414 
FORESl" AND STREAM. 
[May 21, 1898. 
he Mennel 
Some Dog: Law. 
The importance of the case recently determined in this 
State, denying the authority of societies to destroy un- 
-licensed dogs summarily, is such that we have procured 
the full text of the decision, which runs as follows: 
APPELLATE DIVISION, THIRD DEPARTMENT. 
Frederick Fox and M. L. Evans, Appellants, vs. The 
Mohawk and Hudson River Humane Society^ Re- 
spondent. 
Appeal from a judgment in favor the defendant, 
entered in Albany county upon the decision of the court 
made upon the trial without a jury. 
The plaintiff, the owner of four valuable dogs within 
the corporate limits of the city of Albany, refused to 
take or pay the defendant for a license for his dogs, and 
brought this action to restrain the defendant from seiz- 
ing, killing or disposing of them, which the defendant, 
because of plaintiff's refusal, was about to do. 
The defendant is a corporation created by and under 
Chapter 292, Laws of 1894, having its principal place of 
business in the city of Albany, and having the powers 
given generally to societies for the prevention of cruelty 
to children, and to societies for the prevention of cruelty 
to aniamls. Chapter 448, Laws of 1896, purports to 
confer upon the defendant the powers which it threatens 
to exercise in respect of plaintiffs dogs. The plaintiff 
challenges the constitutionality of the act. The act 
is as follows : 
Section 1. \ Every person who owns or harbors one or more 
dogs within the corporate limits of any city having a population 
of more than twenty thousand and less than eight hundred thou- 
sand, where a duly incorporated society exists, or may hereafter 
exist, for tlie prevention of cruelty to animals, except m the City 
of Buffalo, shall prociu-e the yearly license for each animal, pay- 
ing the sum of one dollar for each one, as hereinafter provided; 
in applying for such license the owner shall state in writing the 
name, sex, breed, age, color and markings of the dog for which 
a license is to be procured. 
Sec. 4. Every dog so licensed shall, at all times, have a collar 
about his neck, with a metal tag attached thereto, bearing the 
number of the license stamped thereon. Such tag shall be sup- 
plied to the owner with the certificate of license and shall be 
of such form and design as the society empowered to carry out 
the provisions of this act shall designate; duplicate tags may 
be issued only on proof of loss of the original, and the payment 
of the sum of one dollar therefor. 
Sec. 5. Dogs not licensed pursuant to the provisions of this 
act shall be seized, and if not redeemed within forty-eight hours, 
may be destroyed or otherwise disposed of at the discretion of 
the society empowered and authorized to carry out the provisions 
of this act. 
Sec. 6. Any person claiming any dog, seized under the pro- 
visions of this act, and proving ownership thereof, shall be en- 
titled to resume possession of the animal on the payment of the 
sum of two dollars; provided, however, that such claim shall be 
made before the expiration of the forty-eight hours provided in 
section 5. 
Sec. 7. The incorporated society, organized for the prevention 
of cruelty to animals, and having jurisdiction in either of such 
cities, is hereby empowered and authorized to carry out the pro- 
visions of this act; and such society is further authorized to 
issue licenses and renewals, and to collect the fees for such, as 
is herein prescribed, which fees are to be used by such society 
toward defraying the cost of carrying out the provisions of this 
act and maintaining a shelter for lost, strayed or homeless animals, 
and for its own purposes. 
Landon, J. 
This case differs from People v. Gillespie, herewith 
decided. There the question was whether the owner of 
a dog upon which he had paid the tax was deprived of 
due process of law, in respect of the penalty declared by 
Section 125 of the county law, upon his refusal to obey 
the order of a justice of the peace directing him to kill 
his dog immediately. We held that he was not, because 
upon being sued for the penalty, he would have his day 
in court upon all the material facts. 
Here the plaintiff's dogs are not alleged to be danger- 
ous; he refuses to buy a license for them from the defend- 
ant, and the defendant, because of his refusal, threatens 
to kill the dogs, or confiscate them. 
The field of the defendant's jurisdiction is the city of 
Albany. The county law which provides for the taxa- 
tion of dogs, by section 11 1 exempts the city of Albany 
from its provisions. Chapter 448, Laws of 1896, requires 
the owner of every dog within the city to procure a year- 
ly license for it and pay the defendant $1 therefor, under 
penalty, upon refusal, of death to the dog, or its confis- 
cation, and vests the execution- of the law and the pro- 
ceeds of the license or sale of the dog in the defendant. 
