City of Hagerstown v. Witmer

• Decision Date: 23 June 1897
• Citation: 37 A. 965,86 Md. 293
• Parties: MAYOR, ETC., OF HAGERSTOWN ET AL. v. WITMER ET AL.
• Court: Maryland Court of Appeals

37 A. 965

86 Md. 293

MAYOR, ETC., OF HAGERSTOWN ET AL. v. WITMER ET AL.

Court of Appeals of Maryland

June 23, 1897

Appeal from circuit court, Washington county.

Injunction by Frank Witmer and others against the mayor and council of Hagerstown and others. From judgment for plaintiffs defendants appeal. Reversed.

Argued before McSHERRY, C.J., and BRYAN, FOWLER, BRISCOE, ROBERTS and BOYD, JJ.

A. C Strite, for appellants.

W. J Witzenbacker and J. Marbourg Keedy, for appellees.

BOYD J.

The appellees filed a bill against the appellants to restrain and enjoin them "from doing or performing any act or acts contemplated to be by them done or performed" by an ordinance entitled "An ordinance regulating the running at large, catching, impounding and killing dogs within the corporate limits of Hagerstown." The object of the proceeding is to test the validity of the ordinance, and therefore we need not stop to discuss any technical objections that might be urged to the form of the bill, or other pleadings, especially as the only point suggested has been remedied by an agreement filed in this court to correct an omission from the record. The ordinance, after enacting that dogs shall not be permitted to run at large within the corporate limits of Hagerstown, provides for the appointment of not more than three persons to "seize and kill, subject to the subsequent provisions of this ordinance, all dogs running at large within the corporate limits of the city of Hagerstown. All dogs so seized by them shall be detained in a suitable place, to be provided by him or them, for a period of twenty-four hours. They shall notify every owner of any dog who has a collar upon his dog's neck with the owner's name engraven thereon of such seizure that the same may be ransomed upon the payment of the fees hereinafter specified." It is further enacted by section 3 "that any owner of any dog seized under the provisions of this ordinance may redeem the same upon the payment to the person so seizing and impounding said dog the sum of one dollar. All dogs not redeemed shall be killed as hereinafter required," and by section 5 "that it shall be the duty of every man appointed to seize dogs under the provisions of this ordinance to kill all dogs not ransomed at 10 a. m. of the morning of the day after they shall have been detained twenty-four hours, in the most humane manner possible." The charter of Hagerstown contains no express provision prohibiting dogs from running at large. The only reference made to them is a power "to levy a tax and impose a license on dogs." It does, however, vest the mayor and council with power "to pass all ordinances necessary for the good government of the town; to prevent, remove, and abate all nuisances or obstructions in or upon the streets," etc. And, after enumerating the above and other powers, section 171 of article 22 of the Local Code, which includes this charter, provides that "for the purpose of carrying out the foregoing powers, and for the preservation of the cleanliness, health, peace and good order of the community, and for the protection of the lives and property of the citizens, and to suppress, abate or discontinue, or cause to be suppressed, abated or discontinued, all nuisances within the corporate and sanitary limits of said town,--they may pass all ordinances or by-laws from time to time necessary." To insure the observance of such ordinances, it authorizes the imposition of fines, and imprisonment in default of the payment of fines imposed. If dogs by running at large had become nuisances, or offended any of the other provisions of the charter quoted above, it would seem clear that the mayor and council could adopt reasonable measures to abate the nuisance or remedy the evil, although there is no express provision in the charter prohibiting them from running at large. We held in Cochrane v. Frostburg, 81 Md. 54, 31 A. 703, that the mayor and city council of Frostburg had power to prevent cattle from running at large under the general authority to pass ordinances to remove nuisances from the streets, and to ordain and enforce all ordinances, rules, and regulations necessary for the peace, good order, health, and safety of the town, and of the people and property therein. That being so with reference to such animals as cows, it would seem to be equally clear that, under such powers as the mayor and council of Hagerstown have, dogs can be prohibited from running at large on the streets and alleys of the city.

It was said by the learned judge who decided the case below that "I am not to be understood as deciding that the municipal authorities have not the power to provide for the impounding of all dogs or other animals running at large upon the streets, for the killing of such as have no owners, and for the removal and suppression of those having owners from the streets and highways of the town;" but he was of the opinion that the ordinance was void, because it did not provide for notice to the owners of the dogs taken under its provisions. It seems to us that when it is determined, as we do, that the power was vested in the mayor and council to prevent dogs from running at large, and to enforce it by impounding them, the case is practically determined in favor of the city. It is true that dogs are now generally recognized as property. At common law civil actions could always be maintained for their recovery, although they were not regarded as the subjects of larceny. But they are of a qualified kind of property, and such as is peculiarly the subject of police regulations. They have never ranked with such domestic animals as horses, cattle, and sheep, in which the owner has an unqualified and complete property. Various reasons have been assigned for the distinction, among which are that dogs are not used for food,...