King v. Arlington County

• Decision Date: 03 May 1954
• Citation: 195 Va. 1084,81 S.E.2d 587
• Court: Virginia Supreme Court
• Parties: MARCUS R. KING v. COUNTY OF ARLINGTON

Page 587

81 S.E.2d 587

195 Va. 1084

MARCUS R. KING v. COUNTY OF ARLINGTON.

Supreme Court of Appeals of Virginia

May 3, 1954.

Betty A. Thompson and Walter J. Newlon, for the plaintiff in error.

William J. Hassan, Peter J. Kostik and David L. Carpenter, for the defendant in error.

JUDGE: EGGLESTON

EGGLESTON, J., delivered the opinion of the court.

Marcus R. King, hereinafter referred to as the defendant, was convicted in the County Court of Arlington county under a warrant which charged that he 'did, on the 18th day of Oct., 1951, in said County knowingly keep on his premises a vicious dog which evidenced on Sept. 26, 1951, a disposition to attack human beings by attacking Ann Marie Wynne, six years old, in violation of a County ordinance.' He appealed to the Circuit Court of Arlington county where he filed a demurrer, alleging in substance that section 7 of the county ordinance under which the warrant was issued was unconstitutional and void in that, (1) the county board had no power to adopt such section, and (2) such section was inconsistent with and contrary to the Constitution and general laws of the State of Virginia and the Constitution of the United States.

The demurrer was overruled but the defendant elected to stand thereon and admitted the allegations of the warrant. Whereupon the trial court found him guilty as charged and imposed a fine. We granted a writ to review that judgment.

The section of the ordinance under which the warrant of arrest was issued reads thus: '7. Vicious dogs -- It shall be unlawful for any person to keep within the County of Arlington any dog which is known to be vicious or which has evidenced a disposition to attack human beings. Any person who shall violate this paragraph shall, upon conviction, be fined not more than $100.00, and each day's keeping of such dog shall constitute a separate offense. Upon conviction of any person for a violation of this section, such dog shall be turned over to the game warden or other officer to be destroyed.'

In a memorandum opinion overruling the demurrer the trial court held that the first two sentences of the section, prohibiting the keeping within the county of a dog 'known to be vicious or which has evidenced a disposition to attack human beings,' and imposing a fine for so doing, were within the county's police power, were not inconsistent with the state law, and were therefore valid, but that the last sentence of the section providing for the destruction of such dog was inconsistent with the state law and invalid. Accordingly, the judgment did not direct that the dog be turned over to the game warden or other officer to be destroyed, as provided in that section of the ordinance.

On this appeal the defendant attacks the validity of the section on these grounds:

(1) Prohibiting the keeping of a vicious dog on an owner's premises is not a valid exercise of the county's police power.

(2) In enacting the 'Dog Laws,' ¹ embraced in Code, §§ 29-183 through 29-213, the State has exercised its police power with respect to the subject, 'has occupied the entire field of regulation and control' of dogs, and withheld from all local governing bodies the power and authority to enact such a section.

(3) Granting that the county has the power to legislate on the subject, the section is nevertheless void because it is 'inconsistent with the state law.'

(4) The third sentence of the section providing for the destruction of the dog, which the trial court held was invalid, is not severable, but 'so permeates the whole' as to vitiate the entire section.

We do not agree with the contention of the defendant that the prohibition against keeping a dog 'which is known to be vicious or which has evidenced a disposition to attack human beings' is not a valid exercise of the county's police power.

We take judicial notice of the fact that Arlington county is a thickly settled urban community with a population of 135,449 according to the 1950 United States census. Shelton v. Sydnor, 126 Va. 625, 638, 102 S.E. 83; Kirkpatrick v. Board of Sup'rs. of Arlington Co., 146 Va. 113, 123-4, 136 S.E. 186.

It is well settled that the regulation of dogs is within the police power of the State and may be delegated to municipalities. 2 Am. Jur., Animals, §§ 31, 32, p. 719. 'The power to regulate is not limited to dogs running at large, but extends to the keeping of dogs.' Id., § 31, p. 719. 'The keeping of dogs in thickly settled municipalities is subject to rigid police regulations, without much regard to rights of the owners in such animals as property.' Id., § 32, p. 719. See also, McQuillin on Municipal Corporations, 3d Ed., Vol. 7, § 24.284, pp. 134-136.

