Gambar halaman

marshal as compensation for the services which the ordinance requires him to perform in the matter of the enforcement of its provisions.

Section 3366 of the Political Code, as amended by the Legislature of 1901, with whose provisions it is claimed that the ordinance under which the petitioner is held in custody is at cross purposes, authorizes "boards of supervisors of the counties of the state, and the legislative bodies of the incorporated cities and towns therein, in the exercise of their police powers, and for the purpose of regulation, as herein provided, and not otherwise,” to license "all and any kind of business not prohibited by law, and transacted and carried on within the limits of their respective jurisdictions,” etc. The purpose of Ordinance No. 119 of the city of Ukiah, which was passed by the board of trustees of said city on the 20th day of June, 1904, and which, it is contended, repealed the ordinance under consideration, may be shown by its title, which is as follows: "To license, for the purpose of revenue and regulation, of every kind of business authorized by law and transacted and carried ou within the town of Ukiah City, and all show's, exhibitions and lawful games carried on therein. To fix the rate of license tax upon the same and to provide for the collection of the same by suit or otherwise." This ordinance then prescribes the amount of the annual license tax which shall be paid for carrying on and conduciing the various kinds of businesses and occupations prosecuted within the corporate limits of said town of Ukiah.. There is no attempt made in the last-mentioned ordinance to license or regulate the ownership of dogs within the municipal limits of said town, nor is there any reference whatever therein to those animals. As Orilinance No. 13 and Ordinance No. 119 deal with entirely and widely different subjects, we are unable to appreciate the force, if any it possesses, of the suggestion of counsel for the prisoner that the former ordinance has been repealed by the latter. There is no language to be found in Ordinance No. 119 expressly repealing Ordinance No. 15, nor are the subjectmatters of the two ordinances so correlated or connected as to impart to Ordinance No. 119 the effect of repealing by implication Ordinance No. 15. The general object of the two ordinances is, it is true, the same the regulation of certain matters of local (oncern to the municipal corporation and its members—but the particular subjects of regulation treated by the two ordinances are so diverse that if one of them should, in fact, be repealed, and the other omitted to expressly provide for the licensing and regulation of the subject-matters or occupations dealt with by the abrogated measure, such matters or Occupations would be immune from interference by the local authorities (unless, of course, they should become nui

sances by the manner of their operation) and could be maintained and prosecuted without & municipal license or other authorization from the corporation. It is scarcely necessary to suggest that the adoption of an ordinance licensing and regulating the business of a banker or a baker or a laundry could not operate, per se, to repeal an ordinance, previously passed, licensing and regulating the retail sale of intoxicating liquors. To accomplish the repeal of an ordinance or of a statute, there must either be language employed expressly declaring such intention, or there must exist in the subsequent ordinance or statute language so inconsistent with the provisions of the former as to necessarily effect a repeal by implication. The salient parts of the two must, in other words, be so incongruous and wanting in harmony as to make it impossible for the two to stand together.

Nor is there anything inconsistent between the provisions of the ordinance in question and those of section 3366 of the Political Code. Ordinance No. 15 was undoubtedly designed as and is one of police regulation, and the evident object of the section of the Political Code referred to, as amended by the Legislature of 1901, is to restrict the power exercisable by boards of supervisors and of the legislative bodies of the incorporated cities and towns of the state, to impose license taxes, to the purposes of regulation only. But counties, cities, and towns are not required to seek in any legislative enactment for the source of their power to make and enforce within their respective limits all local, police, sanitary, and other regulations which they may deem needful and requisite for their welfare and that of their inhabitants. The Constitution has, by direct grant, vested in them plenary power to provide and enforce such police, sanitary, and other local regulations as they may determine shall be necessary for the health, peace, comfort, and happiness of their inhabitants, provide such regulations do not conflict with general laws. Article 11, § 11, Const. And the Legislature has no authority to limit the exercise of the power thus directly conferred upon cities, counties, and towns by the organic law. The only test is. therefore : Do such regulations conflict with any general law of the state? If they do not, then they have bindling authority upon all inhabitants of the city or county or town for which they are established upon all the subjects to which they relate and which legitimately come within the scope of the power granted by the Constitution. Ex parte McClain, 134 Cal. 111, 66 Pac. 69, 51 L. R. A. 779, 86 Am. St. Rep. 243; Ex parte Lacey, 108 Cal. 326 et seq., 41 Pac. 411, 38 L. R. 1. 610, 19 Am. St. Rep. :3. Our attention has been directed to no general law, with the provisions of which the ordinance, whose validity is here challenged, is in conflict.

