Jurisdictional Statement — Harrington v. California

INDEX.

Susgect Inpex.

Page

Statement as to jurisdiction ...................... 1

Statutory provision sustaining jurisdiction... . 1

Statutes of the State involved ................ 1

Finality of judgment—highest court........... 2

Appeal timely taken ......................... 3

Constitutional question sufficiently and timely

er deat cree cack ee aa x wks 6445458 % 3

Nature of the case—grounds substantial...... 4

Grounds—decision necessary ................. 16

Right of appeal in person..................... 23

Exhibit ‘‘A’’—Judgment and memorandum opinion

of Appellate Department of the Superior Court of

Ce Beate of Calformin ... icc eciccer sence 25

Tase or Cases Cirep.

Ackerman, In re, 6 Cal. App. 5.................... 20

Archer v. Baertschi, 4 Ohio C. D. 416.............. 14

Brill v. Humame, 2 Ohio C. D. 594.................. 14

Cantwell v. Conn., 310 U. S. 296................... 7

Carison v. Calif., 310 U. 8. 106.................... 7

NT ene 15

Chauvin v. Valiton, 8 Mont. 451................... 14

Chicago v. Collins, 175 Ill. 445..................... 12

Chicago R. C. v. Chicago, 166 U.S. 259............. 11, 14

Coml. v. Bean, Thacher’s Cr. Cas. 85,99............ 11, 14

Coml. v. Savitsky, 6 Pa. D. & C. 368................ 12,15

Cotter v. Doty, 5 Ohio R. 394...................... 14

Cranston v. Augusta, 61 Ga. 572................... 15

Dawson v. Ky. Dis., 255 U.S. 288.................. 12

DeJonge v. Oregon, 299 U.S. 353.................. 6

Donovan v. Vicksburg, 29 Miss. 247................ 14

Fagan v. Humane, 6 Ohio NP 357.................. 13, 14

Fiske v. Kansas, 274 U.S. 380..................... 6

Flint v. Stone Tracy, 220 U.S. 107................. 12

Gibson v. Pulaski, 2 Ark. 309...................45. 12

—71236

ii INDEX

Page

Gulf R.C. v. Hewes, 183 U. 2 Serres Tints 12

Hague v. C. I. 0., 307 U. S. EE ee ee 10

Harbold v. A., T. € S. F. R., 117 Cal. App. oer 3

Heiskell v. Mozie, 82 F. (2d) 861......------------ 24

Herndon v. Lowry, 301 U. S. 242......-------++5+> 7

Hey Sing Ieck v. Anderson, 57 & eer 14

Hicks v. Sullivan, 122 Cal. App. 635 ........------- 8

Hizon v. School Dist., 187 Ark. 554 ........-------- 12

Johnson v. McConnell, 80 Cal. 549.......---------> 9, 14

Jordan v. Gaines, 136 Me. 291......---------2500°> 14

Kasch v. Anders 318 Ill. 272. ......---------2er00 14

Kim Young v. Cal., 308 U. 8. 154.......--.- +--+ >>: 2,3

Kinder v. Gillespie, 63 Ill. 88.....-.------ 2-200 14

Knowlton v. Moore, 44 L. Ed. 570........-.----++-> 12

Laverone v. Mangianti, 41 Cal. 138.........-------- 9

Lovell v. City of Griffin, 303 U. S. 444.......--.---- 2

Lynn v. State, 33 Tex. I 14

Matthews v. Jensen, 21 Utah 207 .......-------->: 13

Merrick v. Amer. Sec., 107 F. (2d) 271......------: 24

Near v. Minn., 283 U. S. 697 ......---- +e essere 9

Nicchia v. New York, 254 U.S. 228........------++> 17

People v. Fimbres, 107 Cal. App. 778 ......--+--:> 8

People v. Rose, 183 P. 879.......----- +++ 000-000 24

Phillips v. Lewis, 3 Tenn. (Shan.) 230.......-.----- 12, 14

Poppen v. Holmes, 44 eres 15

Reser v. Umatilla, 48 Ore. 326 ....-..--- +--+ ees 00> 13

Roos v. Loeser, 41 Cal. App. 782.....-.------ +000 8

Rose v. Salem, 77 Ore. 77......------0- srr 14

St. Louis v. Spiegel, 90 Mo. 589.......------- +++ 0+: 12

St. Louis v. Western Union Tel., 148 U. 5 ee 11

Sentell v. New Orleans & C., 166 U. S. Spee 11,18

Scott v. Donald, 165 U.S. 91 .....------- eee 11

Smith v. Court CC., 117 Ala. 196.......-------++++> 12

State v. Frame, 39 Ohio 399......-.------ +2000 12

State v. Neal, 120 N. C. 614......------- reer 14

State v. Vauthier, 135 La. 766 ........--------+00: 12,15

Stevens v. State, 2 Ark. 291 ......--------sseecce 12

Stromberg v. Calif., 283 U. 8. AP ory e 6,9

Stuart v. Palmer, 74 N. Y. R. 183.....-.----- +--+ +> 14

Thompson v. Kreutzer, 112 Mies. 106......-.--++-- 12