Code, § 15-8(5), empowers the governing bodies of counties 'To adopt such measures as they may deem expedient to secure and promote the health, safety and general welfare of the inhabitants of their respective counties, not inconsistent with the general laws of this State.'

Clearly, we think, the prohibition against keeping a dog 'which is known to be vicious or which has evidenced a disposition to attack human beings,' is within this grant of police power. Hence, the section of the ordinance must be upheld unless it is invalid for some other reason.

But the defendant says that in enacting the 'Dog Laws' (Code, §§ 29-183 to 29-213, both inclusive), the State has exercised its police power with respect to the regulation of dogs throughout the State, has thus occupied the 'entire field,' and that for this reason also the county board had no power to enact section 7 of the ordinance. His argument runs thus: The 'Dog Laws' are complete and comprehensive and cover fully the regulation and control of dogs throughout the State; under their terms every owner of a dog over a specified age is required to obtain a state license therefor and pay only to the State a license tax for such animal; licensed dogs are deemed personal property; unlicensed dogs, mad dogs, and those addicted to killing livestock or poultry may be destroyed in the manner therein provided; while there are specific provisions authorizing the governing bodies of localities to 'prohibit dogs from running at large,' to adopt ordinances for protection against mad dogs, and to prevent the 'running at large of vicious dogs,' there is no specific authorization for the enactment of a local ordinance prohibiting the keeping of a vicious dog on the owner's premises; hence, by necessary implication the legislature has withheld or withdrawn such power from the local governing bodies.

To what extent a local governing body may regulate or control a subject which the State has undertaken to regulate or control is a matter upon which there is a diversity of judicial opinion. See 37 Am. Jur., Municipal Corporations, § 166, p. 791 ff; McQuillin on Municipal Corporations, 3d Ed., Vol. 6, § 23.04, p. 384 ff.

The mere fact that the State, in the exercise of its police power, has made certain regulations with respect to a subject does not prohibit a local legislature from dealing with the subject. Both the State and its local governmental agency may have concurrent jurisdiction over the same subject matter relating to local affairs. 62 C.J.S., Municipal Corporations, § 143, p. 286; 37 Am. Jur., Municipal Corporations, § 165, p. 790.

In Shaw v. City of Norfolk, 167 Va. 346, 349, 189 S.E. 335, 336, we quoted with approval the statement in McQuillin on Municipal Corporations, 2d Ed., Vol. 3, § 923, p. 36, that 'whether the city may exercise control of state offenses must be determined by the legislative intent. And such intent must also decide the manner in which the power is to be exercised, and whether such control is to be exclusive or whether it is to be exercised concurrently with that of the state.' See also, City of Lynchburg v. Dominion Theatres, 175 Va. 35, 40, 7 S.E. (2d) 157, 159, 126 A.L.R. 1358.

While it is true that the 'Dog laws' are comprehensive and provide for the exclusive licensing and taxing of dogs by the State, and for their regulation in many particulars, we do not agree that their purpose and effect were to withhold from the localities the entire field of regulation. The regulations embodied in these state laws are broad in their scope and relate to matters of state-wide concern. Obviously, situations may occur in urban or thickly populated communities which may permit and indeed require further local legislation not inconsistent with the provisions in the state law. Keeping a kennel of dogs, permitted under Code, § 29-192, or allowing foxhounds to run at large, under Code, § 29-212, may be entirely reasonable in a rural area and yet might constitute a nuisance in a city or urban community.

No one would seriously contend that a municipality, in the exercise of its police power, could not prohibit the holding of a field trial, permitted under Code, § 29-210, in the business district of the city.

In State v. Mueller, 220 Wis. 435, 265 N.W. 103, it was held that a state statute requiring the licensing of dogs did not invalidate a city ordinance which prohibited the keeping of more than two dogs over the age of three months within a residential area of the municipality.

Similarly, in Repass v. Town of Richlands, 163 Va. 1112, 178 S.E. 3, we held that the fact that one had been granted a license under a state statute to sell 3.2 beer in the town of Richlands did not deprive the town of the power to prohibit by ordinance the sale of such beverage within 300 feet of a public school.

We are of opinion that the fact that dogs are licensed and regulated to a certain extent under the state laws does not prevent a local governing body from enacting an ordinance, not inconsistent with the state law, prohibiting the keeping within a county of a dog which may endanger the lives of its citizens.

The state law prohibits the keeping of a dog addicted to attacking livestock or poultry (Code, § 29-197), but not one which is addicted to...