But the learned counsel for petitioner de

[ocr errors]

clares that the ordinance is unconstitutional ; ties. Much has been written and spoken of because it is unreasonable and uncertain, and the dog and his many noble qualities. It therefore oppressively burdensome. The ar- may truthfully be admitted that innumerable gument in support of this contention is that instances of the unflinching loyalty and faiththe ordinance does not fix any particular time fulness of that quadruped to bis master or to at which the tax must be paid; that the a friend to whom he has become attached words "current year," as used in the ordi- are recorded, and have justly inspired writers nance, are indefinite and uncertain as to the of intense and ardent natures and of vivid time when the tax shall be paid, and it is and lively imaginations to soar to supernal said that, if it be meant by those words that heights of eloquence and of poetic fancy in the tax is to cover the period "from January | their descriptive song of the noble attributes 1st to December 31st, any person who became of the dog. There can be nothing farther the owner of a dog on the 31st day of Decem- from the purpose or disposition of the writer ber, 1907, would be liable for the full amount of this opinion to detract from or underof the tax, although he owned the dog less estimate the worth of a good, conscientious, than a day, whereas, another person who i law-respecting dog-a canine content to reowned the dog on January 1st, 1907, would main at all times within the limits of bis pay no more than he would." The unreason- own bailiwick and there regale himself in ableness of the ordinance is also found in an atmosphere of perfect ease and comfort. the fact that it provides for the destruction with frequent delightful excursions to the of a dog upon which no license tax has been land of Hypnos, and at the same time ever paid two days after the animal has been im- alert to the highest interests of his master, pounded, unless he has been redeemed, with- and, generally speaking, scrupulously faithout notifying the owner of such contem- ful to all the pacific and innocent pursuits plated destruction, and this is said to be the which have copie within the curriculum of taking of property without due process of his education, There can be no doubt that law. Other objections to the reasonableness ; many dogs, for their acts of heroism in savof the ordinance are that it does not with ing human life or preventing injury to their certainty provide what specific acts shall con- masters when surrounded by appalling cirstitute a violation thereof to thus render the cumstances of danger, deserve a conspicuous violator amenable to the punishment pre- place in poetry and song; but there is no inscribed therein; that it is uncertain in that consistency between this observation and the it does not appear clear whether the accused suggestion that when the poet, as, under the must violate all or only a part of the provi- entrancing spell of ethereal dreams, in wingsions of the ordinance before he can be ad- ed boat, he flits "from mount to mount judged guilty of a misdemeanor thereunder; through Cloudland,” permits fancy to get that the ordinance authorizes the city mar- the upper hand of fact, and thus unconsciousshal to commit a trespass by going upon the ly wanders from concrete cases to abstracpremises of a citizen without a warrant or tions in his perfervid panegyrics upon the other process and capture and take to the canine, he slips far over and beyond even the pound a dog upon which a license tax has boundary line established and tolerated by not been paid. In short, no conceivable poetic license. It is, we think, safe to say ground or reason upon which an objection that those writers who have written such could be urged against the validity of the glowing tributes to the dog in the abstract ordinance has been overlooked. But a care- have never had any actual experience with ful examination of the provisions of this local a monstrous canine of the bull family, to regulation does not, in our opinion, bear out which they were strangers. There is neither or sustain any of the points which counsel poetry nor sentiment in the dog, as a rule. has rather ingeniously atteinpted to maintain ! especially when one meets him upon what against the constitutional soundness of the he conceives to be his own preserves, for such measure, or against its validity for any rea- an occasion is generally conceded to be an son. It is not only not ambiguous and un- appropriate time to cast song and sentiment certain in its terms, but its language is clear to the winds and to get busy by moving with and unmistakable and easy of comprehension, all possible haste a comfortable distance benor are its provisions and terms character- yond the danger line. But it must be adized by unreasonableness. On the contrary, mitted that there are really some good-temthe ordinance appears to represent only a pered, well-behaved dogs, which are, it may wholesome and salutary exercise of the pow- be granted, quite useful in their way. But er of police. The purpose sought to be at- the other kind become good dogs only when tained by the ordinance is not only commend- they have ceased to be able to exercise the able in the highest degree, but is of para- power of respiration, mount importance to all communities pos- At the common law, the dog was classed sessing a considerable number of inhabitants. in the category of animals fera natura, and Common experience justifies strenuous op- many of them should be so classed now. position to (and wisely sanctions the curbing are safe in going further and declaring that of) unbridled, and, it may be added without the very best of them can, with less effort facetiousness, unmuzzled, liberty in the ca- and in a shorter space of time, make themnine species, particularly in urban communi- selves more of a nuisance to the square inch

