Commonwealth v. Higgins

• Decision Date: 02 December 1931
• Parties: COMMONWEALTH v. HIGGINS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

277 Mass. 191

178 N.E. 536

COMMONWEALTH

v.HIGGINS.

Supreme Judicial Court of Massachusetts, Worcester.

Dec. 2, 1931.

Report from Superior Court, Worcester County; Butterworth, Judge.

Joseph H. Higgins was found guilty of violating a statute respecting the trapping of animals, and the case is in the Supreme Judicial Court on report.

Verdict to stand.E. G. Norman, Dist. Atty., of Worcester, for the Commonwealth.

G. C. Sweeney, of Gardner, for defendant.

RUGG, C. J.

The single question presented on this report is whether section 59A, inserted in G. L. c. 131, by St. 1930, c. 428, is constitutional or whether it violates article 1 of the Declaration of Rights of the Constitution, namely, the right ‘of acquiring, possessing, and protecting property.’ Said section 59A was an initiative measure approved by the voters at the State election of 1930 and printed on page 4 of the Acts and Resolves of 1931. It is now section 105A of G. L. c. 131, by virtue of St. 1931, c. 426, § 242. Its words are: ‘Whoever uses, sets or maintains any trap or other device for the capture of furbearing animals which is likely to cause continued suffering to an animal caught therein, and which is not designed to kill such animal at once or to take it alive unhurt, shall be fined fifty dollars for each offense; but this section shall not apply to traps or other devices for protection against vermin if set or maintained not more than fifty yards from any building or cultivated plot of land to the use of which the presence of vermin may be detrimental.’ The defendant was charged in six counts with violation of said section, but by the jury was acquitted on three and found guilty on three. There was evidence tending to show that the defendant, a farmer, set steel traps, one in the midst of a plowed field, another at the intersection of two stone walls, and a third within an area over which in summer he allowed his chickens to roam. The traps were set in February, when the chickens were not roaming outside the henhouse. These traps, although within fifty yards of cultivated land, were not set for the purpose of protecting that land and were about thirty rods from the building where the chickens were housed. The traps were set in these positions to catch foxes which had been doing, and were likely again to do, damage to the defendant's chickens, and were in the only positions practicable to catch so wary an animal as the fox. The defendant, a trapper of experience, testified that fifty yards from a building was an unreasonable limit within which to trap a fox doing damage to poultry. These traps were of the common steel type, designed to pinch an animal and thus prevent his escape, and were likely to cause continued suffering to an animal caught therein and were not designed to kill such animal at once or to take it alive unhurt. There was uncontradicted evidence that no practical trap is known, designed to kill an animal at once or to take it alive unhurt, which is not likely to cause continued suffering to an animal caught therein. Thus there was evidence of violation of the statute by the defendant.

The circumstance that the statute here assailed became operative as an initiative measure approved by the voters at an election gives it no superior position over statutes enacted by the General Court with respect to inquiry as to its constitutionality. It is provided in article 48 of the Amendments to the Constitution, whereby the Initiative and Referendum were established, that ‘The limitations on the legislative power of the general court in the constitution shall extend to the legislative power of the people as exercised hereunder.’ Article 48, ‘The Initiative,’ part 2, § 2. Thus it is made plain that all such legislation, in order to be valid, must bear the test of conformity to the Constitution to the same extent as must statutes enacted by the General Court. Statutes coming into being under said article 48 enjoy the same presumptions in their favor as do statutes enacted in the usual way. All rational presumptions are made that a statute enacted by the General Court is valid. The court will not refuse to enforce it unless its conflict with the Constitution is established beyond reasonable doubt. It will not be treated as void unless it is impossible by reasonable construction to interpret its provisions in harmony with the fundamental law of the Commonwealth. Perkins v. Westwood, 226 Mass. 268, 271, 115 N. E. 411;Commonwealth v. S. S. Kresge Co., 267 Mass. 145, 148, 166 N. E. 558. On principle all these presumptions must be indulged with respect to statutes established under the initiative amendment. The question presented here, as in other cases of this nature, is not one of expediency or wisdom, but of constitutional power.

The statute here assailed is aimed at suppression of the cruelty engendered by capturing the designated animals in traps of such nature as cause them pain and suffering for any appreciable length of time. There are numerous statutes indicative of a policy on the part of the Commonwealth against causing unnecessary suffering to animals. G. L. c. 131, §§ 58, 59; c. 272, §§ 77, 82, 84, 86, 87, 88. This statute was enacted in the exercise of the police power. It has become elementary in constitutional law that the ‘natural, essential, and unalienable rights' of all men to acquire, possess, and protect property are subject to reasonable regulation in the interest of the public health, the public safety, and the public morals. Commonwealth v. Strauss, 191 Mass. 545, 550, 78 N. E. 136;Loring v. Commissioner of Public Works, 264 Mass. 460, 465, 466, 163 N. E. 82. A statute penalizing cruelty to animals was upheld...