Massachusetts Soc. for Prevention of Cruelty to Animals v. Commissioner of Public Health

• Decision Date: 15 May 1959
• Citation: 339 Mass. 216,158 N.E.2d 487
• Parties: MASSACHUSETTS SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS and another, v. COMMISSIONER OF PUBLIC HEALTH. and others. Paul H. RICE and others v. COMMISSIONER OF PUBLIC HEALTH. Eric H. HANSEN and others v. COMMISSIONER OF PUBLIC HEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 487

158 N.E.2d 487

339 Mass. 216

MASSACHUSETTS SOCIETY FOR THE PREVENTION OF CRUELTY TO

ANIMALS and another, v. COMMISSIONER OF PUBLIC HEALTH. and others.

Paul H. RICE and others v. COMMISSIONER OF PUBLIC HEALTH.

Eric H. HANSEN and others v. COMMISSIONER OF PUBLIC HEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 1, 1958.

Decided May 15, 1959.

William B. Trafford and Edward G. Fischer, Boston, for petitioners Massachusetts Soc. for Prevention of Cruelty to animals and others.

Brooks Potter and Gordon K. Bell, Boston, for petitioner Animal Rescue League.

Warren F. Farr and James Vorenberg, Boston, for respondents President and Fellows of Harvard College and others.

Joseph H. Elcock, Jr., Asst. Atty. Gen., Dorice S. Grace and Hugh Morton, Asst. Attys. Gen., for respondent Commissioner of Public Health.

Before WILKINS, C. J., and RONAN, WILLIAMS, COUNIHAN and WHITTEMORE, JJ.

WHITTEMORE, Justice.

These cases are brought to test the constitutionality of St.1957, c. 298, which by § 1 inserted G.L. c. 49A. Massachusetts Society for the Prevention of Cruelty to Animals (the Society) and Animal Rescue League of Boston (the League), Massachusetts charitable corporations, have brought a bill in equity against the commissioner of public health (the commissioner) and three educational institutions which have applied for licenses under the statute, to enjoin the enforcement of the statute. Paul H. Rice and twenty-three other taxable inhabitants, not more than six from any one county, have petitioned under G.L. c. 29, § 63, to restrain the expenditure of money or the incurring of obligations for the purposes of or under the purported authority of the statute. Eric H. Hansen and ten other citizens have asked a writ of mandamus directing the commissioner to refrain from action under the statute. Each of the cases is here on reservation and report by a single justice of this court on the admitted allegations and the facts stipulated in the equity proceedings.

The standing of the plaintiffs and the petitioners (hereinafter, the petitioners) in any case is not questioned, and we do not pause to examine such issues. See As to the equity suit, Wilbur v. City of Newton, 302 Mass. 38, 18 N.E.2d 365; Luscomb v. Bowker, 334 Mass. 468, 475-476, 136 N.E.2d 192. As to the taxpayers' suit Sears v. Treasurer & Receiver Gen., 327 Mass. 310, 317-320, 98 N.E.2d 621. As to mandamus, Brewster v. Sherman, 195 Mass. 222, 224, 80 N.E. 821; Sears v. Treasurer & Receiver Gen., supra, 327 Mass. 315-317, 98 N.E.2d 626; compare Kaplan v. Bowker, 333 Mass. 455, 459-460, 131 N.E.2d 372.

