Julienne v. Mayor of Jackson

1. Municipal Corporation. Police power. Destruction of dogs running at large. A municipality may, in the exercise oí its police power conferred by charter, provide by ordinance that unmuzzled dogs running at large shall be killed. Such ordinance violates no constitutional right of the owner, although his property should be destroyed without notice. 2. Same. Meaning of “ running at large." Case. A dog found in the street unmuzzled, and unaccompanied by its owner or master, will be deemed to be “running at large” within the meaning of such ordinance, and may be lawfully killed by a policeman, although it had, escaped confinement and the owner was little more than a square away in iiursuit.

From the circuit court of the first district of Hinds county. Hon. J. B. Chrisman, Judge. J. C. Julienne brought this action before a justice of the peace to recover of the city of Jackson for killing a dog, which was shot, as he contends, unlawfully‘by the chief of police of said city. The charter of the city conferred the power to provide for the confinement and destruction of dogs when deemed necessary. An ordinance of the city provided that between certain dates mentioned all dogs running at large without a muzzle and tag should be destroyed by any policeman of said city. The plaintiff’s dog was shot by the city marshal, usually called chief of police, under the following circumstances, which are substantially taken from an agreed statement of facts upon which the case was tried in the circuit court: The plaintiff resided near the business portion of the city, and the dog was kept upon his premises securely tied to prevent him from running on the streets. On a certain morning, during the time when the ordinance stated was in force, the dog succeeded in breaking his collar, and, without the knowledge of any of the family or servants of plaintiff, leaped over the fence and wandered down the street, and on one of the business streets of the city was discovered by the chief of police and shot. The dog was without muzzle or tag, and none of the circumstances of the escape were known to the officer. About ten minutes after the dog left the premises, the wife of plaintiff discovered that the dog had gone, and, learning the direction he had taken, hurried in pursuit, intending to return him to the yard. When the dog was shot she was little more than a square, about one hundred yards, away. A. number of persons witnessed the killing, and several bystanders asked the officer not to shoot the dog, and one of them proffered to take charge of it and restore it- to the owner. It is admitted, however, that the evidence is conflicting as to whether this offer was heard or could be heard by the officer. The testimony of the officer was that he did not hear it. It is further admitted that in killing the dog the officer acted under a sense of his official duty. The dog was highly bred, and thoroughly trained for the field, and belonged to a class that had a market value, and was entirely harmless. Plaintiff had judgment in the justice’s court, but in the circuit court the cause was submitted to the court without a jury, which, on the facts above stated, rendered judgment for the'defendant. 1. When killed, the dog was not running at large within the meaning of the ordinance. Evei’y unusual and accidental escape of a dog without the fault of the owner cannot constitute a running at" large, especially when the dog is closely pursued by the owner. The same ordinance which enjoins the destruction of the animal provides a penalty against the owner for permitting it to run at large. The purpose of the ordinance was to prevent dogs indiscriminately using the streets. It applies to dogs that are estray. See 63 111., 88; 50 Yt., 130; 52 Cal., 653. In view of the offer of the by-stander to take charge of the dog, the killing was unnecessary, arbitrary and wanton. 2. The city did not have, and could not be given, the arbitrary power of destroying animals without notice to (he owner. The charter should be construed and limited to -casonable' remedies. Impounding is a complete and effectual remedy in cases like this. 3. Dogs are property. They are daily bought and sold in the market; and, although regulations as to the control of dogs come within the police power, they cannot be destroyed without actual or constructive notice to their owner. Under the police power a dog cannot be killed unless it is necessary for the safety of the-public. It is admitted in this case that the dog was harmless. The ordinance is valid and constitutional. Teideman on Police Power, 907 et seq.; 100 Mass., 136; 13 Tex., 58; 3 Tex., 489 ; Cooley, Con. Lim., 741; 18 Pick., 363; 42 N. IT., 373; 16 Wis., 317; 1 Mete. (Mass.), 555; 10 lb., 382;' 4 Black. Com., 236. In this case it is not pretended that the owner had any sort of control over the dog. The effort to regain the dog was unknown to the officer. Whether or not the officer heard the proffer by the by-stander to take charge of the dog cannot affect the question. 1 Mete., 555. The duty of the officer was to destroy the dog. If he were permitted to turn over dogs to any certain by-stander, this would result in endless confusion and provoke favoritism on the part of officers. Such an administration of law could not be tolerated. In the above decisions the killing of dogs under police regulations was sustained under regulations more stringent than this ordinance, and was held to be violative of no constitutional rights.