Stubbs v. People

Citation90 P. 1114, 40 Colo. 414
Case DateJuly 01, 1907
CourtSupreme Court of Colorado

90 P. 1114

40 Colo. 414

STUBBS
v.
PEOPLE.

FITZELL
v.
SAME.

Supreme Court of Colorado, En Banc.

July 1, 1907


Error to District Court, City and County of Denver; Samuel L. Carpenter, Judge.

Consolidated cases. Charles E. Stubbs and Nehemiah H. Fitzell were convicted of using docked tailed horses, and bring error. Reversed.

[40 Colo. 415] Sterling B. Toney, Henry V. Johnson, and R. Burge Toney, for plaintiff in error Chas. E. Stubbs.

O. N. Hilton and Caesar A. Roberts, for plaintiff in error N.H. Fitzwell.

N. C. Miller, I. B. Melville, W. H. Dickson, Atty. Gen., and S. H. Thompson, Asst. Atty. Gen., for the People.

BAILEY, J.

Inasmuch as the same principles are involved in each of these cases, they will be considered together. In the case against Stubbs, it appears that in July, 1905, William M. Springer, a partner of defendant Stubbs, purchased in Wales a Welsh cobb pony which had a docked tail. It was shipped to the United States, landed at New York upon August 20, 1905, and was shipped from there direct to Denver, to be kept in the stables of Springer and Stubbs. Mr. Springer purchased and imported this horse for the use of his daughter. In the month of December, 1905, the defendant Stubbs took his niece, [40 Colo. 416] a little girl visiting in Denver, for a drive behind this pony, and was arrested and convicted for using a docked tailed horse. In the case against defendant Fitzell, it appears that the Deniels & Fishers Stores Company authorized Mr. Kuykendall to purchase for them a pair of horses which would be good enough to show in heavy draft exhibitions. Pursuant to that request, Mr. Kuykendall purchased from Tishner of Chicago a pair of gray geldings, which were shipped from Chicago to Denver and received by Mr. Kuykendall for the Daniels & Fishers Stores Company, and for the first time it was learned by Mr. Kuykendall that these horses had docked tails. The horses were kept at the stables of the Denver Omnibus & Cab Company, of which Mr. Kuykendall appears to have been manager, and were driven by the defendant for the purpose of exercising them. They were brought here as show horses and exhibited at different places throughout the state. In another case against this defendant, it appears that a sorrel gelding was sent from the Rainsford Ranch, in Wyoming, to Denver, for the purpose of being broken and exhibited at the then coming horse show. This horse was driven by defendant Fitzell, and he was arrested for that, and was convicted in both cases for using docked tailed horses. The act of 1899 (Sess. Laws 1899, p. 175, c. 93, § 1) provides that: 'It shall be unlawful for any person or persons to dock the tail of any horse within the State of Colorado, or to procure the same to be docked, or to import or bring into this State any docked horse or horses, or to drive, work, use, race or deal in any unregistered docked horse or horses within the state of Colorado.' These cases make it necessary to determine two questions. The first is: Has the state the power [40 Colo. 417] to prohibit importing or bringing into the state horses with docked tails? The second is: If it has not such a power, has it the authority to prevent the use of such horses after they have been brought into the state, so long as they are the property of the person who imported them?