Statute 1957, c. 298 (the statute), is entitled 'An Act authorizing certain licensed institutions to obtain lost and strayed animals from animal pounds for the purpose of scientific investigation, experiment or instruction.' It authorizes an institution, as defined, to obtain from the commissioner a license to obtain impounded animals from animal pounds, as defined, for the purpose of scientific investigation, experiment or instruction or for the testing of drugs or medicines. An animal pound is required to deliver to a licensee upon its application from its available impounded animals such number and kinds of animals as the licensee shall specify, and if application is made for a greater number of animals than the pound has available, the pound must thereafter withhold from execution and deliver the requisitioned animals as they become available. No animal shall be available for delivery unless it has been impounded for ten days and has not been claimed and redeemed by its owner or by any individual who personally desires it as a pet. No animal may be delivered which has been delivered to the pound by its owner with a signed request for its immediate execution. A licensee shall at its own expense return to the pound any animal identified, claimed and redeemed by its owner, but the licensee shall not be liable to the owner for any injury to or illness or subsequent death of any such animal. The licensee is required to pay to the pound such reasonable fee as the commissioner may establish to reimburse the pound for the prior care of any requisitioned animal. Licenses may be revoked by the commissioner if the licensee violates the statute or rules or regulations under it or if the standards, facilities, practices, or activities of the licensee are such that the continued exercise of rights under the license would not be in the public interest. Duly authorized representatives of the Society and the League are given the right to inspect the standards, facilities, practices or activities in connection with the use of animals by any licensee and also to have notice of and be present at hearings for the issuance and revocation of licenses. The commissioner may, subject to appropriation, incur such expenses as may be necessary to enable him to do what the statute requires of him. The statute by § 2 inserts in G.L. c. 140 a new section (141A) which makes inapplicable to licensed institutions the sections of c. 140 (§§ 137-141, inclusive) in respect of licensing of dogs, kennel licenses and inspections, notices required of persons becoming owners or keepers of dogs, and penalties for keeping unlicensed dogs. The statute by § 3 amends § 151A of c. 140 so that the obligation of dog officers to kill unlicensed dogs caught and confined by them is made subject to the requirement of delivery thereof to a licensed institution under the statute, and the holding period is extended from six to ten days.

The preamble of the statute asserts the needs of public health and safety and that properly conducted scientific experiments on animals are necessary for the welfare of mankind. The statute became effective April 18, 1957. Licenses have been issued but the licensees have agreed not to seek animals under them until specifically authorized by the commissioner. No authorizations have so far been given.

Regulations have been promulgated by the department of public health under the statute. They establish a fee of $3 to be paid to the pound for each dog and of $1.50 for each cat, received by the licensee from the pound, and they make careful provision for the humane treatment of animals in the custody of the licensees including the use of anesthetics during operative procedures.

Both the Society and the League (the societies) own and maintain animal hospitals and shelters in various places in the Commonwealth. Each hospitalizes and shelters lost or strayed dogs and cats whose owners are unknown to them. These are classified as to source as follows: (a) dogs picked up by the League under a contract (see G.L. c. 140, § 151) by which it acts as dog officer for the city of Boston, (b) dogs placed in the care of the societies by municipal dog officers, (c) dogs picked up, or dogs delivered by finders other than dog officers, and (d) cats picked up or cats delivered by finders. The dogs received by the Society in category (c) are in number about ten times those received in category (b) For the League the proportion is about two to one. The societies learn of the existence of dogs and cats, in categories (c) and (d), upon telephone or other notice from private persons or from dog officers or other municipal officers, or upon delivery thereof.

The societies dispose of lost and strayed dogs and cats as follows: Those which in the opinion of a veterinarian are so old, diseased or injured that their continued existence entails needless suffering or of such disposition that they would menace public safety if at large are painlessly destroyed without reference to a holding period; those whose owners can be located within the holding period are delivered thereto; and those suitable for pets whose owners are not found are delivered to suitable substitute keepers if found within the holding period. Subject to the foregoing, dogs at the expiration of ten days and cats at the expiration of two days are painlessly destroyed, except that a substantial number of animals deemed to be exceptionally suitable for return to owners or as pets for new keepers are kept for some additional period, up to approximately two weeks in the case of dogs and one week in the case of cats. The regulations provide that a humane society may hold an animal for not more than thirty days beyond the ten day statutory period notwithstanding a requisition if 'it believes its owner or a new keeper can be located.' Substantially all dogs destroyed are dogs not wearing tags evidencing valid licenses.

The societies 'are under no obligation to any city, town or other public authority to continue to pick up or accept delivery of * * * dogs and cats' not picked up as dog officer. ¹ However, municipal dog officers and other officials and employees know and approve of the activity and rely on it as the method by which a substantial portion of the stray dog and cat population is dealt with. In many municipalities in reliance on the work of these or other similar charitable organizations, dog officers do little or no collection work.

The declared policies of the societies have never included disposing of dogs or cats for use in experiments and the societies, by their officers, have declared opposition to such procedure, and contributions have been made to the societies by persons who were opposed thereto and were familiar with the position of the societies.

Other relevant facts are noted in the course of the opinion.

The single brief for all petitioners in the three cases (the petitioners) asserts that municipally impounded dogs held for destruction or sale are public property which may not be granted to institutions not publicly owned and controlled under art. 46 of the Amendments to the Constitution of the Commonwealth. Thus they do not contend that the disposition of municipally impounded dogs held by the societies is any concern of their former owners or of the societies or like charitable...