Blair v. Walter Forehand. James Hutchinson vs. Same. Edwin W. Smith vs. Same, 100 Mass. 136 (Mass.)

Gray, J.

All rights of property are held subject to such reasonable control and regulation of the mode of keeping and use as the legislature, under the police power vested in them by the Constitution of the Commonwealth, may think necessary for the preventing of injuries to the rights of others and the security of the public health and welfare. In the exercise of this power, the legislature may not only provide that certain kinds of property (either absolutely, or when held in such a manner or under such circumstances as to be injurious, dangerous or noxious) may be seized and confiscated upon legal process after notice and hearing; but may also, when necessary to insure the

public safety., authorize them to be summarily destroyed by the municipal authorities without previous notice to the owner — as in the familiar cases of pulling down buildings to prevent the spreading of a conflagration or the impending fall of the buildings themselves, throwing overboard decaying or infected food, or abating other nuisances dangerous to health. Commonwealth v. Alger, 7 Cush. 85. Fisher v. McGirr, 1 Gray, 27. Parsons v. Pettingell, 11 Allen, 512. Salem v. Eastern Railroad Co. 98 Mass. 443, 444. License Cases, 5 How. 581, 589, 632. Dewey v. White, Mood. & Malk. 56. 2 Kent Com. (6th ed.) 339, 340.

There is no kind of property over which the exercise of this power is more, frequent, or more necessary, than that which is the subject of the present actions. In regard to the ownership of live animals, the law has long made a distinction between dogs and cats, and other domestic quadrupeds, growing out of the nature of the creatures and the purposes for which they are kept. 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 either for uses which depend on retaining and calling into action those very natures and instincts, or else for the mere whim or pleasure of the owner; 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 was held, in the phrase of the boobs, to have “ no absolute and valuable property ” therein, which could be the subject of a prosecution for larceny at common law, or even, according to some authorities, of an action of detinue or replevin, or a distress for rent, or which would make Mm responsible for the trespasses of his dog on the lands of other persons as he would be for the trespasses of his cattle, Vin. Ab. Trespass, Z; Replevin, A. 2 Bl. Com. 193. 3 Ib. 7 4 Ib. 234, 235. Mitten v. Faudrye, Pop. 161; S. C. nom. Millen v. Fawen, Bendl. 171. Mason v. Keeling, 1 Ld. Rayrn. 608

S. C. 12 Mod. 336. Read v. Edwards, 17 C. B. (N. S.) 245. Regina v. Robinson, 8 Cox Crim. Cas. 115. And dogs have always been held by the American courts to be entitled to less legal regard and protection than more harmless and useful domestic animals. Putnam, v. Payne, 13 Johns. 312. Brown v. Carpenter, 26 Verm. 638. Woolf v. Chalker, 31 Conn. 121.

The power of regulating the keeping of these animals, under the penalty of having them summarily destroyed in case of failure to comply with the laws upon the subject, has always been freely exercised by the legislature of Massachusetts, both under the Province Charter, and since the establishment of a state government. In 1715 a provision for the killing of “ unruly and ravenous dogs ” was included in a statute “ for encouraging the killing of wolves.” Prov. St. 2 Geo. I. c. 3; Mass. Prov. Laws, (ed. 1726,) 243. A temporary act passed in 1743 recited that much damage had been done by unruly and mischievous dogs in worrying and killing sheep and lambs on the Island of Nantucket, and declared that thereafter it should be lawful for any person in Nantucket “ to kill any dog or bitch whatsoever that shall at any time be found there,” without being liable to any action; and another act, passed in the following year, with a similar preamble, declared that it should be lawful for any person within the Province (except in the county of York) to kill and destroy any dog or bitch that should be found in any common land, field or inclosure, excepting the land of its owner, in the daytime, or anywhere, between sunset and sunrise, and out of the immediate care and inspection of its owner or keeper, and imposed a penalty on the owner if he refused to kill it after due notice of its being seen out of such care and inspection. Prov. Sts. 17 Geo. II. c. 1; 18 Geo. II. c. 2 ; Mass. Temp. Laws, (ed. 1763,) 30, 34. Both of these temporary acts were continued in force until 1785 by successive statutes, the last of which were passed during the Revolutionary War. Sts. Nov. sess. 1775, c. 5; Nov. sess. 1779, c. 1; Mass. State Laws, 1775-80, pp. 26, 259. And the act utterly prohibiting the keeping of dogs in Nantucket was again extended by Sts. 1791, c. 38, and 1799, c. 69.

The dangers sought to be prevented by the dog laws of the Commonwealth, as declared in the preambles to the earlier ones, are sudden assaults upon persons, worrying,- wounding and killing of neat cattle, sheep and lambs, “ distressing evils from canine madness,” and other injuries occasioned by dogs. These statutes, which have been the subject of repeated consideration and revision by the legislature, with a view of securing these objects, and of affording means for ascertaining the owners and making them liable for the mischievous acts of their dogs, have accordingly not only provided that any person might kill a dog assaulting him, or attacking cattle or sheep, out of its owner’s inclosure; and that the owner should be responsible, in either single, double or treble damages, for mischief committed by his dog; but have also declared that it should be lawful for any person to kill any dog, as to which the requirements of law had not been complied with, under circumstances which have varied in successive statutes. At first, it was only any dog “ found strolling out of the inclosure or immediate care of its owner,” after due notice to him that it was suspected of being dangerous or mischievous; then “not having a collar and certified’to the assessors; and by later statutes, “ any dog found going at large not wearing a collar ;” “ found and being without a collar ; ” “ being without a collar; ” going at large, and not registered in the town clerk’s office, or the tax on which had not been paid; “ going at large and not licensed and collared; ” or, finally, “ all dogs not licensed and collared ” as required by statute, “whenever and wherever found.” For the last ten years the statutes have also declared it to be the duty of certain public officers to cause such dogs to be destroyed under the circumstances pointed out; and have given a remedy against the town or county for any injury done by dogs to other domestic animals. Sts. 1791, c, 38; 1797, c. 53; 1798, c. 54; 1812, c. 146 Rev. Sts. c. 58, §§ 12-17. Sts. 1858, c. 139 ; 1859, c. 225. Gen. Sts. c. 88, §§ 52-66. Sts. 1864, c. 299 ; 1867, c. 130.