No doubt the Legislature may enact that no one shall 
keep a dog unless licensed to do so, in like manner as 
it may enact that no one shall sell liquor unless licensed 
to do so. That this is a proper exercise of the police 
power is well settled. But the important question here 
is: Suppose he refuses to take out a license for his dog, 
can the dog be summarily killed or confiscated withottt 
any process of law whatever? When the law of the State 
was that dogs were not prima facie property, but must 
be proved to be valuable before they could be treated 
as such, it followed that the killing or confiscation of a 
dog, prima facie, affected no property right, and was 
no legal grievance. (Sentel! v. N. O. & C. R. R. Co., 
166 U. S., 6g8.) But now dogs in this State are proper- 
ty (Mullaly v. People, 86 N. Y., 365), and of course 
within the laws for the protection of property. If one 
sells liquor without a license, the liquor, in the absence 
of a law enacted before it was procured declaring it 
to be a nuisance per se, cannot be confiscated in this 
State without due process of law. (Wynehamer v. Peo- 
ple, 13 N. Y., 378.) 
It is true that certain instruments and appliances found 
in use in violation of law, as fishing nets in prohibited 
waters, i. e., in flagrante delicto, may be destroyed as 
nuisances by the proper officer (not by any corporation), 
provided they are of small value (Lawton v. Steele, 119 
N. Y., 226; s. c, 152 U. S., 133), but if of considerable 
value, as a bawdy house or a smuggling vessel, cannot 
be destroyed without due process of law — ib., a distinc- 
tion which tnay be right, however much we may doubt 
that the right differs with difference in values. 
Now it is plain that whether a dog is licensed or not 
does not affect its character. A good dog is none the 
less so, though it wear no collar. The statute of 1896 
does not declare the keeping of an unlicensed dog a 
misdemeanor, nor does it declare that the dog that wears 
no collar is presumptively a nuisance. The plaintiff 
does not put his dogs to an improper use. They are 
neither vicious nor dangerous. There is, therefore, no 
ground upon which we can assume that the plaintiff's 
dogs are a nuisance, and hence the defendant's right to 
kill them must rest upon some other basis, or be denied 
altogether. 
Unlike the county law, the act of 1896 prescribed no 
money penalty for plaintiff's refusal to take out a license 
lor his dogs. If we assume that the killing or confisca- 
tion of the plaintiff's dogs is the penalty prescribed for 
his disobedience of the statute, then the same reasons 
which entitle him to his day in court before a penalty 
in money can be exacted apply, before the penalty in 
dogs can be exacted. In neither case can he be deprived 
of his property without due process of law. The cur- 
rency in which the penalty is exacted cannot affect the 
principle. 
But there is another ground upon which we think the 
plaintiff can rest his action. The act of 1896 assumes to 
vest in the defendant, a private corporation, the execu- 
tion of certain police powers of the State, and thus in 
effect to make the defendant a public officer. 
The constitution of the State provides for the election 
and appointment of certain officers, and vests the Leg- 
islature with power to provide for the election or ap- 
pointment of the rest. "AH city, town or village officers 
whose election or appointment is not provided for by 
this constitution, shall be elected by the electors of such 
cities, towns and villages, or of some division thereof, 
or appointed by such authorities thereof, as the Legisla- 
ture shall designate for that purpose." (Art. 10, Sec. 
2.) If a corporation was eligible to a eity office, the 
Legislature could not appoint it. 
But a corporation is not eligible to any public office, 
for the reason, if there were no others, that it cannot 
take the oath of office, that it is not a human, but a 
legal being; it has legal attributes only, and the law 
cannot attribute to it moral qualities, although it may 
try to secure some respect for tliem under penalties 
which touch its pocket or franchise. It is obvious that 
the exectttion of police regulations, which affect the life, 
liberty, property, health and happiness of human beings, 
should be vested in human beings, and not in such legal 
entities as cannot be endowed with moral qualities, and 
cannot be adequately punished for official misconduct. 
It is true, as the defendant contends, that the Penal 
Code, Sec. 668, provides: "The officers and agents of 
all duly incorporated societies for the prevention of 
cruelty to animals are hereby declared to be peace officers 
within the provision of Section 154 of the Code of Crim- 
inal Procedure." Section 154 provides that "A peace 
officer is a sheriff of a county, or his under sheriff, or 
deputy, or a constable, marshal, police constable or po- 
liceman of a city, town or village." Whether the officers 
or agents of the defendant within the terms of the coa- 
stitution above cited can thus be appointed peace officers, 
we need not inquire, since none of them is a party to this 
action, and the defendant does not justify under any of 
them. 
