Demers v. Adamson, 72

• Citation: 102 R.I. 453,231 A.2d 484
• Decision Date: 10 July 1967
• Docket Number: No. 72,72
• Parties: Stanwood A. DEMERS v. Merrill F. ADAMSON et al., Members of the Town Council of West Greenwich. Appeal
• Court: United States State Supreme Court of Rhode Island

Page 484

231 A.2d 484

102 R.I. 453

Stanwood A. DEMERS v. Merrill F. ADAMSON et al., Members of the Town Council of West Greenwich.

Appeal No. 72.

Supreme Court of Rhode Island.

July 10, 1967.

[102 R.I. 457] Stanwood A. Demers, pro se.

A. Earl Shaw, Jr., Town Sol., Providence, for defendants.

OPINION

ROBERTS, Chief Justice.

This is a civil action for the issuance by the superior court of a writ of mandamus directing the defendant town council to revoke a license for the operation of a dog kennel in the town of West Greenwich. The defendants' motion to dismiss for failure to state a claim upon which relief could be granted was heard by a justice of the superior court and was granted. From that decision the plaintiff has prosecuted an appeal to this court.

It appears from the bill of complaint that plaintiff is a resident of the town of West Greenwich and that his home is located in close proximity to premises upon which a dog kennel is maintained under a license issued therefor by the town clerk on April 1, 1966. Such kennels are required by statute to be licensed, G.L. 1956, § 4-13-10, when proper application therefor is made and the licensing authority shall deem the kennel or its operation at a designated location will not constitute a public nuisance.

In support of his petition for a writ of mandamus, plaintiff now urges, as we understand him, that the license is invalid, first, because the licensing authority failed to make a determination as to whether the proposed kennel would constitute a public nuisance and, secondly, because the town council had failed to establish any criteria for making a determination as to the public nuisance by the licensing authority.

City and town councils are authorized to make such provisions concerning dogs in their respective cities and towns as they shall deem expedient in § 4-13-1. Provision is made for the licensing of dogs in the various cities and towns in § 4-13-5, and in § 4-13-8, as amended, it is provided expressly: 'Except as otherwise provided specifically by law, the town clerk shall issue the license and receive the money therefor * * *.' There is nothing contained in the instant record suggesting that the town council has by ordinance provided that any person other than the town clerk shall have authority to issue a kennel license, and, therefore, we conclude that the town clerk is the proper licensing authority under the statute.

The license, we indicated, was issued under the provisions of § 4-13-10, which provides that thoroughbred dogs kept for breeding and stud purposes only shall not be subject to the provisions of the statute requiring licensing. The statute does provide that such dogs shall be kept in a breeding kennel licensed in accordance with the provisions of said § 4-13-10 and only allowed at large in the charge of the owner or keeper of such kennel. It then provides expressly: 'Every owner or keeper of such dogs may make application to the town or city clerk or board of police commissioners or chief of police granting the dog licenses in the town or city in which such kennel is proposed to be located for what shall be known as a kennel license. Such application and keeper of such kennel, the proposed location of the same, and the number of dogs to be kept therein; and that the same are to be kept for breeding and stud purposes only; and thereupon if such town or only; and thereupon if such town or city clerk or board of police commissioners or chief of police shall deem that such kennel and the use and operation thereof at such location would not constitute a public...