We than any other domestic quadruped of which excellent and unanswerable reasons, any ore we have any knowledge. Even those hav- of which is sufficient to sustain the policy and ing the good fortune to have received the the necessity of such an ordinance. Every fullest measure of civilizing care, nursing, city, town, and county should have such a petting, and general disciplinary domestica- measure and give its provisions full, hearty, tion, from puphood to the danger point of and complete enforcement. maturity, have not bad the instincts of sav- Certain of the complaints urged against the agery inherited from their distinguished an- validity of the ordinance before us necessarcestrial relative and implacable enemy of the ily assume that the officers, in the enforcehuman race, the wolf, so mollified as to ren- ment of its provisions, will themselves comder them altogether disposed to maintain uni- mit infractions of the law. No such assumpformly peaceful relations with the human tion or presumption can be indulged. Two family. For it may be accurately declared modes of executing the terms of the ordithat nearly all dogs are friendly only with nance are prescribed : (1) Where, because their masters and immediate family, and of failure or refusal to pay the license tax, that strangers, however honest and peaceful the owner of the dog may be complained of their intentions may be, are almost invaria- in the city court, arrested upon a warrant bly treated by them as intruders, having no and prosecuted in the manner prescribed by rights that a dog is compelled to respect. In the law in all such cases. (2) Where the dog these observations, though rather dog-matic- is found upon the public streets, bearing no ally asserted, we think no one of ordinary proper evidence of the tax having been paid, experience in the common, all-around affairs the animal may be impounded, and after two of this mundane sphere will hesitate to con- days from such impounding may, unless re

If the killing by the marshal of a dog, deemed by the owner, be by the marshal dewithout forinally notifying the owner of the stroyed. The marshal would, of course, have time and place of the proposed execution, is no right to go upon the private premises of violative of the injunctions of our constitu- a citizen upon an official mission without tions against the taking of property without being "armed with process," except where, due process of law, how much more flagrant- upon such premises, he might himself witness ly is that sacred fundamental principle out- the commission of a crime. The objection as raged in the vicious act of an ill-tempered, to the time at which and the exact period for snapping dog, which, without previous warn- which the license is to be paid has no merit. ing or other due notice and without provoca- As we understand the terms of the ordinance, tion, wantonly deprives a human individual, the license tax of $2 is to cover a calendar who has never trespassed upon or otherwise year, and it is, so far as the proposition may invaded his rights, of a quantity of his avoir- affect the validity of the ordinance, immadupois! This suggestion is offered only in terial at what particular time it is paid. The illustration of one of easily a hundred avail- illustration submitted by counsel in his effort able reasons which could be advanced in sup- to sustain his contention of the unfairness port of a local legislative measure whose ob- and unreasonableness of the ordinance of ject is to regulate the ownership and con- where a person might become the owner of sequently, as far as it can be done, the a dog on the 31st of December, 1907, and is behavior of dogs. To effectually accomplish forced to pay the license tax for the entire this end, the owner of the dog, by the pro- year just closing, suggests nothing militating visions of the ordinance under review, for against the reasonableness of the measure. the privilege of such ownership, is required The new owner or master of the dog in that to pay a license tax, or, in default thereof, case would have no license to pay for the must bear the penalty prescribed; or, in year about to terminate if the previous owner case the dog has no owner, or his owner does had already paid the tax. If the previous not think enough of him to pay the license, owner had not done so, it would only be reathen the marshal may destroy him.

sonable and just that the subsequent owner Many other reasons than those already sug- should do so, not only because the tax upon gested could be given why the ordinance the dog is due from somebody, if there is and here is not only reasonable, but an important, has been an owner, but also for the reason regulation. The dog is subject to hydropho- that a person who becomes, by purchase or bic fits, and the laceration of the flesh of a gift, the owner of a dog upon which an auhuman by a dog thus afflicted will almost thorized license tax remains unpaid assumes, invariably inoculate such person with the in acquiring rights under such ownership, poison of the malady, usually with a fatal the burden of any duty with reference thereresult. And, too, as some of the cited author- to, which the government, under its power, ities suggest, if a dog commits damage for may have seen fit to impose. There is notlıwhich his owner may be held liable, such an ing in the point that it is difficult to deterordinance as the one here would materially mine from the ordinance how much thereofaid in the identification of the owner, as- whether all or only a part-an accused persuming that he has paid the tax, and would son must violate before he may be adjudged therefore the better enable the injured party | guilty of a misdemeanor. It is as clear as to invoke the rule of respondeat superior! language can make it that a refusal by : But it is unnecessary to enumerate all the citizen owning or harboring a dog within the

