Town of Wilton v. Weston

48 Conn. 325 | Conn. | 1880

Loomis, J.

The statute upon which this action is founded reads as follows:—[given in full on page 326.]

It is distinctly fqund that sheep owned by one Coley of the town of Weston, while in that town were attacked and damaged by dogs owned by Mann and Myers, residents of the town of Wilton, to the amount of thirty-five dollars, and although duly notified neither Mann and Myers nor the town of Wilton have paid the amount or any part of it to the treasurer of the town of Weston; and that prior to this suit the selectmen of Weston drew an order in due form upon the treasurer of that town, payable to Coley or his order, for the amount of the damage, which was given by the selectmen and accepted by Coley in full for his damage.

The counsel for the defendant town concedes that these facts bring the case within the terms and meaning of the statute, provided the giving of the order by the selectmen of Weston on its treasurer for the amount of Coley’s damage constituted a payment of such damage. The defendant would distinguish between the order on the treasurer to pay and the actual payment.

We do not think the statute contemplatés any such refinement.

By statute, (Gen. Statutes, p. 25, sec. 1,) it is made the duty of the selectmen of a town to settle all claims against it by drawing orders on the treasurer. When a claim is thus settled by the giving and acceptance of an order for the purpose, it may well be regarded as paid within the meaning of the statute in question. And besides, although the finding does not in terms say that the order was actually given and received as payment by the parties, yet in saying that it was given by the selectmen and accepted by Coley in full satisfaction, and that a receipt in full was given, we regard it as equivalent in meaning to payment.

As every element of a good claim is found to have been proved according to' the provisions of the statute, judgment for the plaintiff must follow, provided there is any validity in the statute. And this brings us to the main question in the case.

The claim made in the court below and upon which the motion in error is predicated, was, “ that the court could not render judgment for the plaintiff, because the statute upon which the action is based is incomplete and fatally defective, in that it does not provide that any or what judgment shall be rendered; and because it is invalid in so far as it makes a town, and consequently every inhabitant thereof, responsible for damages done by dogs where the owners reside within the town.” We will consider these two objections to the statute in their order.

1. Does the statute fail to provide that any or what judgment shall be rendered?

We think not. Although it is conceded that the act was not drawn with care, and the language employed to express the intention of the legislature is not well chosen, yet the meaning can be ascertained from the words used. It is said that the statute merely authorizes the selectmen, in a case like this, “to institute a suit” as a mere amusement or threat, but with no right to recover anything, and no rule of damages. This may do by way of extravagant criticism, but it is no fair rendering of the meaning of the statute. It is true that the object of the suit is not stated in express language, but, taking all the provisions in view and considering the subject matter and object of the statute, the meaning cannot be mistaken.

The first phrase in the section is ’■‘■damage done by dogs.” This is the subject matter for which remedies are provided, which are then specified. If the town pays for this damage then it may first be recovered of the owner or keeper of the dogs, if residents of such town; but, if not residents, then the selectmen may institute a suit against the town where the owner of the dogs resides. But what for ? Obviously to recover the same damage that the town would have recovered of the owner if resident in their own town. But the implication is greatly strengthened by the statement of the condition which wrill prevent or defeat such suit, namely:—“unless such owner or owners or such town or towns shall on notice pay to the treasurer of the town where such damage was done, the amount of such damage.” As paying “ such damage” defeats the suit, the necessary implication is that “ such damage” was the object of it or thing to be recovered.

And the same meaning also further appears from the last clause, which gives a remedy over:—“Any town which shall be obliged to pay any damage as aforesaid may recover the amount thereof from the owner or owners of the dog or dogs doing such damage.”

In this connection another difficulty is suggested, which, as it has occasioned considerable doubt and hesitation on the part of the court, we will consider, though not directly involved in the claim of the defendant as made in the court below.

Is the damage to be recovered the actual damage proved to have been done, or the amount which the selectmen shall consider to have been done and which they shall have paid. If we must adopt the latter as the true construction, we should conclude the law to be invalid. With no provision for notice to the parties, and no provision to make the selectmen a judicial tribunal, they cannot determine and fix the rights of the parties. The first provision of the act is phrased in such a way as to give color to this claim. But on the other hand, as we have seen, the subject matter which the statute proceeds to provide remedies for is “damage done by dogs tó sheep, lambs, or cattle,” which must be held to mean actual damage, found by the court before which the suit is finally instituted, if such suit shall be brought.

So far as the phrase “proved to the satisfaction of the selectmen to have been committed in their town,” must be construed as submitting the question in the first instance to the selectmen for the purpose of initiating the remedial proceedings, the law assumes that they will act with sound judgment and in the interest of justice. It assumes that if the damage was committed in their town they will be satisfied of the fact, and that if they make a payment to the owner of the injured animal, it will be of the actual damage. But the action of the selectmen must be held subject to review and revision. Abbott v. L’Hommedieu, 10 W. Va., 677. If by any error they pay more than the actual damage, the right of the town to recover must be restricted to the actual damage, although it cannot in any event exceed the amount paid.

