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Subject Area: Law
Topic: The American Revolution and Constitution

§ 176.: Keeping of dogs.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 176.

Keeping of dogs.—

Laws for the regulation of the keeping of dogs are very much more common than the regulation of property in any other kind of domestic animals, and deserve special consideration. The right of property in a dog, although supposed at common law to be less valuable, and consequently less deserving of legal protection, has always been recognized. But in consequence of the tedency to be vicious, the dog’s life has always been somewhat precarious. No one at common law has a right to kill a dog that is doing no harm, and has exhibited no vicious propensities, even though he may be trespassing upon another’s land.1 But not only may one kill any animal damage feasant, if it be necessary for the protection of life and property;2 but also where a ferocious dog, addicted to biting mankind, is suffered to run at large unmuzzled, it is a common nuisance, and any person may kill it, independently of statute; and independently of the question whether it was doing or threatening mischief at the time of the killing, or whether the owner had notice of its disposition.3 But no one has, independently of statute, a right to kill a fierce or dangerous dog, if it is kept on the owner’s premises and not allowed to go at large.4 The State may, however, by statute, provide for the killing of all vicious dogs, and even impose upon the owners the duty and burden of killing them.5

But the duties of the owners of dogs may be and are frequently changed by statute. The following lengthy quotation from an opinion of the Supreme Court of Massachusetts, gives an interesting account of the “dog” legislation in that State, and will serve as an index of similar legislation in other States. It is given in full, because neighborly disputes over dogs are a frequent source of bad feeling and expensive litigation:—

“There is no kind of property over which the exercise of this power (of police regulation) is more frequent or necessary than that which is the subject of the present action. In regard to the ownership of live animals, the law has long made a distinction between dogs and cats and other domestic quadrupeds, growing out of the nature of the creatures and the purpose for which they are kept. Beasts which have been thoroughly tamed, and are used for burden or husbandry, or for food, such as horses, cattle and sheep, are as truly property of intrinsic value and entitled to the same protection as any kind of goods. But dogs and cats, even in a state of domestication, never wholly lose their wild nature and destructive instincts, and are kept either for uses which depend on retaining and calling into action those very natures and instincts, or else for the mere whim or pleasure of the owner; and, therefore, although a man might have such a right of property in a dog as to maintain trespass or trover for unlawfully taking or destroying it, yet he was held, in the phrase of the books, to have ‘no absolute and valuable property’ therein which could be the subject of a prosecution for larceny at common law, or even, according to some authorities, of an action of detinue or replevin, or a distress for rent, or which could make him responsible for the trespasses of his dog on the lands of other persons, as he would be for the trespasses of his cattle.1 And 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.1

“The damages sought to be prevented by the dog laws of the commonwealth, as declared in the preambles to the earlier ones, are sudden assaults upon persons, worrying, wounding and killing of neat cattle, sheep and lambs, ‘distressing evils from canine madness’ and other injuries occasioned by dogs. These statutes, which have been the subject of repeated consideration and revision by the legislature, with a view of securing these objects, and of affording means for ascertaining the owners and making them liable for the mischievous acts of their dogs, have accordingly not only provided that any person might kill a dog assaulting him, or attacking cattle or sheep, out of its owner’s inclosure; and that the owner should be responsible, in either single, double or treble damages, for mischief committed by his dog; but have also declared that it should be lawful to kill any dog, as to which the requirements of law had not been complied with under circumstances which have varied in successive statutes. At first it was only any dog ‘found strolling out of the inclosure or immediate care of its owner,’ after due notice to him that it was suspected of being dangerous or mischievous; then ‘not having a collar and certified’ to the assessor; and, by later statutes, ‘any dog found going at large, not wearing a collar;’ ‘found and being without a collar;’ ‘being without a collar;’ ‘going at large, and not registered in the town clerk’s office, or the tax on which had not been paid;’ ‘going at large and not licensed and collared;’ or, finally, all dogs, not licensed and collared, as required by statute, ‘whenever and wherever found.’ For the last ten years the statutes have also declared it to be the duty of certain public officers to cause such dogs to be destroyed under the circumstances pointed out; and have given a remedy against the town or county for any injury done by dogs to other domestic animals.