91 P.-28

corporate limits to pay the license as requir- of the payment of said license tax. It further ed would bring his conduct within the penal provides for the enforcement of a penalty for a purview of the ordinance. The regulation re- noncompliance with the law, or "for the doing quires nothing else at the hands of such citi

of some prohibited act.” And in that manner zen than the payment of the license. There the power of police is exercised. Merced Counare certain provisions prescribing the duties

ty v. Helm, 102 Cal. 163, 36 Pac. 399. The orof the marshal under the ordinance. The

dinance also provides for the destruction of willful failure of that official to perform

a dog upon which a license tax has not been those duties would undoubtedly subject him

paid, and which does not, therefore, bear a to the penalty of a misdemeanor under the

collar to which is attached the seal or determs of the measure.

vice referred to. All these provisions, in Counsel questions the purpose of the ordi

their very nature, demonstrate that the ordinance to be that of regulation because it con

nance is intended as an exercise of the police tains no provision probibiting the owner

and not of the taxing power. No American ship of dogs within the corporate limits of the

court has ever questioned the right under the town. A conclusive answer to this unique

police power to regulate the control, managesuggestion is, first, that there is no power in

ment or use of dogs. The dog became a domunicipal or other authorities to probibit the

mestic animal originally by virtue of legislaownership of dogs, no more than there is

tive enactments, and but for statutes impartsuch power to prohibit the ownership of any

ing to him the status of property in all the other species of property ; second, if such

states and countries where the common law power existed, there certainly would be a

is the foundation of their jurisprudence the striking incongruity between the clause pro

dog would now have no standing before the bibiting such ownership and the one licens

law, except where, as in the case of other ing it The ordinance is, as we have declared, a

wild animals, he was reduced to possession,

and even then, should he depart from his reasonable and appropriate exercise of the power vested by the Constitution in the cities,

possessor without animo revertendi, he thus towns, counties and townships of the state.

placed bimself again beyond the protection The petitioner will be remanded.

of the law. As illustrative of some of the

reasons upon which laws regulating property We concur: CHIPMAN, P. J.: BUR- in dogs are founded, we shall here present NETT, J.

extracts from some of the many autborities

upon the subject. In 67 Am. St. Rep. p. 298, On Rehearing.

the editor, in an extended note upon the subHART, J. In his petition for rebearing ject, says: "That property in dogs may be counsel for petitioner suggests that in the subjected to regulation by the state in the decision of the case we overlooked the main

exercise of its police power cannot be quespoint upon which he relied, and misconceived tioned

Such regulation usually his point was to the force of section 3366, Pol. runs in the direction of imposing license taxCode." The main point referred to, although es upon the keeping of dogs, and it is well stated by counsel in his petition in the nature settled that the summary destruction of dogs of a number of queries, is briefly this: That may be authorized when such regulations are the ordinance in question represents the tax- not complied with." In Jenkins v. Ballan. ing rather than the police power, because the tyne, 8 Utab, 245, 30 Pac. 760, 16 L. R. A. license provided for therein amounts to a per 6S9, it is said: "The police power of the capita tax upon dogs, and therefore there is state has been used to regulate and control imposed by the ordinance a restriction upon property in dogs to a greater extent than the ownership of those animals. In other property in any other class of domestic aniwords, his contention is that the ordinance mals. It is a peculiar kind of property. authorizes a tax upon the ownership of dogs Such animals increase rapidly. They are and not an attempt to regulate their use. usually of but little expense to their owners We think that perhaps in one part of the when allowed to run at large, and in a domain opinion we unhappily used language mestic state they retain to a considerable dewhich might imply that we held that a li- gree their wild, mischievous, and ferocious cense for regulatory purposes migbt be im- natures. Their trespasses and invasions of posed upon the ownership of dogs. What we rights not belonging to their masters are intended to say then and what we do say now often such as are impossible to prevent and is that a license tax upon dogs may be im- wben the mischief is done sometimes it is imposed as an incident of the regulation of their possible to identify the dog or his owner, and management or control, or, as counsel pre when found the latter is sometimes as irrefers to express it, of their use. The very sponsible as the former. In fact, judicial terms of the ordinance before us show it to process and inquiry is altogether inadequate be a regulatory measure. It provides that to redress such wrongs. Hence such laws the owner of the dog, upon the payment of

and ordinances' as those in question are the required license tax, shall attach to a col adopted, requiring the owner of dogs to reg. lar to be worn by said dog a seal or device ister and collar them. By such means the us evidence of the ownership of the dog and owner is ascertained and made responsible, and all dogs not deemed worth the trouble, this point is that that section at the time of and expense of registration are outlawed its enactment declared the full power of a when at large and liable to be killed."

