Fox v. Mohawk & H.R. Humane Soc.

• Decision Date: 05 February 1901
• Citation: 59 N.E. 353,165 N.Y. 517
• Court: New York Court of Appeals Court of Appeals
• Parties: FOX v. MOHAWK & H. R. HUMANE SOC.

165 N.Y. 517

59 N.E. 353

FOX

v.MOHAWK & H. R. HUMANE SOC.

Court of Appeals of New York.

Feb. 5, 1901.

Appeal from supreme court, appellate division, Third department.

Action by Frederick Fox against the Mohawk & Hudson River Humane Society. From a judgment of the appellate division (48 N. Y. Supp. 625) reversing a judgment for defendant and granting a new trial (46 N. Y. Supp. 232), defendant appeals. Affirmed.

G. B. Wellington, David B. Hill, and John L. Cadwalader, for appellant.

J. S. Frost, for respondent.

CULLEN, J.

This action was brought to restrain the defendant from killing, disposing of, or interfering with the plaintiff's dogs; he having refused to pay the license fee prescribed by chapter 448, Laws 1896, entitled ‘An act for the prevention of cruelty to animals and empowering certain societies for the prevention of cruelty to animals to do certain things.’ The defendant was formed by the consolidation of a society for the prevention of cruelty to children with one for the prevention of cruelty to animals, and was vested with all the powers of each association. Chapter 292, Laws 1894. The defendant in its answer pleaded its corporate organization and its power and authority under the statute of 1896, and upon the trial admitted its intent to seize the plaintiff's dogs for nonpayment of license fees. The sole question involved in the case is the constitutionality of the provisions of this statute. No objection has been made to the mode of procedure adopted, nor to the plaintiff's right to maintain the action, and we shall raise none. The court at special term held the statute valid, and rendered judgment for the defendant. The appellate division reversed the judgment below and granted a new trial, and from the order of reversal the defendant has appealed to this court.

The statute of 1896 provides that every person who owns or harbors dogs within the limits of any city having a specified population, in which there exists or may thereafter exist an incorporated society for the prevention of cruelty to animals, shall procure a yearly license for each animal, and pay the sum of one dollar therefor to such society. Dogs not licensed according to the provisions of the act shall be seized, and, if not redeemed within 48 hours, destroyed or otherwise disposed of, at the discretion of the society. The license fees are to be used by the society towards defraying the cost of carrying out the provisions of the statute and maintaining a shelter for lost, strayed, or homeless animals, ‘and for its own purposes.’ The learned appellate division held this legislation void on two grounds: First, that the direction for the summary destruction or appropriation of the dog without notice to the owner was taking the property of such owner without due process of law; second, that the act assumed to vest in the defendant, a private corporation, the execution of certain police powers of the state, and, in effect, to constitute it a public officer.

