The Inalienable Dog
People are licensed to do an endless variety of things: practice law and medicine, hunt, fish, fly, sell merchandise from pushcarts, cut hair, extract teeth, tend bar, put on a striptease. Moving over into the animal world, horses are licensed to race, in a manner of speaking. They must be registered with The Jockey Club. Cats are not licensed. Dogs are.
As a matter of fact, there are approximately 6,570,000 licensed dogs in the U.S. Now, in the case of people and race horses, the license carries with it the right to do certain specific things. But has anybody ever bothered to ask precisely what rights the licensed dog has?
Curiously enough, somebody did ask, long ago. He was Clyde Middleton of Maryville, Mo., and he directed his question to the then governor of the state, Henry S. Caulfield. Mr. Middleton wrote:
"I am writing you to find out where a dog license is any protection to a dog. If not, where is the use of paying out that money? The Mayor here says that a license does not protect the dog in the least, that if it leaves home, the officer has the right to kill it. Will you please let me know where a license does protect the dog and does it have a right away from home, either day or night?"
Governor Caulfield, a thoughtful man, did not take the appeal from Mr. Middleton lightly. Instead, he assigned my brother Joseph F. Holland, an assistant attorney general of the state, to go into the matter thoroughly and give him an opinion that might live, in Missouri at any rate, as a sort of Magna Carta of the dog. Holland's opinion follows:
"The State of Missouri [he began] devotes an entire chapter of the Revised Statutes of 1919 to 'Dogs.' It solemnly assures us that 'a dog shall be held and construed to mean all animals of the canine species whether male or female.' From that simple pronouncement evolves a widening circle of state and municipal legislation that weaves about every canine who after nine days of darkness opens his eyes upon the sturdy mountains and verdant rolling plains of our great state.
"In the all-inclusive fold above outlined, we find the aristocracy and the serfdom of the dog. It includes the snobbish Pomeranian, curled in sweet contentment upon the social dowager's lap; it embraces the rugged, stately and commanding St. Bernard; the fine-limbed, alert, aggressive police dog; and, lest we stoop to sacrilegious forgetfulness, it comprehends also the old 'houn' dawg' of Missouri tradition.
"Mr. Middleton, somewhere between these vast extremes there stands your dog, a lonely figure in this towering controversy that has already whisked into its maelstrom the Governor of your state, the Mayor of your city....
"This framework lays the foundation for us to repeat the position your dog or any of his species holds in our complex social scheme.
"First, let us consider your dog as he is, a legal entity. He is your personal property. The courts have so declared. The sparkling Kohinoor diamond; the vast array of furniture under which the Mayflower struggled to these shores; the antiques of the Napoleonic period; the tapestries of the Hapsburgs of other days—he is as they are—personal property; only that and nothing more.
"The state, with its inherent right to tax, has made its levy upon all of these. They have no privileges but to be. They exist, and because they do, the state exacts its due.
"The right to tax a dog, basically, is as old as tax itself. It is no sentimental thing. The state does not envision the high intelligence of your dog's searching eyes; it is denied the thrill you have in the furious greeting of its wagging tail; it does not comprehend the fond and loving joyfulness of his welcome. To the state your dog is just a chattel. He is, and because he is, you must pay tribute for the pleasure that ownership gives you in any personal property.
"However, taxing a dog is a municipal function. As this great century dawned, the great state of Kentucky, which had theretofore enshrined and ennobled the horse, declared in 1901 that a tax on dogs was a valid exercise of the police power to regulate the ownership and keeping of dogs.
"Six years sped by. And then the state of California, land of sunset and of census, rushed in to say that taxing dogs was not inconsistent with the right of cities to license any kind of business not prohibited by law. It declared in solemn mandate that the levy of the tax need not be made at any day certain, nor would it be void for failure to do this. The thought persists that it granted that the dog at no time planned or sought to evade the tax and that, when the bright and shining disc of license was placed upon his collar, he was no whit the wiser nor any whit the happier.
"Thus far, everything has been against the dog. The drone of constant tax has been about his ears. But then came New York, with the first step in his behalf. It said in one sweet dulcet tone that he was entitled to broader rights, greater protection and professional care and then—in a deep and strident crescendo—roared out its declaration that he still must bow beneath the weight of tax—even as you and I.
"It said briefly that a tax on dogs might be levied, and then diverted to a specially incorporated humane society where the funds thus obtained would be deployed over the army of less fortunate and untaxed dogs.
"The world waited for Missouri. The tax and the care of dogs had been adjudicated. What of his life?
"Missouri held, under the spell of Christmas in 1924, that, if a man shot a dog maliciously, he must pay his owner twice his value; if he shot him, but without malice, then his actual value. The presumption lies that, if he shot him in any other mental attitude, it was too bad for the dog and owner, too.
"This brings us to what your dog may do under the license granted by your city. The state, you know, has passed the privilege on to your city, and this matter really is between you and your home town.
"The license protects your dog in the right to be just what he is, your dog. If you were to refuse to pay taxes upon your house, the state might sell it; if you refused to pay taxes upon your income to the state or Federal Government, you might be fined or imprisoned. So with your dog. The license means only that you have paid the state its tribute for ownership of property and earned the right to the companionship of man's noblest friend. As for the dog, the license fee is nothing more than a simple occupational tax; his simple occupation is to be a dog.
"You ask, Mr. Middleton, 'does it have a right to stay away from home, either day or night?' "
UNGRATEFUL DOG
"There comes the saddest phase of all this case. It summons up the thought of unrequited love. Why should a dog, with a master so tender of his interest that he invokes the intervention of the Governor himself, desire to be away from home, either day or night? The question is one of canine fickleness that defies the research of the legal huntsman. It lies entrenched within the realm of the psychologist.
"His right to be away from home, legally, lies in whether he is muzzled or on leash in accordance with municipal regulations. He must be kept by you at all times where a striking fancy or passing whim would not permit him to do harm to others.
"This is not harsh, and yet the mandate is final and unyielding. Remember the same sovereignty that cries out its warning to your dog in another moment thrusts a millionaire behind the bars.
"Thus a license is the state's approval of your right to hold property. The city must tell you how to tie him up and hedge him in. The mayor is right; long live the mayor.
"Some comfort there should be. As witness:
" 'When all other friends desert, he remains. When riches take wing and reputation falls to pieces, he is as constant in his love as the sun in its journey through the heavens.'
"Senator Vest [of Missouri] said that. I repeat it. You and everyone will grant it. A license is your dog's only due. Give it to him and be content."
TWO ILLUSTRATIONS