The evening times. [volume] (Washington, D.C.) 1895-1902, 1900-03-12

Justice Barnard today decided that the
District Commissioners acted entirely
within the scope OF their authority an IS
suing a proclamation" on December 10
last requiring that after that date all
dogs in the District should De muzzled.
The matter came up for consideration on
the petition OF Thomas Edward Clark. who
asked the court to restrain Samuel Elm
stein. the Poundmaster from Selling, Kill
ing. or selling a certain dog owned by the
complainant. Ii was argued some time
ago the petitioner being represented by
Attorney West Steeyer and the District by
A. b. DuvaH. Clarence A. Brandenburs.
and A. Leftwitch Sinclair. attorneys for
the Commissioners.
The opinion OF the court dispOsing Of the
matter follows.
Justice Bnrnnrd's Opinion.
The complainant seeks by bis bill IN
this cause to have the defendant, who is
the Poundmaster OF the District. restrain
ed and enioined from taking imDcundiug
killing OF selling his certain black and
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 10,
1899 The bill AYERS that the defendant is
about TO seize said dog, to impOund him.
and to proceed TO kill and sell him. and
that he is about 20 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 has.
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. il 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 70 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 70.
1873. a tax was levied on all dogs IN this
District and its payment is enforced by
ing the tax tag. BY section Z Of this act.
30 is made the duty of the Commissioners
whenever good reasons appear for believ-
ing that any dog or dogs in tie District
are mad. To- issue a proclamation requiring
that an dogs shall wear muZZles for a Pc
TtOd to- ho therein defined The sai1 sec
lion then provides that any dog going al
large during the period defined by the
Commissioners without such mUzZle shall
rc taken by the Poundmastcr ana inpound-
"a subject TO the provisions of section ..
which provides that is dogs iupOundad are
not redeemed within forty-eisbt hours hy
payment of s.. they shall be scld or de-
stroycd."
The court then cites that COPIES cf n.
urorI4matiOu were made part of the bill
and quotes the requirements made by th
order which iu. brief is that all dogs within
the District hall De made 60 wear q goo.
and substantial uuzzie for a period OF sir
months.
The CoupIHinunt'- Position.
"Tha compliments counsel contends tina
il was beyond the power Of Congress Q,
pass Oh. law I'm question; and that if il ha.
the power. the Commissioners could no
make such a law imperative By proclama
zion. and certainly The attempted lcgisia
ton hy proclamation Is void for want OF
Iroat seal which is required 20 he attGche.
To- such q document. He further argue.
that q dog is property within tie meanin.
Of The Constitution and that such cauuo
be- seized and sold or destroyed as threat
,ued IN This ease for the alleged beveit %
the public. without Just compensation an,
due process Of law. and that as the do.
PENDANT threatens 20 DO an unlawful ac
by virtue of his Office a bill for injunction
will lie 10 restrain such official act.
Counsel for the defendant contend tina
the Iaw in question was formerly in fore,
as an ordinance Of the city OF Washington
and was passed by Congress with SOM
slight change in phraseOlogy as a polio
regulation. and that 70 was made the dut,
of the Commissioners TO execute il when
ever the emergency contemplated arose
that the emergency has arisen and the Law
is now operative. not by virtue Of an.
legislative power exercised by the Commits
sioncrs but by virtue of the act OF Con
gress itself and the happening Of the even
which was to make il operative. And fur
thermore. a dog is not property eN
cept by virtue OF said act, and anyone buy
ing or owning dog subsequent 20 the pas
sage OF the said act must be presumed q
do so with full knowledge that he cOul,
only have qualified property in the same
While Congress is charged with tn
powers in the District, it has been he'll
by the courts that such provision Of u,
Constitution means exclusive OF the leg
islHtiye power Of any State. Whatever leg
islatiOn. II any. can be intrusted by Con
Eress to its subordinate officers or agent
with respect 10 purely municipal matters
will continue TO be the exercise OF EXCLUSIVE
legislative power so far as regards III
States and is not prohibited by the COusti
tuition. In other words. Congress may ere
ate a municipal corporation such as th
District Of Columbia now is and assign &
its executive officers certain OF the dutie
that are imposed upon the central legisla
tive body IL can undoubtedly autEoriz
the Commissioners TO make such order
that may be necessary for police regul1
tions
The Act of Congress.
The particular regulation now com
planned Of and which is attacked in On
argument Of counsel for complainant is Oh
act OF Congress and not the act Of "a
Commissioners. Il is true that the Con
missioners have given notice to the con
munity that the contingency has occurre
which Congress deemed necessary 70 pJ
its act i'm force; but what was to be n
CURED OF the citizen in the event Of thu
contingency happening is definitely pro
yidcd in the statute itself The Supren
Court has held that 90 is competent +,
Congress to pass a law which shall not ?
operative I'm the event that a future Coz
tingoncy shall occur, such contingency
DH1PO R1OOT