfer of the case from the District Court to the Superior Court.
7 M.R.S.A. §§ 3451 and 3701, in combination, declare that whoever keeps an unlicensed dog over six months of age “shall be punished by a fine of not more than $25.00 to be recovered by complaint before any District Court.”
The answer to the problem lies entirely within an interpretation of 17-A M.R.S.A. § 1(2).
Our conclusion is further supported by the third sentence of 17-A M.R.S.A. § 1(2), which given the defendant’s consent, allows a court to apply the sentencing provisions of § 4-A(3) to crimes committed prior to the effective date of the Code. This sentence would be mere surplusage if the Legislature had intended the Criminal Code to apply to crimes committed before the Criminal Code’s effective date as well as those committed thereafter. Indeed, the third sentence of § 1(2) evidences a legislative effort to carve out a specific statutory exception to the general rule regarding the Criminal Code’s application.
Finally, the general tone of the whole of 17-A M.R.S.A. § 1(2) supports our reading of the first sentence. At the same time the Legislature added § 4-A to the Criminal Code (P.L.1975, c. 740, § 14), it also amended § 1(2) of the Criminal Code (P.L.1975, c. 740, § 10).
We move on to the substantive issues raised on this appeal.
Citing the due process clauses of the Maine Constitution (Art. 1 § 6-A) and United States Constitution (XIV amend.) as well as the legislative power clause (Art. IV, pt. 3, § 1) of the Maine Constitution, the Defendant contends that 7 M.R.S.A. § 3451 (Supp.1977) is unconstitutional. The Defendant’s argument, which we reject, is that the dog licensing statute, as applied to a dog kept on the owner’s property and under his control, bears no substantial relationship to public health, safety, morals or general welfare.
For reasons relating primarily to the health and safety of the community, the State has a significant interest in regulating and controlling dogs. Sentell v. New Orleans and Carrollton R.R. Co., 166 U.S. 698, 706, 17 S.Ct. 693, 41 L.Ed. 1169 (1897); Blair v. Forehand, 100 Mass. 136, 141 (1868); Rapid City v. Tuning, 82 S.D. 442, 147 N.W.2d 604, 605 (1967).
One of the purposes of requiring a dog license is to ensure that the dog has been immunized against rabies. As set forth in 7 M.R.S.A. § 3451 (Supp.1977), “No city or town clerk shall issue a license for any dog until the applicant has filed with such clerk proof that such dog has been immunized against rabies . . . .” Furthermore, the Legislature has recognized that dogs, while ordinarily harmless, may occasionally be or become violent causing injury to humans, 7 M.R.S.A. § 3604 (Supp.1977), livestock and poultry, 7 M.R.S.A. § 3602 (Supp. 1977). The license requirement is an eminently reasonable method for controlling rabies as well as tracing the dog’s owner so that such owner can answer in damages, 7 M.R.S.A. § 3651, or fine, 7 M.R.S.A. § 3652 (Supp.1977). Moreover, this licensing requirement has the salutary effect of permitting notice to be given to a dog’s owner prior to its possible destruction so that the owner may, if he chooses, contest the issue of whether his dog is dangerous and vicious. 7 M.R.S.A. § 3605 (Supp.1973). Defendant takes nothing by this argument.
As his second point the Defendant alleges an equal protection violation because there is no rational basis for distinguishing between dog owners and owners of other animals kept as pets which are not subject to a licensing requirement. We disagree.
A dog’s potential for rabies and substantial violence generally sets it apart from other popular domestic animals. Sentell v. New Orleans and Carrollton R.R. Co., supra 166 U.S. at 701, 705, 17 S.Ct. 693; Blair v. Forehand, supra 100 Mass. at 141-42. Thus, the Legislature has long enacted statutes relating to dogs. See Prescott v. Knowles, 62 Me. 277 (1874). Prior to Maine’s achieving statehood, the Commonwealth of Massachusetts had some type of canine control dating from at least 1715. Blair v. Forehand, supra 100 Mass. at 141. The licensing requirement of 7 M.R.S.A. § 3451 (Supp.1977) is rationally related to such differences. Nadeau v. State, Me., 395 A.2d 107 (1978). We find no equal protection violation. See State ex rel. Curtis v. Topeka, 36 Kan. 76, 12 P. 310 (1886) and Robberson v. Gibson, 62 Okl. 306, 162 P. 1120 (1917).
