Thiele v. City and County of Denver

• Decision Date: 10 June 1957
• Docket Number: No. 17868,17868
• Citation: 312 P.2d 786,135 Colo. 442
• Parties: Henry THIELE, Individually and for and on behalf of all other persons similarly situated, Plaintiff in Error, v. The CITY AND COUNTY OF DENVER, a Municipal Corporation; Walter F. Johnson, as Chief of Police of the City and County of Denver; William P. Shank, as Manager of Safety and Excise of the City and County of Denver; and Dr. Lloyd Florio, as Manager of Health of the City and County of Denver; and Duke W. Dunbar, as Attorney General of Colorado, Defendants in Error.
• Court: Colorado Supreme Court

Page 786

312 P.2d 786

135 Colo. 442

Henry THIELE, Individually and for and on behalf of all other persons similarly situated, Plaintiff in Error, v. The CITY AND COUNTY OF DENVER, a Municipal Corporation Walter F. Johnson, as Chief of Police of the City and County of Denver; William P. Shank, as Manager of Safety and Excise of the City and County of Denver; and Dr. Lloyd Florio, as Manager of Health of the City and County of Denver; and Duke W. Dunbar, as Attorney General of Colorado, Defendants in Error.

No. 17868.

Supreme Court of Colorado, En Banc.

June 10, 1957.

Rehearing Denied July 15, 1957.

Omar Garwood, Donald W. Marshall, Frederick E. Dickerson, Phillip Rossman, George Louis Creamer, Denver, for plaintiff in error.

John C. Banks, City Atty., Horace N. Hawkins, Jr., Deputy City Atty., Denver, for defendants in error.

SUTTON, Justice.

The parties appear here in the same order as in the trial court and we so refer to them or by name.

In a class action plaintiff challenges the validity of and seeks an injunction against enforcement of Councilman's Bill No. 32, Series 1955, Referred Ordinance No. 80, Series 1955, of the City and County of Denver, popularly called the 'Dog Leash Law' or 'Leash Law'. Trial was to the court following which a 'Judgment and Order' dismissing the complaint with costs was entered in favor of defendants. Motion for a new trial was dispensed with.

On writ of error plaintiff urges the following grounds for reversal:

1. That the ordinance is void as violating due process of law, taking property (allegedly in a situation not involving the police power) without notice or a hearing.

2. That the ordinance is procedurally deficient, violating both the Charter and State Constitutional provisions relating to the adoption of measures by referendum and the publication thereof.

3. That enforcement of the ordinance is improperly delegated.

4. That the trial court erred in failing to make findings of fact under Rule 52 Rules of Civil Procedure.

In 1950 the City and County of Denver enacted Ordinance No. 279 entitled 'A Bill for an Ordinance Relating to Dogs: The Vaccination and Registration of Dogs; and a Denver Municipal Dog Pound'. This ordinance became 'Code Section 753 (Ordinance 288, Series 1950)' and provided in part in Sections 8 through 14 for the creation of a dog pound, the impounding of all dogs not bearing proper vaccination tags; notice to owners and a three day impoundment period unless sooner redeemed by owners; payment of a $3.00 fee upon presentation of vaccination proof by the owner or by a buyer after the waiting period; and for the disposition of unclaimed and unsold dogs. The notice provisions reads:

'Sec. 10. Notification of Owner of Impounded Dogs. Upon the impounding of any dog, it shall be the duty of the Manager or his authorized representative to notify the owner from whom the dog was taken, if the owner is known. If the owner is not known, there shall be posted in the Denver Municipal Dog Pound a notice containing a description of the dog impounded.'

It appears that the rabies tag required under this ordinance also serves as a license tag for dogs in the City of Denver.