“These statutes have been administered by the courts according to the fair construction of their terms, and without a doubt of their constitutionality. Under the statute of 1812, chapter 146, which required the owner or keeper of any dog to put a collar about its neck, to be constantly worn, with the name and residence of the owner marked thereon, and declared it to be lawful to kill any dog ‘found and being without a collar as aforesaid’ (omitting the qualifications of other statutes, of ‘going at large’ or ‘out of the immediate care of its owner’), it was held that no action could be maintained for killing a dog without such a collar, out of his owner’s inclosure, although under his immediate care; Chief Justice Shaw saying: ‘We think it was the intention of the legislature not to give the owner of a dog a right to maintain an action for destroying him, unless he had, in fact, given that security to the public which the act required.’1 And a person who, instead of killing a dog being without a collar, converted him to his own use, was held liable to the owner in trover, because in the words of Chief Justice Shaw: ‘The object of the statute is, not to confer a benefit on an individual, but to rid society of a nuisance by killing the dog.’2 Similar statutes have been held in other States to be reasonable and constitutional regulations of police.3 The statute under which this defendant justifies provides that the mayor of cities and chairmen of selectmen of towns, shall within ten days from the first day of July, annually, ‘issue a warrant to one or more police officers or constables, directing them to proceed forthwith either to kill or cause to be killed all dogs within their respective cities or towns, not licensed and collared according to the provisions of this act, and to enter complaint against the owners or keepers thereof; and any person may, and every police officer and constable shall, kill or cause ‘to be killed all such dogs, whenever and wherever found.’1 The warrant here provided for, being general in its form, not founded on oath, nor containing any special designation of object, is not indeed a legal warrant of search and seizure; it is rather an appointment of the officer who is to be specially charged with the duty of executing the authority conferred by the statute. The statute makes it the duty of every police officer and constable to kill or cause to be killed, all dogs not licensed and collared according to its provisions, ‘whenever and wherever found.’ There are no express restrictions of time or place, and no limitation, as in earlier statutes, to dogs going at large, or out of the owner’s inclosure or his immediate care. Any restrictions upon the authority of the officer arise by implication, from regard to the sanctity of the dwelling house or the danger of a breach of the peace. But it is unnecessary in the present cases very closely to consider the extent of such restrictions, if any, which are to be implied upon the power and duty of the officer to abate what the law has declared to be in substance and effect a public nuisance. The regulations imposed by the statute upon the ownership and keeping of dogs are reasonable and easy to be complied with. If any dog is an object of value or of affection to his owner he has only to procure and record a license and put on a collar, in order to bring it under the protection of the law.

“It is agreed that neither of the plaintiffs had complied with the statute in these respects, and there is nothing in the facts agreed in either of the cases from which it can be inferred that the defendant committed any trespass upon the plaintiff’s premises, or any act tending to a breach of the peace. Under the defendant’s authority and duty to kill or cause to be killed all dogs not licensed and collared, ‘whenever and wherever found,’ he had clearly a right peaceably to enter for that purpose, without permission, upon the close of the owner or keeper of such a dog, and there kill it.”1

Regulations of this general character are to be found in very many, if not most, of the States. The constitutionality of laws has been very generally sustained, which authorized the killing of all dogs without a collar.2 And it has frequently been held lawful for the State, as an encouragement for the rearing of sheep, to discourage the keeping of dogs by the requirement of a license fee for each dog.3 And conceding the right of the State to require a license fee for the keeping of a dog, which is intended to operate as a check upon the keeping of dogs, the amount of the license is not open to judicial revision. It cannot be confined by judicial intervention to the mere expense of issuing the license. In order to operate as a restraint upon the keeping of dogs, the amount of the license must be large enough to make it burdensome to keep dogs, and, as has been fully explained in connection with the discussion of licenses in general,1 the imposition of such licenses, as a restraint upon the doing of some thing which inflicts or threatens to inflict injury on the public, is free from all constitutional objections.2

In many of the States compensation is given by statute to the owners of the sheep killed by dogs, and a summary proceeding is usually provided for recovering damages from the owner of the dog. But in order to be constitutional, the act must provide for a judicial examination of the wrong done and the damage suffered, with a full opportunity for the owner of the dog to be heard. In New Hampshire a statute of this kind was declared to be unconstitutional so far as it undertook to bind the owner of the dog by the amount of damages, which had been fixed by the selectmen of the town without giving him an opportunity to be heard on the question of damages.3 In Michigan a statute was sustained, which required the money, collected from the enforcement of the tax against dogs, to be kept as a fund for the reimbursement of sheep owners for the losses of sheep, which have been killed by dogs.1

[1]Brent v. Kimball, 60 Ill. 21 (14 Am. Rep. 35); Matthew v. Fiestel, 3 E. D. Smith, 90; Dodson v. Moch, 4 Dev. & B. L. 146.

[2]Aldrich v. Wright, 53 N. H. 398.