These statutes have been administered by the courts accora ing to the fair construction of their terms, and without a doubt of their constitutionality. Under the St. of 1812, c 146, which

required the owner or keeper of any dog to put a collar about its neck, to be constantly worn, with the name and residence of the owner marked thereon, and declared it to be lawful for any person to kill any dog “ found and being without a collar as aforesaid,” (omitting the qualification of other statutes, of u going at large” or “out of the immediate care of its owner,”) it was held that no action could be maintained for killing a dog without such a collar, out of his owner’s inclosure, although under his immediate care; Chief Justice Shaw saying, “ We think it was the intention of the legislature not to give the owner of a dog a right to maintain an action for destroying him, unless he had in fact given that security to the public, which the act required.” Tower v. Tower, 18 Pick. 262. And a person who, instead of killing a dog being without a collar, converted him to his own use, was held liable to the owner in trover, because, in the words of Chief Justice Shaw, “ The object of the statute is, not to confer a benefit on an individual, but to rid society of a nuisance by killing the dog.” Cummings v. Perham, 1 Met. *555. Similar statutes have been held in other states to be reasonable and constitutional regulations of police. Morey v. Brown, 42 N. H. 373. Carter v. Dow,* 16 Wisc. 298.

The statute under which this defendant justifies provides that the mayors of cities and chairmen of selectmen of towns shall within ten days from the first day of July annually “ issue a warrant to one or more police officers or constables, directing them to proceed forthwith either to kill or cause to be killed all dogs within their respective cities or towns, not licensed and collared according to the provisions of this act, and to enter complaint against the owners or keepers thereof; and any person may, and every police officer and constable shall, kill or cause to be killed all such dogs, whenever and wherever found.” St. 1867, c. 130, § 7. The warrant here provided for, being general in its form, not founded on oath, nor containing any special designation of objects, is not indeed a legal warrant of search and seizure; it is rather an appointment of the officer who is to be specially charged with the duty of executing the authority conferred by the statute. The statute makes it the duty of every

police officer and constable to kill or cause to be killed all dogs not licensed and collared according to its provisions, “ whenever and wherever found.” There are no express restrictions of time or place, and no limitation, as in earlier statutes, to dogs going at large, or out of the owner’s inclosure or of his immediate care. Any restrictions upon the authority of the officer arise by implication, from regard to the sanctity of the dwelling-house or the danger of a breach of the peace. But it is unnecessary in the present cases very closely to consider the extent of such restrictions, if any, which are to be implied upon the power and duty of the officer to abate what the law has declared to be in substance and effect a public nuisance. The regulations imposed by the statute upon the ownership and keeping of dogs are reasonable and easy to be complied with. If any dog is an object of value or of affection to its owner, he has only to procure and record a license and put on a collar, in order to bring it under the protection of the law.

It is agreed that neither of these plaintiffs had complied with the statute in these respects, and there is nothing in the facts agreed in either of the cases from which it can be inferred that the defendant committed any trespass upon the plaintiff’s premises or any act tending to a breach of the peace. Under the defendant’s authority and duty to kill or cause to be killed all dogs not licensed and collared, “ whenever and wherever found,” be had clearly a right peaceably to enter for that purpose, without permission, upon the close of the owner or keeper of such a dog and there kill it. In Blair’s case, he did not enter the dwelling-house, or touch the dog until after he had shot and killed it, and then only to carry it back to the place where he first found it. Nor did he enter the dwelling-house in Hutchinson’s case, but only reached his hand into the open .shed in which the dog was tied, and led it out by the rope attached ,o its collar. In Smith’s case, he entered the dwelling-house through the open door, unopposed, and evidently not for the purpose of taking the dog, (for it is agreed that the dog followed him in from without,) but for the lawful purpose of informing the inmates of the duty which he was about to execute, and

exhibiting the evidence of his authority, and no objection was made to his entering the house or taking the dog out again. And in neither case did he separate the collar from the dog. He cannot therefore be held liable either for trespassing on the close, for killing the dog, or for converting the collar to his own use.

The cases cited for the plaintiffs are quite distinguishable from this. Bishop v. Fahay, 15 Gray, 61, in which an officer was held liable for killing a dog taken from a dwelling-house which he had entered without the owner’s leave, arose under the St. of 1858, c. 139, § 1, which only authorized him to kill dogs, not duly registered and collared, and “ going at large.” The St. of 1864, c. 299, § 7, under which the defendant unsuccessfully attempted to justify, in Kerr v. Seaver, 11 Allen, 151, his taking of a dog from the owner’s dwelling-house for the purpose of killing him, was indeed, so far as concerns the provision immediately in question, in the very words of the statute now in force. But the person there held responsible for a trespass in the dwelling-house was a private citizen, who pursued the dog into the house after the plaintiff’s wife had refused to give it up. There is hardly a more ancient or more firmly established rule of the common law, than that a man who enters my house against my will and without authority is a trespasser, though the door ia open. 11 Hem. IV. 75 b. Judgments for the defendant.