In 1952 the City adopted Code Section 754 (Ordinance 254, Series 1952) also known as 'Councilman's Bill No. 274, Series 1952' which in part states that it is unlawful to permit any 'vicious dog' to be or run at large. It provides for notice and hearing to dog owners whose animals are in alleged violation thereof. This ordinance appears to have been repealed by implication by the 1955 enactment of the 'Leash Law' which affects all dogs. Plaintiff's allegation of conflict, urged in his argument here, as between these two ordinances, would seem therefore to be without substance. Accordingly, Code Section 754 will not be further considered in this opinion.

The Leash Law title reads:

'A Bill for an Ordinance Amending the Revised Municipal Code by Adding Thereto a New Article 752 Making It Unlawful for Any Person Who Keeps Any Dog to Permit the Same to Run at Large, and Providing for the Impounding and Disposition of Dogs Found Running at Large, Such Amendment to be Operative and Effective July 1, 1955; and Providing for Submission of Such Ordinance at the General Municipal Election to be Held on the Third Tuesday in May, 1955.' Section 1 of this ordinance reads:

'1. It shall be unlawful for any owner, possessor, or person who keeps any dog to permit the same to run at large.'

This ordinance was submitted to, and approved by a vote of the people before becoming effective July 1, 1955. It provides a definition of running at large; delegates to the Chief of Police and his officers the duty of enforcement; provides for impoundment of dogs found running at large without the necessity of filing a complaint and for their disposition in accordance with the provisions of Article 753 of the Code.

The gist of plaintiff's several contentions appears to be that dogs are a form of personal property and though a city may reasonably provide for a leash law, it may not (a) incorporate the penalty by reference and (b) confiscate and destroy such property in the manner provided in Code Section 753 supra.

Though almost human in many ways because of their intelligence and loyalty, and the recognition of such virtues by their human masters as indicated by the love, affection, and occasional bequests and legacies bestowed upon them, nevertheless such attributes do not raise canines to the level occupied by homo sapiens. Thus the constitutional liberties guaranteed citizens are not a fortiori, a privilege extended to the dog world. Even the most soulful eyed canine has rights, privileges and protection only within his master's shadow as provided by law. We accordingly proceed to examine the status of man's best friend as the common, constitutional and statute law have decreed in its behalf.

At common law dogs were recognized as property of an inferior sort which for some purposes entitled them to less regard and protection than property in other animals. 2 Am.Jur. 692-694, Sec. 5-7. The rights of an owner were often spoken of as being 'qualified property rights'. For example, in the absence of statute dogs were not regarded as the subject of larceny, nor were they subject to taxation, though an action would lie for their conversion or injury. The modern trend is to accord to dogs a full property status. 3 C.J.S. Animals § 3 b, p. 1086; also see 3 C.J.S. Animals § 3, Domestic Animals, p. 1085. In Colorado dogs are by statute the subject of larceny. 53 C.R.S. 40-5-3. Statutes and ordinances regulating the running at large of dogs and providing for their summary destruction if in violation thereof, have generally been sustained as a valid exercise of the police power.

Through all the progress in its status, however, and though now accorded a full property status in our state, the original term of 'qualified property rights' in dogs still has a valid standing. The term 'qualified' is used because a dog as property is subject to a different application of the state's police power than most other kinds of personal property. This is due to the nature of dogs and the problems confronting society in how to establish a modus vivendi therewith. All property is held by its owners subject to the inherent police power of the state and cannot be used or held in such a way as to injure others or their property. Though many of Denver's estimated 30,000 to 50,000 dog owners undoubtedly carefully and properly regulate and restrain their animals so that neighbors and citizens generally are not endangered or annoyed thereby, others obviously allow their dogs to roam at will requiring the exercise of the state's power as herein complained of. To our knowledge no one has yet invented a better substitute than a reasonable dog leash law to handle dogs running at large to the danger or annoyance of a city's inhabitants.

We quote with approval the following from Sentell v. New Orleans and Carrollton Railroad Co., 166 U.S. 698, 17 S.Ct. 693, 41 L.Ed. 1169:

'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 with 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...