Statement of the Case.

SENTELL v. NEW ORLEANS AND CARROLLTON RAILROAD COMPANY.

ERROR TO THE COURT OF APPEALS FOR THE PARISH OF ORLEANS, IN THE STATE OF LOUISIANA.

A state statute providing that no dog shall be entitled to the protection of the law unless placed upon the assessment rolls, and that in a civil action for killing a dog the owner cannot recover beyond the value fixed by himself in the last assessment preceding the killing, is within the police power of the State.

THIS was an action originally instituted by Sentell in the civil district court for the Parish of Orleans, to recover the value of a Newfoundland bitch, known as "Countess Lona," alleged to have been negligently killed by the railroad company.

The company answered, denying the allegation of negligence, and set up as a separate defence that plaintiff had not complied either with the requirements of the state law, or of the city ordinances, with respect to the keeping of dogs, and was, therefore, not entitled to recover. The law of the State

was as follows:

"SECTION 1. Be it enacted by the General Assembly of the State of Louisiana, That sec. (1201) twelve hundred and one of the Revised Statutes of Louisiana be amended and reenacted so as to read as follows: From and after the passage of this act dogs owned by citizens of this State are hereby declared to be personal property of such citizens, and shall be placed on the same guarantees of law as other personal property; provided, such dogs are given in by the owner thereof to the assessor.

"SEC. 2. Be it further enacted, etc., That no dog shall be entitled to the protection of the law unless the same shall have been placed upon the assessment rolls.

Counsel for Plaintiff in Error.

"SEC. 3. Be it further enacted, etc., That in civil actions for the killing of or for injuries done to dogs, the owner cannot recover beyond the amount of the value of such dog or dogs, as fixed by himself in the last assessment preceding the killing or injuries complained of.

"SEC. 4. Be it further enacted, etc., That all laws in conflict with this act be repealed.

Approved July 5, 1882." Laws of 1882, p. 160.

By the city ordinance, adopted July 1, 1890, No. 4613, "no dog shall be permitted to run or be at large upon any street, alley, highway, common or public square within the limits of the city of New Orleans; provided that this section shall not apply to any dog to which a tag, obtained from the treasurer, is attached." By section 8 the treasurer was directed to furnish metal dog tags to all persons applying for the same at the rate of two dollars each, available only for the year in which they were issued.

Plaintiff denied the constitutionality of the state act; and the court charged the jury that the fact that the dog was not tagged, as required by the city ordinances, could not affect the right of the plaintiff to recover; that the above act of the legislature was unconstitutional as destructive of the right of property; and that a dog, being property, a law which requires that property should not be protected unless listed for taxation, was in conflict with the Constitution of the United States, providing that no person shall be deprived of his life, liberty or property without due process of law. The jury returned a verdict in favor of the plaintiff for $250, upon which judgment was entered.

The case was carried to the Court of Appeals, which reversed the judgment of the trial court, and entered judgment in favor of the defendant, holding that plaintiff should have shown a compliance with the law of the State and the ordinances of the city as a condition precedent to recover. Whereupon plaintiff sued out a writ of error from this court.

Mr. George Denègre and Mr. Omer Villeré for plaintiff in

error.

Opinion of the Court.

Mr. Henry P. Dart for defendant in error.

MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.

This case turns upon the constitutionality of a law of the State of Louisiana requiring dogs to be placed upon the assessment rolls, and limiting any recovery by the owner to the value fixed by himself for the purpose of taxation.

The dog in question was a valuable Newfoundland bitch, registered in the American Kennel's stud-book, and was kept by her owner for breeding purposes. It seems that while following him in a walk upon the streets, she stopped on the track of the railroad company, and, being otherwise engaged for the moment, failed to notice the approach of an electric car which was coming toward her at great speed; and, being moreover heavy with young, and not possessed of her usual agility, she was caught by the car and instantly killed. The Court of Appeals was evidently of opinion that her owner, knowing of her condition, should not have taken her upon a public thoroughfare without exercising the greatest care and vigilance, and that the accident was largely due to a want of prudence upon his part. The facts, however, were not properly before the court, and the opinion was put upon the ground that the state law was constitutional and valid as a police regulation to prevent the indiscriminate owning and breeding of worthless dogs. The judges also annexed a certificate that the decision was reversed upon the ground that the law was constitutional, and that no other point was passed upon.