At the January, 1904, term of this court, this law, so far as it prohibited the use of docked horses which were docked in the state of Colorado after the passage of the act, was declared valid. Bland v. People, 32 Colo. 319, 76 P. 359, 65 L.R.A. 424, 105 Am.St.Rep. 80. The decision was based largely upon the theory that the use of docked horses was detrimental to the public morals, because frequently seeing the mutilated and disfigured animals tends to sear the conscience and minds of the people until they become accustomed to looking upon such things as a matter of course, and consequently it would tend to promote cruelty. The validity of that part of the act which prohibits the importation of docked horses or the bringing of them in from other states for use in this state was not passed upon, but was expressly excluded sa not being involved in the case. At the next session of the Legislature after this court had said that the sight of docked horses tended to sear public conscience and promoto cruelty, the Legislature repealed the law in so far as it relates to the importation and use in this state of docked, pure bred stallions and mares from foreign countries for breeding and exhibition purposes only, and to docked tailed native bred stallions and mares brought into this state and used for breeding and exhibition purposes only. This amendment destroys in a large degree the reasoning of the court in the Bland Case, because the exhibition of a mare or stallion brought in from another state cannot be said [90 P. 1115] to be less offensive to a sensitive mental or moral organization [40 Colo. 418] than the exhibition of one which was bred and raised in Colorado; nor can it be said that the exhibition of a short tailed stallion or a short tailed mare brought into this state for breeding and exhibition purposes would tend to sear the public conscience or destroy public morality to a less degree than the exhibition of a gelding which has been brought into this state from a foreign country or another state. The exhibition of a docked tailed horse before the multitude which is wont to gather at horse shows and other places where horses are publicly exhibited cannot be said to be less injurious to the public than the driving or using of them in the ordinary manner in which such animals are used. So that, no matter how correct the reasoning indulged in by the court in the Bland Case of 1904 may have been, the theory upon which such reasoning was based has been destroyed by the Legislature which met in 1905. If that reasoning is still good, can it be said that it affords a sufficient excuse for the prohibition of the importation into this state of docked tailed horses? So far as we have been advised, no other state in the Union has attempted to do such a thing. Consequently, there are no authorities that are directly in point upon this proposition.

However, the same principle has been repeatedly before the Supreme Court of the United States. In the case of United States v. E. C. Knight Co., 156 U.S. 1, 15 S.Ct. 249, 39 L.Ed. 325, it is said: 'It cannot be denied that the power of a state to protect the lives, health, and property of its citizens, and to preserve good order and the public morals, 'the power to govern men and things within the limits of its dominion,' is a power originally and always belonging to the states, not surrendered by them to the general government, nor directly restrained by the Constitution of the United States, and essentially exclusive. * * * On the other [40 Colo. 419] hand, the power of Congress to regulate commerce among the several states is also exclusive. The Constitution does not provide that interstate commerce shall be free; but, by the grant of this exclusive power to regulate it, it was left free except as Congress might impose restraints. Therefore it has been determined that the failure of Congress to exercise this exclusive power in any case is an expression of its will that the subject shall be free from restrictions or impositions upon it by the several states, and, if a law passed by a state in the exercise of its acknowledged powers comes into conflict with that will, the Congress and the state cannot occupy the position of equal opposing sovereignties, because the Constitution declares its supremacy and that of the laws passed in pursuance thereof; and that which is not supreme must yield to that which is supreme. 'Commerce, undoubtedly, is traffic' said Chief Justice Marshall, 'but it is something more; it is intercourse. It describes the commercial intercourse between nations and parts of nations in all its branches, and is regulated by prescribing rules for carrying on that intercourse.' That which belongs to commerce is within the jurisdiction of the United States, but that which does not belong to commerce is within the jurisdiction of the police power of the state.' Gibbons v. Ogden, 9 Wheat. (U. S.) 1, 189, 210, 6 L.Ed. 23; Brown v. Maryland, 12 Wheat. (U. S.) 419, 448, 6 L.Ed. 678; License Cases, 5 How. (U. S.) 504, 599, 12 L.Ed. 256; Mobile v. Kimball, 102 U.S. 691, 26 L.Ed. 238; Bowman v. Chicago, etc., Ry., 125 U.S. 465, 8 S.Ct. 689, 1062, 31 L.Ed. 700; Leisy v. Hardin, 135 U.S. 100, 10 S.Ct. 681, 34 L.Ed. 128; In re Rahrer, 140 U.S. 545, 555, 11 S.Ct. 865, 35 L.Ed. 572.