The defendant contends, however, that Chapter 448, 
Laws 1896, under which it claims the powers here called 
in question, creates it a "subordinate govermental 
agency." If by that assumed designation it is meant 
that without being a police or peace officer, it can never- 
theless execute the police powers conferred by the act, 
than it is incumbent upon us to discover whether such 
powers are official powers, or the mere incident of them, 
such as the officer or department charged with the exe- 
cution of the main power may' delegate to a non- 
official subordinate, servant or helper. 
There is no doubt that public officers can in many cases 
employ corporations to do work for the Government. 
Thus banks or trusts companies can be made fiscal 
agents for the custody of public or trust moneys to be 
disbursed upon proper official vouchers. Mails and 
Government property may be transported by railroad 
companies. Corporations may become contractors for 
public works. Water, gas, and electric companies can 
supply the Government with their products or services. 
Such matters are regulated by contract, or by statutes 
or statutory regulations having the force of a contract. 
The Government in the discharge if its duties must be 
the employer of various kinds of service or labor, from 
that of the common laborer to that of the expert in art 
and science; but the employment of such persons is, 
with possibly rare exceptions, committed by law to 
some officer or department. Within the restrictions 
imposed by the constitution the State may dispense char- 
ity through the meditim of the private charitable cor- 
porations selected by it. 
Such corporations or persons thus employed may, per- 
haps without impropriety, be designated as "subordi- 
nate governmental agencies." 
In the police department, if it is necessary- to kill dogs, 
perhaps the proper officer can employ some one for the 
purpose, and thus we would have another instance of 
"subordinate governmental agency," differing in dignity 
and degree from those first mentioned, but not in prin- 
ciple. 
In Trustees of Exempt Firemen's Fund v. Roome, 93 
N. Y., 313, a case mttch relied upon by the defendant, the 
phrase "subordinate governmental agency" was applied 
to the plaintiff as justifying its right to receive a license 
fee or tax which the State had imposed upon certain 
foreign insurance companies doing business in the city 
of New York, as the price of admitting them to the priv- 
ilege of doing business within this State. The right of 
the State to impose the tax or license fee for its own pur- 
poses was held to be clear. The right of the plaintiff 
to receive and use it for its own corporate purposes was 
challenged, among other reasons, because it was a gift 
of public money to a corporation, and thus forbidden 
by the constitution. (Art. 8, Sec. 9.) The court held 
that it was not a gift, but a payment hy the State to the 
exempt firemen, members of the plaintiff corporation, 
of the money the State morally owed them for their past 
services, and thus an appropriation to the public use, and 
that in giving the money to the corporation the State 
selected it as "a subordinate governmental agency, em- 
ployed by the State to fulfill its obligations due to the 
exempt firemen for the service the3'' had rendered at 
the request and by the procurement of the State." 
It is obvious that the corporation plaintiff in that case 
had simply the function of collecting certain moneys 
appropriated to it, and applying them to the_ uses of 
the exempt firemen, members of the corporation. In 
this sense, the term "subordinate governmental agency" 
has a meaning much too narrow to cover the functions 
which the act of 1896 seeks to confer upon the defendant. 
The defendant by its answer alleges "That the defend- 
ant has, and has exercised, and at the time of the com- 
mencement of this action was, and now is exercising 
certain police powers conferred upon it by the statutes 
of the State of New York and more particularly by Ar- 
ticle 5 of Chapter 559 of the Laws of the State of New 
York of 1895, and by Section 668 of the Penal Code 
of the State of New York;" "that this society has en- 
tered upon the execution of the duties prescribed by 
Chapter 448 of the Laws of 1896, providing for the 
licensing of dogs." 
The defendant admitted upon the trial "That deferid- 
ant, unless restrained by order of the court, will seize 
and destroy or otherwise dispose of the property of the 
plaintiff." 
Under the act of 1896, no dog in the city of Albany has 
a prima facie right to live unless it wears the collar of 
the defendant. No person has a right to own or harbor 
a dog except licensed by defendant. By paying the de- 
fendant $1, a person can get a license for his dog, how- 
ever mad, vicious or diseased it may be. If he does not 
choose to pay, the defendant can confiscate the dog, un- 
less redeemed within forty-eight hours by paying $2. 
