The evening times., 1900-03-12

Justice Barnard today decided that the
District Commissioners acted entirely
within the scope Of their authority In is
suing a proclamation on December ~
last. requiring that after that date all
dogs in the District should be muzzled.
The matter came up for consideration on
the petition of Thomas Edward Clark. who
asked the court to restrain Samuel Elm
stein. the Puundmaster from seizing. kill
ing. OF selling certain dog owned by the
complainant 1t was argued some time
ago. the petitioner being represented by
Attorney West Steeyer and the District by
A. b. Duvau. Clarence A. BTandenburs,
and A. Leftwiteh Sinclair, attorneys for
the Commissioners.
The opinion of the court disposing Of the
matter follows:
Justice Bnrnard's Opinion.
The complainant seeks by his bin in
this cause to have the defendant, who is
the Poundmaster OF the District. restrain
ed and enjoined from taking. impcunding,
killing, or selling his certain black ard
tan dog named Pet, on which he has paid
the usual license tax but on which he has
not put a muzzle as required by the order
of the Commissioners Of December l9,
1898 The bill AYERS that the defendant is
about to seize said dog, to impound him.
and to proceed to kill and sell him, AID
that he is about to do so under the color
of a recent order or proclamation OF The
Commissioners. which complainant char
acterizes as an enactment of law; and
contends that inasmuch as Congress mas,
under the Constitution the exclusive leg
islative power over this District, il cannot
delegate such power to the Commissioners.
and that therefore, said proclamation Is
void and cannot deprive him OF his prop
erty.
''On filing the bill a rule IVES issued re-
quiring the defendant to appear and show
cause, if any he had, why an injunction
should not issue as prayed. and on the re-
turn day of this rule. the defendant ap-
peared and filed a demurrer to the bill on
the ground that il does not state such a
case as entitled the complainant to any
relief
The bill AYERS that the dog in question
is valuable property although the value is
not stated. 1t also AYERS, substantially.
that the dog is personal property entitled
10 protection as such. the same being tax
able and the tax in this case having been
paid.
BY act Of Congress approved June 10.
1873. a tax was levied on all dogs IN this
District and its payment is enforced by
sezng dogs found at large without wear
ing the tax tag By section I Of this act.
il is made the duty OF the Commissioners
whenever good reasons appear for beliey-
ing that any dog or dogs in TIE District
are mad. to issue a proclamation requiring
that all dogs shall wear muEzles for pc
rio9 TO be therein defined. The said sec
tion then provides that any dog going al
large during the period defined by the
commissioners without such mUzzle shall
Pee taken by the POundmaster an1 impound-
"a subject 10 the provisions of section ..
which provides that Is dogs impOunded are
not redeemed within forty-eight hours by
payment OF s.. they shall be sold Of de-
stroyed.'
The court then cites that COPIES CT thu
uroclamation were made part Of the hll
and quotes the requirements made by the
order which II. brief is that all dogs within
the District shalt be made 10 wear q go0a
and substantial nuzzie fer a period OF siN
maajh..
The CoiupIaimnnt's Position.
The cumrlainanJs counsel contends tha.
it was beyond the power Of Congress tc
PASS III. law in question: and that if il hal
the power. the Commissioners could not
make such law imperative by proclama-
1ion. aud certainly the attempted legisia-
lion By proclamation is void for want OF a
Zreat seal which is required TO be ATTACHED
20 such document He further argues
that a dog is property within the meaning
of The Constitution and that such cannot
be seized and sold or destroyed as threat
,ned in This case for the alleged benefit OF
the public without just compensation and
due process Of law: and that as the de-
reudant threatens TO DO an unlawful act
by virtue Of his Office a bill for injunction
viii lie 10 restrain such official act.
Counsel for the defendant contend that
the law i'm question was formerly in force
as an ordinance OF the city Of Washington:
and was passed by Congress with some
slight change in phraseology as police
Pc gula ion: and that it was made the duty
of the Commissioners TO execute II when
ever the emergency contemplated arose
hat the emergency has arisen and the Law
is now operative not by virtue Of any
legislative power exercised by the Commits
sioners but by virtue of the act of Con
gress itself and the happening of the event
which was to make it operative. And fur
IhermoTe. a dog is not property eN-
cept by virtue of said act, and anyone buy
ing or owning dog subsequent TO the pas
sage of the said act, must be presumed to
do so with full knowledge that he could
only have a qualified property in the same.
While Congress is charged with the
duty OF exercising exclusive legislative
powers in the District. ii has been held
by the courts that such provision Of the
Constitution means exclusive of the leg
islative power Of any State Whatever leg
islation il any can be intrusted by Con-
eress TO its subordinate officers Of agent2
with respect 10 purely municipal matters,
will continue 10 be the exercise OF exclusive
legislative power so far as regards the
States and is not prohibited by the Consu-
tuition. In other words. Congress may ere
ate a municipal corporation such as the
District of Columbia now is and assign Ia
its executive officers certain Of the duties
that are imposed upon the central legisla-
tive body. II can undoubtedly authorize
the Commissioners to make such orders
that may be necessary for police regula-
tions
The Act Of Congress.
The particular regulation now COM
planned of and which is attacked in the
argument Of counsel for complainant is thC
act of Congress and not the act of tn,
Commissioners Il is true that the Com
missioners have given notice 10 the com
munity that the contingency has occurred
which Congress deemed necessary TO pu
its act i'm force; but what was to be re
quired Of the citizen in the event Of tina
contingency happening is definitely pro
vided in The statute itself The Suprem
Court has held that il is competent fol
Congress to pass a law which shall not bt
operative in the event that a future con.
tingency shall occur, such contingency tI