People v. Shields

Cochrane, J.:

This is an action to recover a penalty for violating an order of the Commissioner of Agriculture.

Section 91 of the Agricultural Law (Consol. Laws, chap. 1 [Laws of 1909, chap. 9], as 'amd. by Laws of 1909, chap, 313) specifies that when any infectious or contagious disease affecting domestic animals shall exist the Commissioner “shall issue and. publish a notice, stating that a specified infectious or contagious disease exists in the State or in any designated county or other geographical district of the State, and warning, all persons to seclude in the premises where they may be at the time, all animals within the State or within such county or district or an adjoining county or district, that are of a kind susceptible to contract such disease, and ordering all persons'to take such precaution against the spreading of the disease, as the nature thereof may in his judgment render necessary or expedient, and which he may specify in such notice.”

Pursuant to said statute the Commissioner duly published a notice declaring that an infectious or contagious disease known as rabies existed in the towns of Madison and Eaton in Madison county, and ordering all persons within said towns who owned or harbored dogs to “ so seclude, confine or muzzle such dogs as to make it impossible for such dogs to bite or inoculate other animals or persons.” It is admitted that said notice was duly published and.that the defendant, who lived within the said town of Madison, had actual notice thereof and it is not questioned that the order requiring the seclusion, confinement or muzzling of dogs was within the power of the Commissioner to make.

Section 97 of the Agricultural Law (as amd. by Laws of 1909, chap. 352) provides in part as follows: “ Any person violating, disobeying or disregarding the term,of any notice, order or regulation issued or prescribed by the Commissioner under this article shall forfeit to the People of the State the sum of not less than fifty dollars nor more than one hundred dollars for every such violation.”

It is also undisputed that the defendant was the owner of a dog, and that in violation of the said order of the Commissioner the said dog was running at large and unmuzzled, and while so running at , large was killed by an officer charged with the duty of enforcing the quarantine which the Commissioner had established.

The defense is that the defendant had properly muzzled the dog and that his wife, contrary to his instructions, had removed the muzzle for the purpose of feeding the animal and that his children had then permitted it to escape from the house and thus run at large. These facts, in my opinion, are insufficient to constitute a defense. The order of the Commissioner, which is conceded to have been within his statutory power, was intended to place upon the defendant the responsibility of so guarding his dog that it would be impossible for it to bite or inoculate animals or persons. It is provided in section 7 of the act that the intent is immaterial, in any prosecution for. a violation of the provisions of the act. To relieve the defendant from responsibility because of the acts or omissions of members of his household would permit an easy method of evading the statute and the order of the Commissioner. The

disease of rabies in dogs is one of tlie most virulent and dangerous known, and it is not unreasonable that the owner of a dog within the quarantined district should be held to be responsible for the acts of those under his control rather than that the public should be placed at the mercy of an irresponsible ownership of the animals affected or likely to be affected with the disease. No unusual hardship is placed upon the owner .of a dog by' the establishment of. such a rule. Even at. common law, if this had been a vicious dog to the knowledge of the defendant and had injured any person, the facts urged as á defense to this action would not constitute a defense in an action for damages by the person so injured. The gravamen of such an action is the harboring of a vicious animal with knowledge of its propensities, and it is made the duty of an owner to keep it secure at his1 peril, and he is not relieved from such duty by the wrongful acts of his servants or agents. (Muller v. McKesson, 73 N. Y. 195; Malloy v. Starin,. 191 id. 21, 25, 28.) The foregoing illustration serves to demonstrate that the duty of keeping the dog in question confined or muzzled was not an unreasonable or unusual burden placed upon the defendant, and that it is not unreasonable or unduly burdensome that the defense herein should fail. Particularly is this true in view of the humane purpose of the statute and the beneficent object it was designed to accomplish, viz., the safety of the community and the protection of human life. We need not now determine what acts or'circumstances beyond the control of the defendant might excuse him from a compliance with the order of the Commissioner. It is quite clear that he should not be excused by reason of the .facts alleged as a defense, herein.

It is further urged by the appellant that assuming there was a question for the jury the case was submitted to them on an improper theory. For the reasons above stated it is unnecessary to consider this question.

The judgment and order must be reversed'and a new trial granted, with costs to the appellant to- abide the event,

All concurred, except Houghton, J., dissenting in opinion, in which Sewell, J., concurred.