The defendant need not kill the dogs it confiscates, but 
may sell them, and the defendant can manage its business 
upon a basis the most thrifty for itself, thus placing the 
public service at the mercy of corporate interests. 
It is thus seen that the powers assumed to be vested in 
the defendant are not merely to render services incidental 
to the execution of the powers of some other official de- 
partment, such as the receipt of a tax which the defendant 
ought to pay, but they embrace the execution of all the 
powers which the State has suspended over the plaintiff's 
rights and liberties in respect of his keeping this kind 
of property, inclttding those of a discretionary kind 
authorizing its destruction or sale; in short, police 
powers. The grant of a license is the exercise of sov- 
ereign power. To require the individual to pray a 
private corporation for a sovereign favor seems to be 
contrary to the fundamental principles of popular gov- 
ernment. 
No attempt was made in the case cited to seize or 
coitfiscate the defendant's property without giving him 
his day in court. The phrase "subordinate governmental 
agency" which was there used with great hesitation and 
caution would be misapplied and abused if perverted into 
a justification of the corporate invasion of the people's 
right to be govei-ned by officers chosen from among 
themselves, and froin the like invasion of their right to 
be secure from deprivation of their property without 
due process of law. 
We have no doubt the defendant is a most worthy 
institution, but however great its merits, they cannot 
obscttre the vice of such legislation. 
For these reasons, without passing upon others urged 
by the plaintiff, we think the judgment should be re- 
versed, and judgment directed for the plaintiff. If, how- 
ever, the defendant request a new trial, in place of the 
direction for judgment, the order may be so entered, 
costs to abide the event. 
Com. J. PiERPOisT Morgan, of the New York Y. C, 
whose steam yacht Corsair II. has just been sold to the 
Government, has already taken steps to provide himself 
with another ship. The new boat will naturally be de- 
signed by J. Beavor Webb, who designed the second 
Corsair. The dimensions reported are 252ft. l.w.l., 33ft. 
6in. beam, 14ft. draft, and about 1,400 tons measure- 
ment. 
In consequence of the reports of Spanish war vessels 
off the coast in the vicinity of Nantucket, the channels 
of New York Harbor are now protected by extra con- 
tact mines set directly in the channels at night and re- 
moved each morning. Every mine has half a dozen 
primers on the top, requiring but a 7lb. blow to explode 
the mine. 
Windward, the missing Arctic yacht, arrived safely 
at New York on May 11 after a voyage of fifty-two 
days from London. She is a sturdy-looking craft, spe- 
cially built for Arctic work, and one of the strongest 
vessels afloat. Her length is Ii8ft., beam 28ft., and 
draft 16ft. She is now off Tompkinsville, S. I., but will 
go to the Brooklyn Navy Yard to refit, sailing in July. 
A NUMBER of yachts have recently been added to the 
first lot purchased by the Government, including the new 
Felicia, Comanche, Dorothea, Illawarra, Atlanta, Aileen. 
and Enquirer. The latter yacht hails from Buffalo, and 
had to come to New York by way of the St. Lawrence 
River and Gulf. Free Lance, steam yacht, presented to 
the Government by F. Augustus Schermerhorn, is now 
in use by Admiral Erben, in charge of the patrol fleet 
of New York harbor. 
The Quincy Challenge Cttpf 
The defender of the Quincy Y. C. challenge cup, de- 
signed by J. R. Purdon, is now well under way at Law- 
ley's yard, South Boston. She is a modern skimming 
dish of the Glencairn type, of very light construction. 
The following dimensions are given for her, and also 
the Mower boat, the challenger, and the Crane boat, 
which may also race for the cup: 
Designer. Over all. L.W.L. Beam. Draft. Total S. A. Mainsail. 
Purdon.... 86ft. 21ft. tOft. Tin. 850sq. ft. 60Osq. ft 
Mower. . . .29ft. 6in. 18ft. Sft. 6in. TOOsq. ft. 550sq. ft. 
Crane 83ft. 18ft. 8ft. 6iii. 6%in. 620sq. ft. 500sq. ft. 
It appears that the challenger is smaller by 3ft. than 
the defender. Though no mention of time allowance is 
made in the declaration of trust, the challenger will ap- 
parently receive time from the defender. The fact that 
the competitors will be of different classes, and that the 
result will depend on time allowaance, will do much to 
lessen the interest in the races. 
