Evening star. [volume] (Washington, D.C.) 1854-1972, 1900-03-12
Justice Barnard Decides the Muz-
cling Order Test Case.
COMMISSIONERS PROCLAMATION VALID
Lengthy Opinion Covering the Gen.
eral Canine Question.
AN INJUNCTION DENIED

Justice Barnard holds that the provisions
of the act of Congress, called into opera
ton by the proclamation of the Commits
sioners. are valid and clearly within the
constitutional powers of Congress. Accord
irg to Justice Barnard the Commissioners
are only authorized to determine when the
emergency exists. The court does not now
decide whether that determination can or
cannot be reviewed or revised by any other
tribunal. 1t is pointed out that no question
is raised in the case at issue on the question
of emergency. The court denies the injunc-
ton and sustains the demurrer to the bill.
Counsel for the complainant in open
court, noted an appeal to the Court of APP
peals from the ruling of Justice Barnard.
In the course Of his opinion Justice Bar
nard recounted the declarations contained
In the bill Of the complainant by which he
sought to have the defendant, who is the
poun6master of the District, restrained and
enJoined from taking, fmpounding, killing
or 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 Com
missioners 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 to do
so under the coler of recent order or
proclamation of the Commissioners, which
complainant charaeterizes as an enactment
of law, and contends that inasInuch as
Congress has, under the Constitution the
exclusive legislative power over this Dis
trict 1t cannot delegate such power to the
commissioners, and that, therefore, said
proclamation is void and cannot deprive
him of his property Proceeding. the opin-
Ion recited that
Power of Congress-.
The complainant's counsel contend that It
was beyond the power of Congress to pass
the law in question; and that If it had the
power. the Commissioners could not make
such law operative by proclamation; and
Certainly the attempted legislation by proc
lamation is void for want of the great seal
which is required to be attached to such a
document He further argues that a dog Is
property within the meaning of the Consti-
tuition. and that such cannot be seized and
sold or destroyed, as threatened in this
case. for the alleged benefit of the public,
without just compensation and due process
OF law; and that as the defendant threat
ems to do an unlawful act by virtue of his
Office. a bill for injunction will lie to re-
strain such official act.
Contention of Defendant.
Counsel for the defendant contend that
the law in 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 a police regula-
ton; and that fl was made the duty OF the
Commissioners to execute it whenever the
emergency contemplated arose: that the
emergency has arisen and the law Is now
operative not by virtue of any legislative
power exercised by the Commissioners, but
by virtue of the act of Congress itself and
the happening of the event which was to
make it operative And, furthermore, when
a dog is not property except by virtue of
said act. and any one buying or owning a
dog subsequent to the passage of the said
act must be presumed to do 50 with full
knowledge that he could only have quail
fried property in the same.
While Congress is charged with the duty
Of exercising exclusive legislative powers in
this District. II has been held by the courts
that such provision of the Constitution
means exclusive Of the legislative power Of
any state Whatever legislation, II any,
can be intruSted by Congress to Its sub
ordinate officers or agents with respect TO
purely municipal matters will continue to
be the exercise of exclusive legislative
power so far as regards the states and is
not prohibited by the Constitution In other
words. Congress may create a municipal
corporation such as the District of Column
bid now IS and assign to its executive off,
GERS certain of the duties that are imposed
upon the central legislative body. 1t can
undoubtedly authorize the Commissioners
10 make such orders as may be necessary
for police regulations.
Not the Act of the Comm issioners,
The particular regulation now complained
Of. and which is attacked in the argument
-. tOuilStl lot CONlpldlndnI, Is the act OF
Congress. and not the act of the Commits
si0ners. 1t is true that the Commissioners
have given notice to the community that
the contingency has occurred which Con-
gress deemed necessary TO put its act IN
force: but what was to be required of the
c:iizen in the event of that contingency
happening is definitely provided in the
statute itself. The Supreme Court has held
that Il is competent for Congress to pass n
IAN which shall Tn, ba
even, that future contingency shall occur
- contingency to be known by a procla-
M: ti"n Of the President
Thu bill does not undertake to state that
The facts which were TO make it the duty
o the Commissioners to enforce the law
H-.Vr not been shown. but II is claimed that
Inv order OF proclamation. is Illegal be-
c.rJSe il is the exercise of legislative power
NEich Congress could not delegate
Two Things to Be Decided.
There were two things only to be de-
cidr'i by the Commissioners" said Judge
barnard: First. are there any good r, asons
f"- believing that mad dogs are in the Dis
tr.ct: second. what period shall be fixed
during which the provisions of the statute
shall be considered in force?'
Congress determined for the safety of the
inhabitants Of the District what should be
done under such circumstances; but mas
much as mad dogs were the exception and
not the rule, it gave the citizens freedom
L. allow their dogs to go unYnuzzled al
such times as there were no mad dogs
apparent, and hence provided the machinery
for determining and making known the fact
that mad dogs were believed 10 be here
This can hardly be called legislation. 1t Is
more like the outcry that would be given II
man should be observed unwittingiy ap-
preaching some imminent peril 1t is max
ing public the existence of a fact, rather
than rHacting a law
The argument does not stop with the con-
tontion that the proclamation is void. be-
cause it contains legislation which could
not be delegated. but it goes to the act OF
Congress itself. and contends that this pro-
vision is unconstitutional because il under
takes 10 deal with the dog in such a man.
ner as 10 deprive the owner OF his property
without due process of law
Dog as Property.
That the same act makes the dog proper
~. and provides a method of taxation; and
when that is done, legislative power ends
and no additional requirement can be made
the noncompliance with which would oper
ate as destruction of that property.
The first section Of this act requires q
tax or - per annum to be levied on each
dog owned or kept in the District Sector
provides that every dog wearing the ta1
tag shall be permitted to run at large a nd