[3]Putnam v. Payne, 13 Johns. 312; Maxwell v. Palmerton, 21 Wend. 407; Dunlap v. Synder, 17 Barb. 561; People v. Board of Police, 15 Abb. Pr. 167; Brown v. Carpenter, 26 Vt. 638; Woolf v. Chalker, 31 Conn. 121.

[4]Perry v. Phipps, 10 Ired. L. 259.

[5]People v. Gillespie, 25 App. Div. 91 (48 N. Y. S. 882).

[1]Vin. Abr. Trespass Z; Replevin A; 2 Bla. Com. 193; 3 Bla. Com. 7; 4 Bla. Com. 234, 235; Milton v. Faudrye, Pop. 116; s. c. nom. Millen v. Fawer, Bendl. 171; Mason v. Keeling, 1 Ld. Raym. 608; s. c. 12 Mod. 336; Read v. Edwards, 17 C. B. (n. s.) 245; Regina v. Robinson, 8 Cox Crim. Cas. 115.

[1]Putnam v. Payne, 13 Johns. 312; Brown v. Carpenter, 26 Vt. 638; Woolf v. Chalker, 31 Conn. 121.

[1]Tower v. Tower, 18 Pick. 262.

[2]Cummings v. Perham, 1 Met. 555.

[3]Morey v. Brown, 42 N. H. 373; Carter v. Dow, 16 Wis. 298.

[1]Statutes 1867, ch. 130, § 7.

[1]Blair v. Forehand, 100 Mass. 136 (1 Am. Rep. 94). See, also, Commonwealth v. Palmer, 134 Mass. 537.

[2]Morey v. Brown, 42 N. H. 373; Cranston v. Mayor of Augusta, 61 Ga. 572; Sentell v. New Orleans & C. Ry. Co., 166 U. S. 698; Jenkins v. Ballantyne, 8 Utah, 245; People v. Tighe, 9 Misc. Rep. 607 (30 N. Y. S. 368); Fox v. Mohawk & H. R. Humane Society (Hun), 46 N. Y. S. 232; Wilson v. Byers, 5 Wash. St. 303; City of Independence v. Trouvalle, 15 Kans. 70; City of Cherokee v. Fox, 34 Kans. 16; State v. City of Topeka, 36 Kans. 76; Woolf v. Chalker, 31 Conn. 121; King v. Kline, 6 Pa. St. 318; Mitchell v. Williams, 27 Ind. 62; State v. Cornwall, Ib. 120; Haller v. Sheridan, Ib. 494; Commonwealth v. Markham, 7 Bush, 486; Mowery v. Salisbury, 82 N. C. 175; Cole v. Hall, 103 Ill. 30; Holst v. Roe, 39 Ohio St. 340; Archer v. Baertschi, 8 Ohio C. C. 12; Van Horn v. People, 46 Mich. 183; Hendric v. Kalthoff, 48 Mich. 306; Tenney v. Lenz, 16 Wis. 589; Marshall v. Blackshire, 44 Iowa, 475; City of Carthage v. Rhodes, 101 Mo. 175. But see Lynn v. State, 33 Tex. Cr. Rep. 153, denying this power of the State. But this power cannot be delegated to a private humane society. Fox v. Mohawk & H. R. Humane Society, 48 N. Y. S. 625; 25 App. Div. 26.

[3]Mitchell v. Williams, 27 Ind. 62; Carter v. Dow, 16 Wis. 298; Tenney v. Lenz, 16 Wis. 566; State v. Cornwall, 27 Ind. 62; Holts v. Roe, S. C. Ohio, 5 Ohio Law J. 605.

[1]See ante, § 119.

[2]“We cannot assent to the position taken by appellant, that if the sum required for a license exceeds the expense of issuing, the act transcends the licensing power and imposes a tax. By such a theory the police power would be shorn of all its efficiency. The exercise of that power is based upon the idea that the business licensed or kind of property regulated, is liable to work mischief, and therefore needs restraints, which shall operate as a protection to the public. For this purpose the license money is required to be paid. But if it could not exceed the mere expense of issuing the license, its object would fail altogether. * * * We have no doubt, therefore, that the legislature may, in regulating any matter that is a proper subject of police power, impose such sums for licenses as will operate as partial restrictions upon the business, or upon the keeping of particular kinds of property.” Tenny v. Lenz. 16 Wis. 567.

[3]East Kingston v. Towle, 48 N. H. 57 (2 Am. Rep. 170). But see contra, supporting the constitutionality of such a law, Fairchild v. Rich, 68 Vt. 202.

[1]Longyear v. Buch, 83 Mich. 236.