We are of opinion that the decision below cannot be upheld on either of these grounds. Under any circumstances, there is but a qualified property in dogs, cats, and similar animals, and in fact there may be said to be no property in them as against the police power of the state. In Sentell v. Railroad Co., 166 U. S. 698, 17 Sup. Ct. 693, 41 L. Ed. 1169, the supreme court of the United States upheld the constitutionality of a statute of the state of Louisiana which provided that no dog should be entitled to the protection of the law unless it should have been placed on the assessment rolls, and that the owner should not recover for injuries done to the dog, in any civil action, beyond the value fixed by him on the assessment roll, which statute was challenged as depriving the owner of property without due process of law, in contravention of the fourteenth amendment of the federal constitution. In the opinion there delivered will be found a review of the common law on the subject of dogs, and of the legislation of the various states and the decisions of the state courts on the same subject. Such legislation and decisions are in substantial harmony. In Blair v. Forehand, 100 Mass. 136, a statute authorizing the summary destruction of dogs not licensed and collard according to the provisions of the statute was held valid and constitutional. It was there said: ‘Dogs have always been held by the American courts to be entitled to less legal regard and protection than more harmless and useful domestic animals.’ In Morewood v. Wakefield, 133 Mass. 240, a statute which authorized any person to kill a dog which had no collar on, even though licensed, was upheld. The decisions in Morey v. Brown, 42 N. H. 373;Tenney v. Lenz, 16 Wis. 566;Mitchell v. Williams, 27 Ind. 62; Ex parte Cooper, 3 Tex. App. 489;Jenkins v. Ballantyne, 8 Utah, 245, 30 Pac. 760,16 L. R. A. 689,-are to the same effect. Nor is the rule in this state different. In Mullaly v. People, 86 N. Y. 365, it was held that dogs are the subject of larceny; the decision proceeding on the ground that the Revised Statutes had changed the common-law rule to the contrary, and recognized dogs as property by providing for their taxation. But the proposition that there is property in a dog as against a wrongdoer is very different from the proposition that an owner has the same right of property in a dog, as against the police power of the state, which he has in useful domestic animals. The same title of the Revised Statutes that directed the taxation of dogs (title 17, c. 20, p. 1) authorized any person to kill a dog so taxed unless the tax was paid within five days after demand (section 6), or any dog which he might see chasing, worrying, or wounding any sheep (section 15). This last provision was but a re-enactment of previous legislation. 1 Rev. Laws, 1813, p. 169, §§ 1, 7. Summary confiscation of this character, without judicial process, would, in the case of domestic animals such as horses, oxen, and the like, even though those animals were trespassing, be unconstitutional (Rockwell v. Nearing, 35 N. Y. 302); but the legislation regarding dogs, though it has stood on the statute books for nearly a century, has never been questioned. Nor, if the statute is not condemned for other reasons, do we think it presents a case of the delegation of governmental power to a private corporation. As unlicensed dogs have been so long subject to destruction by every person, the authority given to the officers or agents of the defendant to kill such dogs is neither greater nor less than that conferred on other citizens.

We think, however, that the statute is unconstitutional so far as it requires the owner of a dog to pay a license fee to the defendant for its own use. In People v. Murray, 149 N. Y. 374, 44 N. E. 146, 32 L. R. A. 344, the question was as to the validity of the liquor tax law, which was assailed as directing an appropriation of public money for local purposes, and as not having been passed by a two-thirds vote of the legislature, as required by section 20, art. 3, of the constitution of the state. The statute was upheld on the ground that the term ‘public money’ was used in this section of the constitution in the narrow, restricted sense of meaning money of the state at large, in contradistinction from moneys raised for local governmental purposes. Judge Andrews, in delivering the opinion in that case, wrote of license fees: ‘In a strict and accurate sense, they were public moneys. No exaction can be lawfully made of a citizen, by way of tax, impost, or excise, except under authority of the legislature; and the product of such imposition is public money.’ The correctness of this doctrine is too clear to be questioned. The appropriation of public money for other than strictly governmental purposes, and its expenditure through other than official channels, have been most carefully limited by article 8 of the constitution. By section 9 it is prescribed: ‘Neither the credit nor the money of the state shall be given or loaned to or in aid of any association, corporation or private undertaking. This section shall not, however, prevent the legislature from making such provision for the education and support of the blind, the deaf and dumb, and juvenile delinquents, as to it may seem proper.’ By section 10: ‘No county, city, town or village shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation. * * * This section shall not prevent such county, city, town or village from making such provision for the aid or support of its poor as may be authorized by law.’ Section 14 provides: ‘Nothing in this constitution contained shall prevent the legislature from making such provision for the education and support of the blind, the deaf and dumb, and juvenile delinquents, as to it may seem proper; or prevent any county, city, town or village from providing for the care, support, maintenance and secular education. of inmates of orphan asylums, homes for dependent pendent children or correctional institutions, whether under public or private control. Payments by counties, cities, towns and villages' for these purposes ‘may be authorized, but shall not be required by the legislature.’ By this comprehensive enumeration of money of the state, of a county, city, town, and villege, it is plain that the constitution meant to include all public moneys which are raised in any manner throughout the state as an exaction from the citizen by the taxing or licensing power of government. Pecuniary penalties for offenses are not imposed under either the taxing or licensing power of the state, and probably would not fall within the constitutional restrictions as to public money. So little vested right of property is there in a penalty that in a civil case it may be taken away by the repeal of the statute at any time before judgment (Cooley, Const. Lim. p. 383; People v. Livingston...