"The question is not one of ethics or morality, but the extent of the authority of the statute as a rule of con duct. " In the case under consideration three judges dissented. It is amusing to note how willing this court is to read a prohibition against marriage out of the State into the statute, and how unwilling it is to read into the statute of descent and distribution a prohibition against a murderers inheriting from his victim.
Dog-Killing. — A case for warm weather is Hagerstown v. Witmer, Maryland Court of Appeals, 39 L. R. A. 649, holding that an ordinance prohibit ing dogs from running at large on the streets and alleys of a city is within the general power to pass all ordinances necessary for good government, and for the preservation of peace and good order and the protection of the lives and property of citizens; and an ordinance providing that a dog seized while run ning at large shall be killed if not ransomed by pay ment of $1 before 10 o'clock of the morning after it has been detained twenty-four hours, and providing for a notice of the seizure to be given to the owner of any dog having a collar with the owner's name thereon, is not unconstitutional, or so unreasonable that the court can hold it void. The court said : — "It is true that dogs are now generally recognized as property. At common law civil actions could always be maintained for their recovery, although they were not re garded as subjects of larceny. But they are of a qualified kind of property, and such as is peculiarly the subject of police regulations. They have never ranked with such domestic animals as horses, cattle, and sheep, in which the owner has an unqualified and complete property. Various reasons have been assigned for the distinction, among which are that dogs are not used for food, husbandry, or as beasts of burden, but are generally used either for the mere whim or pleasure of the owner, or for such purposes as are cal culated to arouse their natural ferocity to some extent, such as hunting, protection, etc. But probably the most ootent reason for subjecting them to more control than ^ther domestic animals is the fact that they are so subject to hydrophobia, which is so readily communicated not only to other'animals, but to human beings, when bitten by a dog afflicted with that most terrible disease. Fortunately, cases arc rare, as compared with the number of dogs that are to be found in most places, but the damage that may be done by one mad dog is fearful to contemplate. Conced ing, then, that the appellant corporation has the power to prohibit dogs from running at large, and knowing that the law does make a distinction between them and other domestic animals, courts cannot say, as a question of law, that an ordinance of this character is wholly unreasonable and void, as we would have to do to set it aside. We cannot assume that it may not be reasonably necessary to prohibit dogs from running at large in a city the size of Hagerstown, nor can we say that can be accomplished with out some such provisions as those included in this ordinance. There are various kinds of dogs. Some are very valuable, others utterly worthless; some whose owners might readily come to their relief if seized for running at large, while there are others that either have no owners, or, if they have, would not be acknowledged by them if a line might be the result of such recognition. In the case of Sentell
v. New Orleans & C. R. Co. (decided by the Supreme Court of the United States on April 26, 1897), 166 U. S. 698, 41 L. ed. 11 69, the court said it was practically impossible by statute to distinguish between valuable and worthless dogs, and, ' acting upon the principle that there is but a qualified property in them, and that, while private interests require that the valuable ones shall be protected, public interests de mand that the worthless shall be exterminated, they have, from time immemorial, been considered as holding their lives at the will of the legislature, and properly falling within the police power of the several States.' Again, it was said that legislation on the subject ' is based upon the theory that the owner of a really valuable dog will feel sufficient interest in him to comply with any reasonable regulation designed to distinguish him from the common herd.' To show how far the courts of other States have sustained laws of this character, we will briefly refer to some of the cases. In Jenkins v. Ballantyne, 8 Utah, 245; 16 L. R. A. 689.it was held that an ordinance making a dog liable to be killed by any person unless registered and collared as provided by the ordinance, is not in violation of the constitutional- pro vision against depriving a person of property without due process of law, but is a valid police regulation. In N'ehr v. State, 35 Neb. 638; 17 L. R. A. 771, a statute was declared valid which provided that, if a dog be found run ning at large without a good and sufficient collar, with a metallic plate on which the name of the owner is plainly inscribed, no action could be maintained for killing him. In Blair v. Forehand, 100 Mass. 136; I Am. Rep. 94; 97 Am. Dec. 82, it was decided that authority to regulate the keeping of dogs under the penalty of having them sum marily destroyed, without previous adjudication, is within the police power vested in the legislature by the Constitu tion of the commonwealth. In Morey v. Brown, 42 N. II. 273, a statute providing that dogs may be summarily killed if found uncollared, etc., was held to be constitutional. In Julienne v. Jackson, 69 Miss. 34, it was held that a munici pal corporation may, in the exercise of the police power, provide by ordinance that unmuzzled dogs running at large shall be killed; that such ordinance did not violate the constitutional right of the owner, although his property is destroyed without notice. In State, Curtis, v. Topeka, 36 Kan. 76, it was decided that statutes and ordinances reg ulating, restricting, or prohibiting dogs from running at large in cities, and authorizing the summary killing of those so running at large were constitutional. In the case of Sentell v. New Orleans C. R. Co., 166 U. S. 698, many of the cases wc have cited were referred to, and the principles announced by them fully sustained. Among other reasons for such legislation that court said : ' Although dogs are ordinarily harmless, they preserve some of their hereditary wolfish instincts, which occasionally break forth in the destruction of sheep and other helpless animals. Others, too small to attack these animals, are simply vicious, noisy, and pestilent. As their depredations are often committed at night, it is usually impossible to identify the dog or to fix the liability on the owner, who, moreover, is likely to be pecuniarily irresponsihle. In short, the damages are usually such as are beyond the reach of judicial process and legis lation of a drastic nature is necessary to protect persons and property from destruction and annoyance. Such legis lation is clearly within the police power of the State. It ordinarily takes the form of a license tax, and the identifica tion of a dog by a collar and tag, upon which the name of the owner is sometimes required to be engraved; but other remedies are not uncommon. In Hubbard v. Preston, 90 Mich. 221, as reported in 15 L. K. A. 249, there is an ex cellent note on the subject, where many authorities arc collected. The cases are practically unanimous in holding that laws providing for the summary destruction of dogs at large contrary to statutes or ordinances are constitutional, and within the police power of the State."