By the common law, as well as by the law of most, if not all, the States, dogs are so far recognized as property that an action will lie for their conversion or injury, 2 Bl. Com. 393; Cummings v. Perham, 1 Met. 555; Kinsman v. State, 77 Indiana, 132; State v. McDuffie, 34 N. H. 523; Parker v. Mise, 27 Alabama, 480; Wheatley v. Harris, 4 Sneed, 468; Dodson v. Mock, 4 Dev. & Bat. 146; Perry v. Phipps, 10 Ired. Law, 259; Lentz v. Stroh, 6 S. & R. 33; although, in the absence of a statute, they are not regarded as the subjects of

Opinion of the Court.

1872 Gevers stolate

imperfect similar

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larceny. 2 Bish. New Crim. Law, § 773; Case of Swans, 7
Coke, 86, 91; Norton v. Ladd, 5 N. H. 204; Findlay v. Bear,
8 S. & R. 571; People v. Campbell, 4 Parker C. C. 386; State
v. Doe, 79 Indiana, 9; Ward v. State, 48 Alabama, 161; State
v. Lymus, 26 Ohio St. 400; State v. Holder, 81 N. C. 527.
The very fact that they are without the protection of the
criminal laws shows that property in dogs is of an
or qualified nature, and that they stand, as it were, between
animals feræ naturæ in which, until killed or subdued, there
is no property, and domestic animals, in which the right of
property is perfect and complete. They are not considered.
as being upon the same plane with horses, cattle, sheep and
other domesticated animals, but rather in the category of cats,
monkeys, parrots, singing birds and similar animals kept for
pleasure, curiosity or caprice. They have no intrinsic value,
by which we understand a value common to all dogs as such,
and independent of the particular breed or individual. Unlike
other domestic animals, they are useful neither as beasts of
burden, for draught (except to a limited extent), nor for food.
They are peculiar in the fact that they differ among themselves
more widely than any other class of animals, and can hardly
be said to have a characteristic common to the entire race.
While the higher breeds rank among the noblest representa-
tives of the animal kingdom, and are justly esteemed for
their intelligence, sagacity, fidelity, watchfulness, affection,
and, above all, for their natural companionship with man,
others are afflicted with such serious infirmities of temper as
to be little better than a public nuisance. All are more or less
subject to attacks of hydrophobic madness.

As it is practically impossible by statute to distinguish between the different breeds, or between the valuable and the worthless, such legislation as has been enacted upon the subject, though nominally including the whole canine race, is really directed against the latter class, and 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. Acting upon the principle that there is but a qualified prop

Opinion of the Court.

erty in them, and that, while private interests require that the valuable ones shall be protected, public interests demand 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 powers of the several States. Laws for the protection of domestic animals are regarded as having but a limited application to dogs and cats; and, regardless of statute, a ferocious dog is looked upon as hostis humani generis, and as having no right to his life which man is bound to respect. Putnam v. Payne, 13 Johns. 312; Hinckley v. Emerson, 4 Cow. 351; Brown v. Carpenter, 26 Vermont, 638; Woolf v. Chalker, 31 Connecticut, 121; Brent v. Kimball, 60 Illinois, 211; Maxwell v. Palmerton, 21 Wend. 407.

Statutes of the general character of the one in question. have been enacted in many of the States, and their constitutionality, though often attacked, has been generally, if not universally, upheld. Thus in Tower v. Tower, 18 Pick. 262, an act which authorized "any person to kill any dog or dogs found, and being without a collar," was construed to authorize the killing of a dog out of the enclosure of his owner, although he was under his immediate care, and this was known to the person killing the dog.

In Morey v. Brown, 42 N. H. 373, a statute providing that no person should be liable for killing a dog found without a collar with the name of the owner engraved thereon, was held to justify the killing, although the defendant had actual notice of the ownership of the dog found without such collar. Plaintiff claimed that the act was unconstitutional, but the court held that it was not an act to take private property for public use, or to deprive parties of their property in dogs; but merely to regulate the use and keeping of such property in a manner which seemed to the legislature reasonable and expedient. "It is a mere police regulation, such as we think the legis lature might constitutionally establish." To the same effect are Carter v. Dow, 16 Wisconsin, 317; Mitchell v. Williams, 27 Indiana, 62; Haller v. Sheridan, 27 Indiana, 494.

The statutes of Massachusetts, from the earliest colonial