In Bowman v. Chicago, etc., Ry. Co., supra, in the concurring opinion of Justice Field, it is said: 'Whatever our individual views may be as to the deleterious or dangerous qualities of particular articles, we cannot hold that any articles which Congress [40 Colo. 420] recognizes as subjects of interstate commerce are not such, or that whatever are thus recognized can be controlled by state laws amounting to regulations, while they retain that character; although, at the same time, if directly dangerous in themselves, the state may take appropriate measures to guard against injury before it obtains complete jurisdiction over them. To concede to a state the power to exclude, directly or indirectly, articles so situated, without congressional permission, is to concede to a majority of the people of a state, represented in the state Legislature, the power to regulate commercial intercourse between the states, by determining what shall be its subjects, when that power was distinctly granted to be exercised by the people of the United States, represented in Congress, and its possession by the latter was considered essential to that more perfect Union which the Constitution was adopted to create.'

Scott v. Donald, 165 U.S. 58, 17 S.Ct. 265, 41 L.Ed. 632, and Gardner v. Donald, 165 U.S. 58, 17 S.Ct....

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3 practice notes
  • Riter-Conley Mfg. Co. v. Wryn, Case Number: 8187
    • United States
    • Supreme Court of Oklahoma
    • July 23, 1918
    ...678, 27 L.R.A. (N. S.) 493, 18 Ann. Cas. 1103; Cincinnati, N. O. & T. P. R. Co. v. Rankin, 154 Ky. 549, 157 S.W. 926; Stubbs v. People, 40 Colo. 414, 90 P. 1114, 11 L.R.A. (N. S.) 1071, 122 Am. St. Rep. 1068, 13 Ann. Cas. 1025--in support of its contention that the statute under review "is ......
  • People on Complaint of Freshel v. Teter
    • United States
    • New York Magistrate Court
    • August 31, 1962
    ...ground that the legislation went beyond permitted state power, no New York authority has been found. Page 655 However, Stubbs v. People, 40 Colo. 414, 90 P. 1114, 11 L.R.A.,N.S., 1071 (Colo. 1907), strikingly similar on the facts to the case here, fully discusses the constitutional aspects ......
  • Schultz v. Lewis
    • United States
    • Colorado Supreme Court of Colorado
    • July 1, 1907
    ...their verdict as to exemplary damages, any injury accruing to the business or reputation of the appellee as keeper of a gambling house.' [40 Colo. 414] The principle is well settled that no court will lend its aid to a party who bases his action upon criminal or illegal acts. No citation of......
3 cases
  • Riter-Conley Mfg. Co. v. Wryn, Case Number: 8187
    • United States
    • Supreme Court of Oklahoma
    • July 23, 1918
    ...27 L.R.A. (N. S.) 493, 18 Ann. Cas. 1103; Cincinnati, N. O. & T. P. R. Co. v. Rankin, 154 Ky. 549, 157 S.W. 926; Stubbs v. People, 40 Colo. 414, 90 P. 1114, 11 L.R.A. (N. S.) 1071, 122 Am. St. Rep. 1068, 13 Ann. Cas. 1025--in support of its contention that the statute under review "......
  • People on Complaint of Freshel v. Teter
    • United States
    • New York Magistrate Court
    • August 31, 1962
    ...ground that the legislation went beyond permitted state power, no New York authority has been found. Page 655 However, Stubbs v. People, 40 Colo. 414, 90 P. 1114, 11 L.R.A.,N.S., 1071 (Colo. 1907), strikingly similar on the facts to the case here, fully discusses the constitutional aspects ......
  • Schultz v. Lewis
    • United States
    • Colorado Supreme Court of Colorado
    • July 1, 1907
    ...their verdict as to exemplary damages, any injury accruing to the business or reputation of the appellee as keeper of a gambling house.' [40 Colo. 414] The principle is well settled that no court will lend its aid to a party who bases his action upon criminal or illegal acts. No citation of......

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