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only this, but it is also prohibited to any one to manufacture for distribution, as an advertisement, or for any otherwise lawful purpose, any metallic pieces with shape and impressions so resembling the shape and impressions of noney coins, that there is danger that they may be made the means of practicing frauds upon the unwary.

But in all these cases it is a judicial question whether the manufactured article is calculated to prove an instrument of trespass on the rights of other, and the prohibition of its manufacture can only be justified by an affirmative answer to this inquiry. The absolute prohibition of the manufacture of intoxicating liquors can only be justified by proof of the fact that intoxicating liquors cannot be put to some beneficial use. This is conceded to be false by all, whatever may be their other views on legislation in aid of temperance, and most of the present legislation permit its manufacture and sale for medicinal and mechanical purposes. If the position of temperance reformers, that the use of intoxicating liquors as a beverage is a wrong or trespass on society, cannot be successfully assailed, then the constitutionality of a law, which prohibited the manufacture of it except by certain licensed manufacturers, or by the State officers, could not be questioned. Although it would be unreasonable to confine its manufacture to licensed agents of the State, merely for the purpose of preventing the sale to habitual drunkards, lunatics and minors - great as that evil is, the number of such purchasers does not bear comparison with the immense number of those who buy and use it in moderation; — still the constitutionality of the regulation could not be attacked, for the necessity of the legislation is a legislative and not a judicial question.”

§ 140c. Carrying of concealed weapons prohibited.

I See U.S. Rev. Stat. & 5462.

See ante, § 103, for a general discussion of the prohibition of the liquor trade.

For the purpose of preventing or reducing the number of street affrays, which, it is claimed, the habit of carrying concealed weapons increases to a most alarming frequency, in most of the States there are now statutes in force, prohibiting the carrying of concealed weapons. Apart from a provision of the constitutions of the United States, and of the several States, which guarantees to every citizen the right to bear arms, there cannot be any serious constitutional objection raised to this regulation. It cannot be questioned that the habit of carrying concealed weapons tends to engender strife, for the very act indicates the expectation of a possible use for the weapons. The prchibition of carrying concealed weapons is, therefore, an appropriate remedy for the suppression of street affrays. The American constitutions guarantee to every citizen the right to possess and bear arms, in time of peace as well as in war; and no binding law can be passed by Congress or by a State legislature, prohibiting altogether the carrying of weapons of warfare. But the law against the carrying of concealed weapons is not a total prohibition. It is only a reasonable regulation, established to prevent a serious injury to the public in the enjoyment of this constitutional right. It only prohibits the carrying of concealed weapons, and does not interfere with any other mode of carrying them. It is the concealment which is calculated to produce harm to the public. Any one, carrying a weapon for a laudable purpose, will not desire to conceal it. The law against the carrying of concealed weapons has in many cases been declared to be constitutional.

1 Munn v. State, 1 Ga. 243; Aymette o. State, 2 Humph. 154; State o. Buzzard, 4 Ark. 18; State v. Reid, 1 Ala. 612; State o. Mitchell, 3 Blackf. 229; State o. Jumel, 13 La. Ann. 399; State v. Smith, 11 La. Ann. 633; English o. State, 35 Tex. 472 (14 Am. Rep. 374); State v. Wilforth, 74 Mo. 528 (41 Am. Rep. 330). In Haile v. State, 38 Ark. 564 (42 Am. Rep. 3), a statute was held to be constitutional which prohibited the carrying of army pistols, unless uncovered and in the hand.


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§ 140d. Miscellaneous regulations of the use of personal property. – In Missouri, a municipal ordinance conferred upon one person the right to remove and appropriate all carcasses of animals found in the city and not slain for food, to the exclusion of the owner. The statute was subjected to judicial construction, and it was held to be unconstitutional, so far as it applied to carcasses, which have not become a nuisance, although not slain for use as food. As long as the carcasses of animals are not a nuisance to the public, because of their effect upon the public health, they are as much protected by constitutional guaranties, as the live animals.

The agricultural communities of the South suffer greatly from the depredations of thieves on the unharvested crop, and particularly from the stealing of cotton. As a means of checking this pillage, a statute was enacted in Alabama, which made it unlawful for any person to transport or move after sunset and before sunrise of the succeeding day,” within certain counties. “ any cotton in the seed,” but permitted the owner or producer to remove it from the field to the place of storage. This was held to be a reasonable police regulation, and not an unconstitutional interference with the rights of private property. It is a rather peculiar regulation, and may possibly be open to scientific objection, but it is no doubt constitutional. It is made in the interest of the farmer; and since the statute reserves to the owner or producer the right to remove the cotton after nightfall from the field to a place of storage, the regulation may be considered as being confined to the prohibition of all trading or dealing in cotton after sunset and before sunrise, and does not interfere with any other harmless use of it by the owner.

1 River Rendering Company v. Behr, 77 Mo. 91 (46 Am. Rep. 6). ? Davis v. State, 68 Ala. 58 (44 Am. Rep. 128).

§ 1400

SECTION 141. — Laws regulating use and keeping of domestic animals.

141a. – Keeping of dogs.
1416. - Laws for the prevention of cruelty to animals.

§ 141. Laws regulating use and keeping of domestic animals. The common law has always recognized a right of property in domestic and domesticated animals, the keeping of which serves some useful purpose, such as cows, sheep, fowls, horses, oxen, etc.; and now a certain right of property is recognized in every species of animal, which may be subjected to the control of man, whether they retain their wild nature, or whether it is completely subdued. The only difference between the right of property in a cow or other completely domesticated animal and in some wild or half-tamed beast, is the degree of care required in the keeping of them, in order to prevent injury to the public. For the common law required the owner of every kind of animal to so guard and keep him, as that no injury should result to another; and gave to the one injured a right of action for damages against the owner of the animal, if he had not exercised that degree of care which in ordinary cases may be required to avert an injury to others. Thoroughly domesticated animals, such as cattle, sheep, swine, and the like, which may reasonably be presumed to exhibit no vicious propensity, are at common law permitted to go at large, and the owner is only responsible for damages when he permits the animal to go at large, when he knows of his vicious propensity. For without such knowledge, he could not have anticipated any injury to others, and be was therefore guilty of no negligence. But all animals, whether tame or wild, are liable in quest of food to trespass upon the lands adjoining the highway; and the owner of an animal incurred at common law a liability for all trespasses made by animals which he right to kill a fierce or dangerous dog, if it is kept on the owner's premises and not allowed to go at large.?

i Cooley on Torts, 348–350. 2 Cooley on Torts, p. 341-348, and cases there cited.

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” legisla

“ tion 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

407; Dunlap o. Synder, 17 Barb. 561 ; People v. Board of Police, 15 Abb. Pr. 167; Brown 0. Carpenter, 26 Vt. 638; Woolf 0. Chalker, 31 Conn. 121. · Perry v. Phipps, 10 Ired. L. 259,

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