Bland v. People

• Decision Date: 04 April 1904
• Citation: 76 P. 359,32 Colo. 319
• Parties: BLAND v. PEOPLE.
• Court: Colorado Supreme Court

76 P. 359

32 Colo. 319

BLAND v. PEOPLE.

Supreme Court of Colorado

April 4, 1904

Error to District Court, Arapahoe County; Samuel L. Carpenter Judge.

Ernest Bland was convicted of driving, working, and using an unregistered docked horse, and brings error. Affirmed.

Cranston, Pitkin & Moore, for plaintiff in error.

N.C. Miller, Atty. Gen. (J. B. Melville and Henry J. Hershey, of counsel), for the People.

STEELE J.

The information charges that the defendant, on, to wit, May 1 1902, at the county of Arapahoe, Colo., did unlawfully drive work, and use an unregistered docked horse. Section 1 of the statute under which the information is brought is as follows 'It shall be unlawful for any person or persons to dock the tail of any horse, within the state of Colorado, or to procure the same to be docked, or to import or bring into this state, any docked horse, or horses, or to drive, work, use, race or deal in any unregistered docked horse or horses within the state of Colorado.' Section 2 provides that, 'within 90 days after the passage of this act, every owner, or user of any docked horse within the state of Colorado, shall register his or her docked horse, or horses, by filing in the office of the county clerk and recorder of the county in which such docked horse, or horses, may then be kept, a certificate, which certificate shall contain the name, or names of the owner, together with his, or her post office address; a full description of the color, age, size and the use made of such docked horse, or horses; which certificate shall be signed by the owner, or his, or her agent. The county clerk shall number such certificate consecutively and record the same in a book, or register to be kept for that purpose only; and shall receive, as a fee for the recording of such certificates the sum of fifty cents.' Chapter 93, p. 175, Laws 1899.

The defendant sold the horse in question February 19th, and bought him back about the 1st of March, 1902. The horse's tail was docked between the last-mentioned dates, and there is no evidence showing that the defendant docked the horse, or that he had possession of the horse at the time, or was in any way involved in the commission of the offense of docking the horse's tail. No proof was offered that the horse was unregistered, but the court held that as the proof clearly established the fact that the offense of docking the horse's tail was committed some time between February 19th and the first week in March, 1902, no proof of non-registration was necessary. This ruling was correct. The act was approved in April, and became a law in July, 1899, and requires registration within 90 days after the passage of the act. It follows that registration under the act was impossible in this case. The very purpose of the Legislature was to exempt from the operation of the statute those owning docked horses at the time of the passage of the act, and, to secure them such exemption, it was provided that they might, within 90 days from the passage of the act, register their horses. Owners of horses who did not avail themselves of the privilege of registration and those who could not take advantage of the act are guilty of a violation of the statute if they drive, work, use, race, or deal in any unregistered docked horse. Although we hold that proof that the horse was not registered was not required in this case, it does not follow that such proof would not be required in a case where it appeared that the horse was docked while in this state, prior to or within 90 days after the passage of the act.

The defendant contends that the act in question violates the fourteenth amendment to the Constitution of the United States, and section 3, art. 2, of the Constitution, which provide, respectively, that 'no state * * * shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws,' and that 'all persons have certain natural, essential and inalienable rights, among which may be reckoned the right of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness.' It is not asked that the whole act be declared unconstitutional, but that portion only which forbids the driving, working, or using of an unregistered docked horse, registration being impossible.

Concerning the police power of the state, Mr. Justice Miller said in the Slaughterhouse Cases, 16 Wall. 36, 21 L.Ed. 394: 'This power is, and must be, from its very nature, incapable of any very exact definition or limitation. Upon it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property.' And, quoting from an opinion by Chief Justice Redfield, of Vermont, he continues: "It extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the state, * * * and persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state. Of the perfect right of the Legislature to do this no question ever was, or, upon acknowledged general principles, ever can be, made, so far as natural persons are concerned." And this court, in Re Scrip Bill, 23 Colo. 504, 48 P. 512, said: 'While it is difficult to define the boundaries of the police power, it admittedly extends to the protection of the lives, health, and property of the citizens, and to the preservation of good order and the public morals.' And in the case of Waters v. People, 23 Colo. 33, 46 P. 112, 33 L.R.A. 836, 58 Am.St.Rep. 215, it was held that 'the killing of doves as they are released from a trap, merely to improve skill in marksmanship, or for sport and amusement, though without specific intent to inflict pain or torture, is within the inhibition of the statute, and punishable.' In the course of the opinion it was said: 'It is of common knowledge that within the past few years, as incident to the progress of civilization, and as the direct outgrowth of that tender solicitude for the brute creation which keeps pace with man's increased knowledge of their life and habits, laws such as the one under consideration have been enacted by the various states, having the common object of protecting these dumb creatures from ill treatment by man. Their aim is not only to protect these animals, but to conserve the public morals, both of which are undoubtedly subject of legislation.'

The docking of a horse's tail is cruelty, not only because of the torture inflicted by the operation, but because, by depriving the horse of the use of his tail, he is deprived of the use of a weapon supplied him by nature for his portection from the myriads of winged pests that infest the land. Counsel insist that the question of cruelty is not involved, and that, assuming that the Legislature has full power to prohibit docking, it has not the power to prohibit the use of the horse after his tail has been docked, and, conceding that the use of property may be taken away for the public good, without compensation to the owner, that the prohibition of the right to drive, work, and use an unregistered horse does not tend to the protection of the health, comfort, or good morals of the community, and is not, therefore, a valid exercise of the police power. They say that, as the act itself is silent upon the subject of the purpose of the Legislature in prohibiting the use of docked horses, unless we can clearly perceive from the terms of the act that the thing prohibited necessarily affects the public morals we should not sustain it; that the sight of docked horses does not call to mind the process by which the tail was obliterated;that there is no difference in appearance between a registered and an unregistered docked horse; and that a docked horse is not an unsightly object. That whether the statute can or cannot be justified as an exercise of the police power is a judicial, and not a legislative, question. It belongs to the legislative department to exert the police power of the state, and to determine primarily what measures are appropriate and needful for the protection of the public morals, the public health, or the public safety. Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205. 'The public interests imperatively demand that legislative enactments should be recognized and enforced by the courts, as embodying the will of the people, unless they are plainly and palpably, beyond all question, in violation of the fundamental law of the Constitution.' Atkin v. Kansas, 24 S.Ct. 124, 48 L.Ed. 148.

It is said that the police power of the state is founded largely upon the maxim, 'Use your property in such manner as not to injure that of another'; and counsel insist that the driving of an unregistered docked horse injures no one, and that, as the police power is founded upon the maxim stated, unless the use of an unregistered docked horse can be shown to be injurious to others, the statute cannot be sustained as a valid exercise of the police power. 'The welfare of the people is the supreme law,' is a maxim of the law, and it is upon these two maxims that the police power of the state is largely based. In the exercise of the police power the Legislature has a large discretion, and it is our duty to sustain such legislation unless it is clearly and palpably and beyond all question in violation of the Constitution.

The fact that the Legislature has failed to state that the use of an unregistered docked horse is, in its opinion, contrary to the public morals, does not preclude us from sustaining...