municipal corporation to license for regulaCounsel undertakes to discover a distinc

What we said in the main opinion tion between the law as expounded by the was: “Nor is there anything inconsistent courts in certain other jurisdictions and the between the provisions of the ordinance in law in California because in the former the question and those of section 3366 of the dog is only qualified or base property, where- Political Code," and then declared that inas, in this state the statute impresses him corporated cities and towns derived their with the full status of property. So far as power to make all needful police regulations the vital question involved in this discussion from the Constitution itself. Our position is concerned, it can make no difference wheth- in the main opinion was, and we know of er the dog is property or not. The power in no reason for changing it, that sertion 3300 the state to regulate its control or use is not

of the Political Code does not, nor has the dependent upon that proposition. The dog Legislature the right to do so at all, limit is not, because of having been constituted the power granted by the Constitution to property by legislative enactment, hedged counties and to cities and towns to which about by a sacredness or surrounded by a

that section may be applicable to adopt such halo that will prevent the police power from

police regulations as they may decide to extending to him if the governing or other be requisite for their welfare, and, if a liduly constituted authorities of an incorporat

cense tax be deemed to be essential to the ed city or town deem it necessary for the

full accomplishment of the purposes of such peace and comfort of the community to regu

regulations, any attempted legislative inhibilate its use or control within the limits of

tion against it is absolutely roid. The only such city or town. Ordinances prohibiting

qualification to be found in this constitutionthe running at large within the limits of

al grant of power to counties and incorpotowns and cities of horses, cows, sheep, hogs,

ratel towns and cities is that such local and other useful domestic animals, and au

regulations shall not conflict with general

laws. By this is clearly meant that the Legthorizing their impounding when found so

islature may itself, by general laws, exerrunning at large and even their sale, if not

cise the power thus conferred upon such redeemed, m:ght be said with equal reason to

cities and towns and upon counties, and restrict in effect the ownership of those ani

that local regulations adopted by municipal mals within the limits of such cities and towns, and such ordinances have been up

boards not in harmony with such general

laws would, of course, be void anrl inoperheld as a wholesome exercise of the police

ative. In other words, the Legislature may power. Of course, such ordinances are de

itself exercise the power granted by the signed only as a regulation of the use and

Constitution, but cannot limit the exercise of management of those animals, and do not,

such power either by itself or by the local in fact restrict or interfere with ownership.

governing bodies. As we understand counThe ordinance here does not, it will be readi

sel, his contention is that the section of the ly noted, either expressly or by implication,

Code referred to limits the power of licensattempt to interfere with the ownership of

ing for regulation to a "business" of some dogs. As stated in the main opinion, the au

character, and that a dog is not a “business" thorities could not by ordinance or otherwise

in contemplation of that section; hence any disturb the right of ownership of those ani

attempt to license a dog as an incident of a mals. Any person ambitious to own a dog regulatory measure is contrary to the section of any kind which may best suit his fancy

named. The statement of the proposition opermay not only exercise the right of such own

ates as its own refutation. Moreover, when ership, but may keep and maintain the ani

counsel admits, as he appears to do, the mal within the limits of Ukiah City, if he

right of a municipal corporation to regulate complies with the regulations as to its man

property in a dog or the use thereof, he agement, control, or use prescribed by the or

necessarily admits that such regulation may dinance. The owner of a cow must, in order

take the form of license, for it has never to maintain and keep that useful animal

been doubted 'for a moment, either by the within the limits of a city or town, obey the text-writers or the courts, that when a busiregulations of such city or town with refer

ness or other matter which may be the subence to such animals, or be subjected to the

ject of police regulation is so regulated a penalties of the ordinance. And his owner- license may be required as a condition to ship of the cow is thus in no manner or de

carrying on such business or to the maintegree interfered with. In short, the terms of

nance of whatever may be the subject-matter the ordinance only involve the application of of such regulation, and a license fee imposed. the familiar principle that every person shall The fee exacted for such license is not, as so use his own property as not to injure the

we think we have shown, intended for purrights of other persons or of the public. poses of revenue, but is designed to cover

We do not think we misconceived coun- the expense of supervision or the proper ensel's position as to the effect of section 3366 forcement of the ordinance. In a case like of the Political Code. His argument upon the one at bar, the fee is directed to the ac

« SebelumnyaLanjutkan »