Fox v. Mohawk & Hudson River Humane Society

Chase, J. Although the Constitution of the United States and the Constitution of the state of Mew York provide that a person shall not be deprived of his property without due process of law, and that private property shall not be taken for public use without just compensation, yet all the states of the Union recognize and exercise a certain power known as the police power of the state, to preserve and promote public safety and welfare. Police power- is exercised by the legislature of the several states, and the legislature • determines when the public safety and welfare requires its exercise. Unless the' legislature, under pretense, that it is essential to the public safety and welfare, arbitrarily exercises such police power the courts will not interfere with or restrain the carrying out of the provisions of such statutes. The first question for determination in this case is whether chapter 448 of the Laws of 1896 is a proper exercise of the police power of this state. In this state dogs are recognized as property, and an action will lie for their conversion or injury. At common law the crime of larceny could not be committed by feloniously taking and carrying away a dog. Mullaly v. People, 86 N. Y. 365. The United States Supreme Court very recently' decided the case of Sentell v. New Orleans & Carrollton Railroad Company, — 465 — 17 Sup. Ct. Rep. 693, being an action to recover for injuries to a dog in the state of Louisiana. The opinion of Mr. Justice Brown in discussing the nature of dogs and the right of the several states to pass statutes relating to dogs is so complete and accords so fully with my own views on the subjects discussed, that I quote from the same at length: “ The very fact that they are without the protection of the criminal laws shows that property in dogs is of an imperfect or qualified nature, and that they stand, as it were, between animals ferae naturae, in which, until killed or subdued, there is no property, and domestic animals, in which the right of property is perfect and complete. They are not considered as being upon the same plane with horses, cattle, sheep, and other domesticated animals, but rather in the category of cats, monkeys, parrots, singing birds, and similar animals kept for pleasure, curiosity or caprice. They have no intrinsic value, by which we understand a value common to all dogs as such, and independent of the particular breed or individual. Unlike other domestic animals, they are useful neither as beasts of burden, for draught (except to a limited extent), nor for food. They are peculiar in the fact that they differ among themselves more widely than any other class of animals, and can hardly be said to have a characteristic common to the entire race. While the higher breeds rank among the noblest representatives of the animal kingdom, and are justly esteemed for their intelligence, sagacity, fidelity, watchfulness, affection, and above all, for their natural companionship with man, others are afflicted Avith such serious infirmities of temper as' to be little better than a public nuisance. All are more or less subject to attacks of hydrophobic madness. “As it is practically impossible by statute to distinguish between the different breeds, or between the valuable and the worthless, such legislation as has been enacted upon the subject, though nominally including the whole canine race, is really directed-against the latter class and is based upon the theory that the owner of a really valuable dog will feel sufficient interest in him to comply with any reasonable regulation designed to dlstingrnsh him from the common herd. Acting upon the principle that there is but a qualified property in them, and that, while private interests require that the valuable ones shall be protected, public interests demand that the worthless shall be exterminated, they have, from time immemorial, been considered as holding their lives at the will — 466 — of the legislature and properly falling within the police powers of the several states. See cases cited in opinion. * * * Even if it were assumed that dogs are property in the fullest sense of the word, they would still be* subject to the police power of the state, and might be destroyed or' otherwise dealt with,' as in the judgment of the .legislature is necessary for the protection of its citizens. That a state, in a bona fide exercise of its police power, may interfere with private property, and even order its destruction, is as well settled as any legislative power can be which has for its objects the welfare and comfort of the citizen. See cases cited in opinion. * * * Although dogs are ordinarily harmless they preserve some of their hereditary wolfish instincts, which occasionally break forth in the destruction of sheep and other helpless animals. Others, too small to attack these animals, are simply vicious, noisy and pestilent. As their depredations are often committed at night, it is usually impossible to identify the dog or to fix the liability upon- the owner, who, moreover, is likely to be pecuniarily irresponsible. In short, the damages are usually such as are beyond the reach of judicial process, and legislation of a drastic nature is necessary to protect persons 'and property from destruction and annoyance. Such legislation is clearly within the police power of the state. It ordinarily takes the form of a license tax, and the identification of the dog by a collar and tag upon which the name of the owner is sometimes required to be engraved, but other remedies are not uncommon. * * * .” As early as 1789 the legislature of this state passed an act taxing dogs and providing that any person might kill'a dog when found chasing sheep. From 1789 down to this time statutes have been passed from time to time relating to dogs and providing that dogs should be taxed, and also providing that dogs should be killed without notice to the owner when found chasing sheep, and at other times as provided in-the different acts. See chapter 22, Laws of 1789, and various other laws, from time to time, including the present “.County Law.” These statutes have been generally acquiesced in as a proper exercise of the .police power of the state, and such exercise of power for more than 100 years is strong argument in favor of the right of the legislature to exercise such power without violating the Constitution. If the first' contention of the plaintiffs is right, it would require the courts to hold that the legislation referred to, and which has been acquiesced in during our entire history as a — 467 — state, is unconstitutional and void. I cannot so hold. The right of the state in the interest of public safety* and welfare to destroy property of trifling or little value, has been frequently recognized by our courts. The person whose property is destroyed is, in the theory of the law, compensated by sharing in the general benefits which the destruction is calculated to secure. Health Department v. Rector, etc., 145 N. Y. 32; Lawton v. Steele, 119 id. 