Finally, Defendant’s argument that the legislative power was here improperly exercised is grounded in his assertion that under the statute there was for the dog impliedly “a license to run at large.” As we have
The entry, therefore, is:
Appeal denied.
Judgment affirmed.
. 7 M.R.S.A. § 3451 (Supp.1977) provides in pertinent part:
Each owner or keeper of a dog of the age of 6 months or over, except dogs kept under a kennel license as provided in this section, shall, on or before January 1st, annually, or at such time as such dog becomes 6 months old, cause such dog to be licensed in the municipal clerk’s office in the town where such dog is kept.
. Rule 40, D.C.Crim.R., provides in pertinent part:
In all prosecutions in the District Court the Defendant, after arraignment and plea of not guilty, may request that the action be transferred to the Superior Court.
. We do not understand the language of 7 M.R. S.A. § 3701 to prohibit a defendant from transferring his case to the Superior Court, provided it was a criminal case. Rather, we read the language, “to be recovered by complaint before any District Court,” to require only that any proceeding under § 3701 be commenced by a complaint filed in the District Court. There is nothing in § 3701 to suggest that the “dog license” prosecution once commenced in the District Court is not subject to the usual statutory provisions permitting either transfer or de novo appeal to the Superior Court. Indeed, the statutes make the contrary clear. By 15 M.R. S.A. § 2114 (Supp.1975), the Legislature granted defendants in the District Court the right to transfer all misdemeanor prosecutions to the Superior Court. See also Rule 40, D.C.Crim.R. ["all prosecutions in the District Court may be transferred (Emphasis added)].” Likewise, 15 M.R.S.A. § 2111 (Supp.1975) gives “[a]n aggrieved defendant,” without limitation, the right to appeal from any judgment in the District Court, and in the Superior Court on appeal, that “appellant shall be entitled to a trial do novo.” Rule 39(b), D.C.Crim.R.
.The “saving clause” is found in 17-A M.R. S.A. § 1(2) (Supp.1977), which states:
Except as provided in section 4-A, this code shall become effective on May 1, 1976, and it shall apply only to crimes committed subsequent to its effective date. Prosecution for crimes repealed by this code, which are committed prior to the effective date shall be governed by the prior law which is continued in effect for that purpose as if this code were not in force; provided that in any such prosecution the court may, with the consent of the defendant, impose sentence under the provisions of the code. In such cases, the sentencing authority of the court is determined by application of section 4-A, subsection 3, to prior law. For purposes of this section, a crime was committed subsequent to the effective date if all of the elements of the crime occurred on or after that date; a crime was not committed subsequent to the effective date if any element thereof occurred prior to that date, or if the evidence may reasonably be interpreted to establish that any element may have occurred prior to that date.
. If keeping a dog without a license had been decriminalized prior to October 24, 1977, the only remedy available to the State would have been civil in nature, thereby invoking the Rules of Civil Procedure. Rule 80H(g), D.C.Civ.R., as amended October 24, 1977, expressly provides that there can be no removal of civil violation proceedings from the District Court to the Superior Court. Civil violation proceedings must run to judgment in the District Court, with the Superior Court entertaining only questions of law on appeal. See Rule 73(a), D.C.Civ.R.
. With the exception of § 4-A(l)(B), which was subsequently amended by P.L.1977, c. 564, § 84, to extend its effective date from October 1, 1977 to 90 days after the adjournment of the 108th Legislature, i. e., October 24, 1977, § 4-A as well as § 1(2) came into the Code in their present form in P.L.1975, c. 740, §§ 14, 10, respectively.
.P.L.1975, c. 740, § 10 added, inter alia, the following clause to the end of the fourth sentence of § 1(2):
or if the evidence may reasonably be interpreted to establish that any element may have occurred prior to that date.
See note 4 above for the rest of the language of the fourth sentence of § 1(2).