It is due to the legislature to suggest that the provision we have been considering, and which has occasioned doubt as to the validity of the statute, was probably inserted with a view to facilitate an amicable adjustment, at least as between the owner of the sheep and the several towns that might be called upon to pay for the damage. It was assumed that the selectmen where the damage might be committed, and who were to be-called on in the first instance to pay, would be likely to estimate the amount as low as the truth would warrant before making payment, and that the town where the owners of the dogs doing the damage reside, in most cases would pay upon notice and demand, and would then in turn demand the amount of the owners of the dogs, and so the final liability would be ultimately placed where it properly belongs.

2. But it is further claimed that the statute is invalid in so far as it makes a town, and consequently every inhabitant thereof, responsible for damages done by dogs where the owners reside within the town.

If it be assumed that property in dogs stands on the same ground as that of property in other domestic animals, such, for instance, as the horse, we should be compelled to concede that this objection should prevail and the law should be declared invalid. But such assumption is unwarranted, as all the authorities agree. In Blair v. Forehand, 100 Mass., 140, Gray, J., says:—“ Beasts which have been thoroughly tamed and are used for burden, or husbandry, or for food, such as horses, cattle, and sheep, are as truly property of intrinsic value and entitled to the same protection as any kind of goods. But dogs and cats even in a state of domestication never wholly lose their wild natures and destructive' instincts, and are kept for uses which depend on- retaining and calling into action these very natures and instincts, or else for the mere whim or pleasure of the owners; and therefore, although a man might have such a right of property in a dog as to maintain trespass or trover for unlawfully taking or destroying it, yet he is held, in the phrase of the books, to have £no absolute and valuable property’ therein which could be the subject of a prosecution for larceny at common law.” See also Woolf v. Chalker, 31 Conn., 121.

It is found by experience that the destructive instincts of dogs, at the best of comparatively -little utility to the people of the state, are so great as to render sheep raising (an industry of great benefit to the state,) practically impossible without some extraordinary legislative interposition. The act in question was therefore adopted as a measure of internal police, having the two-fold object in view of encouraging the rearing of sheep on the one hand, and of discouraging the keeping of dogs on the other; it is therefore perfectly constitutional and legitimate in its object. Mitchell v. Williams, 27 Ind., 62.

But is the act valid in its methods of accomplishing the object in view ?

And this brings us to the- precise point of the objection. Why require the town to assume the burden of paying the damages in the first instance, and of bringing suit to recover the amount either of the owner of the dog or of the town where he happens to reside ?

The general answer is, that as a system of police regulation it cannot well be made effectual for the accomplishment of the objects except through some such agency on the part of the towns.

And as to the objection that it is contrary to natural right and justice, our answer is—

1st. By the provisions of the act the town treasury is relieved and replenished by the special tax or license fees which the keepers of all dogs are compelled to pay, upon penalty of being criminally prosecuted, or of having the dogs killed or muzzled. In the long run these license fees will in all probability amount to more than any town will be required to pay.

2d. The town called upon to pay the damages has by the same act a remedy over against the owner of the dogs doing the damage, and so finally the liability falls on the party in fault. The law assumes that this remedy over will, be effectual. «

3d. In further vindication of the justice of casting the burden and duty upon towns to the extent mentioned, it should be observed that towns have some responsibility in the promises, and can do something to prevent or diminish the evils complained of. The history of legislation on this subject in this state, from the early colonial statutes down to that in question, will show that dogs have been continually under the ban of the law as administered through the police powers of the towns. It is true that by the act of 1878, under which the proceedings in question were had, the powers vested in the town authorities for the destruction of dogs are more restricted than formerly. But they still remain to some extent under that act. Dogs not licensed are to be killed under the inducement of a bounty to be paid by the town; and by section eighth of the same statute every owner or keeper of a dog is required either to kill or muzzle his dog to the acceptance of the selectmen and subject to the order of the selectmen as to the removal of the muzzle.

In reaching the conclusion that the statute in question is valid, notwithstanding the weighty objections against it, we i have been guided by the safe and wholesome rule that where ! an act of the legislature admits of two constructions, one j valid and the other invalid, courts should adopt the former ’and uphold the statute, if it may be done by any reasonable interpretation, though it be not the most obvious. French v. Teschemaker et als., 24 Cal., 518; The People v. San Francisco R. R. Co., 35 Cal., 606; Bigelow v. West Wisconsin R. R. Co., 27 Wis., 478; Buncombe v. Prindle, 12 Iowa, 1; Colwell v. May’s Landing Water Power Co., 4 C. E. Green, 245; Iowa Homestead Co. v. Webster County, 21 Iowa, 221; Rosevelt v. Godard, 52 Barb., 533; Hepburn v. Griswold, 8 Wall., 603.

There was no error in the judgment complained of.

In this opinion Park, C. J., and Pardee, J., concurred; Granger and Hovey, Js., dissented.