226; People v. West, 106 id. 293; People v. Havnor, 149 id. 195. The purpose of the act is not to secure a revenue but to prevent the running at large of ownerless dogs which have no provision made for their support and which may become dangerous to the public by reason of them not having proper care and attention. The evidence shows that there are a large number, of dogs on the public streets of the cities of this state that are or may become dangerous to. human life. Payment of a license fee and the purchase of a tag as provided by the act is a condition precedent to the right to own or harbor a dog. In the absence of a compliance with this condition the dog is liable to be "seized and, after a certain interval of time, destroyed as provided-by the act. Ho provision whatever is made in the act for the collection of the license fee. Where the general purpose of the act is not the raising of a revenue but the regulation of a business or the restriction of the right to keep an animal that may become dangerous to the public and no provision is made for the enforcement of the collection of the licénse fee, but simply prohibiting the conduct of such business or the keeping of such animal unless the license fee is paid, the amount so to be paid is not a tax and is not governed by the provisions of the Constitution of the state relating to the imposition of. taxes. Trustees of Exempt Firemen’s Fund v. Roome, 93 N. Y. 313; People ex rel. Einsfeld v. Murray, 149 id. 367; People v. Fire Association of Philadelphia, 92 id. 311. Societies for the prevention of cruelty to animals or children are recognized in the general statutes of this state. They exercise certain public duties, and the service they perform is in part a public service. The officers and agents of all duly incorporated societies for the prevention of cruelty to animals or children are declared to be peace officers within the provisions of section 154 of the Code of Criminal Procedure. Penal Code, § 668. Any agent or officer of any such society may arrest without warrant and bring before the court or magistrate having jurisdiction any — 468 — person offending against .any .of the provisions of title 16. of the Penal Code. Any person who shall interfere with or obstruct any such officer or agent in the discharge of his duties is guilty of a misdemeanor. Penal Code, § 668. The right of the legislature to devote license fees to the benefit'of a society having public duties and which can be properly described as a subordinate governmental agency has been recently upheld by our Court of Appeals. Trustees of Exempt Firemen’s Fund v. Roome, 93 N. Y. 313. See Board of Underwriters v. Whipple & Co., 2 App. Div. 361. Section 2 of article 12 of the Constitution provides: “All cities are classified according to the latest state enumeration* as from time to time made, as follows: The first class includes all cities having a population of two' hundred and fifty thousand or more; the second class, all cities having a population of fifty thousand and less than two hundred and fifty thousand; the third class all other cities. Laws. relating to the property, affairs of government of cities, and the several departments thereof are divided into general and special city laws; general city laws are those which relate to all cities of one or more classes; special city laws are those which relate to' a single city or to less than all the cities of a class. Special city laws shall not be passed except in conformity with the provisions of this section. * * • The act under consideration .embraces all cities of the second class and part of the cities of the first and third class. It does not relate to a single city or to less than all the cities of a class. It is neither a general or special city law for the reason that it does not relate to the property, affairs of government of cities or of the several departments thereof. People ex rel. Hobach v. Sheriff, 13 Misc. Rep. 587; People ex rel. Einsfeld v. Murray, 149 N. Y. 367; People v. Havnor, 149 id. 195. Article 3, section 16 of the State Constitution provides: “Ho private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in-the title.” • The Court of Appeals, in construing chapter 554 of the Laws of 1881, relating to all incorporated cities containing 100,000 inhabitants or upwards, uses this language: “A law relating to particular persons or things as a class was said to be general; while one relating to particular persons or things of a class was deemed — 469 — local and private. The act of 1881 relates to a class, and applies to it as such, and not to the selected or particular elements of which it is composed. The class consists of every county in the state having within its boundaries a city of 100,000 inhabitants, and territory beyond the city, limits mapped into streets and avenues. How many such counties there are now, or may be in the future we do not know, and it is not material that we should. Whether many or few, the law operates upon them all alike and reaches them, not by a separate selection of one or more, but through the general class of which they are individual elements'. The force of the law of 1881 is not localized in Kings county and confined to its territory. By its terms it applies equally to every other county which may prove to be within the constituted class.” In the Matter of Church, 92 N. Y. 1, again the Court of Appeals, construing chapter 449 of the Laws of 1885, relating to all cities containing more than 500,000 inhabitants, uses this language: “ Neither is the act a local or private one within the meaning of the section referred to. Such was the decision of this court in the Matter of the N. Y. El. R. R. Co., 70 N. Y. 327, and in the Matter of Church, 92 id. 1. This act is general in its terms, applying to all cities in the state, of a certain class and to every corporation, carrying on a business requiring the use of electrical wires or conductors in snch cities. That the number of such cities is limited or restricted does not make the bill a private or local one, within the constitutional meaning and intent of these words, was expressly decided in the cases referred to.People ex rel. N. Y. Elec. Lines Co. v. Squire, 107 N. Y. 593. The act under consideration is general in its nature. It relates to particular cities as a class. It does not relate alone to people residing in cities having a population of more than 20,000, and less than 800,000, except in the. city of Buffalo'. It relates to all people generally owning or harboring dogs in specified cities as a class. The exception of the city of Buffalo does not affect the character of the act. People v. Havnor, 149 N. Y. 195; People ex rel. Hobach v. Sheriff, 13 Misc. Rep. 587; People ex rel. Clauson v. Plank Road Co., 86 N. Y. 1. All the objections raised to the act by the plaintiffs have, in my judgment, been substantially passed upon by the courts in this state adversely to the claim of the plaintiffs. The complaint of . the plaintiff in each case is dismissed, with costs. Complaint dismissed, with costs.