Thornhill v. Alabama, 310 U. 8. 88...-.----- +--+: 7

INDEX iii

Page

Washington v. Meigs, 1 McArthur (D.C.) 53........ 12, 15

Washington R. C. v. Reid, 13 Wall. 264............. 12

White v. Tallman, 26 N. J. L. 67............---+++: 14

United States v. Butler, 297 U.S.1.......... ee

Sratrutres anp AuTHoRITIES CITED.

California Civil Code:

American Jurisprudence, Volume 2 (1936), 693... .. 9

En ype nk cee cerenenexteeeey et 8

ES AE EO POP ET TE Ter er Ty Cera 8

California Penal Code:

SE Breer rrr rer rer rr te 8

ME, eco ckeeeceteueessesesveunees 3

OS err err rrr rr Tree rere. 3

Constitution of California, Bill of Rights.........-. 2

Article VI, Sec. 4b.........----- cece eee eee 3

Article XIII:

1 oer re rere ee te 8, 13

Se Serer ot LOE FO OY 13

Constitution of the United Staes, 14h Amendment,

2, 3, 16, 21, 23

Judson ‘‘Taxation’’, pp. 512, 513..............---: 12

Los Angeles City Board of Health Report, June

ee re rrrrrerr rer tere ee 19

Los Angeles County Health Report, 1939-1940...... 19

McQuillin ‘‘Municipal Corporations’’, Volume 3, p.

ho TL en EN ee a Re Ree TE 15

Ce ts eas ae peda n wee kaw 2? 2

Political Code of California, Sec. 3617...........-- 8

Revenue and Tax Code of California, Sec. 103....... 8

Ruling Case Law:

Volume 1, p. 1114, Sec. 58... ..... 2.6. --- ee eee 9

Volume 17, p. 32, Sec. 35..........---- 2 eee ee- 9

Tiedman ‘‘Limitations’’, pp. 4, 6, 7, 273 and 507... .. 12

United States Code:

Title 28, Section 344 (Sec. 237a, Judicial Code).. 1,2

Title 28, Section 394 ............---e see eeees 23

Title 28, Section 832 ..........-----+e+eeeeeee 23

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1941

No. 714

GEORGE F. HARRINGTON,

Appellant,

VS.

PEOPLE OF THE STATE OF CALIFORNIA.

Appellee.

STATEMENT AS TO JURISDICTION.

Pursuant to Rule 12 (1) of the rules of the Supreme Court,

appellant submits this statement showing that the appeal in

the above entitled cause is properly before this Court.

A.

Statutory Provision Sustaining Jurisdiction.

The jurisdiction of this Court is invoked under United

States Codes, Title 28, Sec. 344 (Sec. 237a Judicial Code).

B.

The Statute of the State Involved.

The State statute drawn into question and validity of

which was sustained by the decision and judgment of the

lv

2

Appellate Department of the Superior Court of Los An-

geles County, is a city ordinance fully set forth in the

Municipal Code of the City of Los Angeles (1936), Or-

dinance #77,000, Chapter 5, Article 3, Animals and Fowls.

The appellant contended in the courts of this State that

Sections 53.15 and 5328 of said ordinance are null and void

on their face and as applied to the appellant, and that they

are repugnant to the Constitution of the United States, and

deprive him of his liberty and property without due process

of law, and deny him the equal protection of the laws as

guaranteed by the Fourteenth Amendment.

Section 53.15a provides;—‘‘ Any person owning or hav-

ing custody or control of one or more dogs shall pay for

the privilege of keeping such dog, a license tax of two

dollars ($2.00) for each male dog or spayed female dog

* * * and four dollars ($4.00) for each female dog not

spayed * * #9

Section 53.28 provides ;—‘‘No person shall have, harbor

or keep any unlicensed dog.”’

A Municipal Ordinance is a State statute within the mean-

ing of Sec. 344, Title 28, United States Codes (Sec. 237a

Judicial Code) Lovell v. City of Griffin 303 U.S. 444.

C.

Finality of Judgment of Highest Court.

The judgment of the Appellant Department of the Su-

perior Court of Los Angeles County forming the basis of

this appeal was rendered September 24, 1941, and is final

and disposes of all matters of the controversy in the Munici-

pal Court, wherein the case was tried, and all matters pre-

sented to the said Appellate Department. Kim Young v.

Cal., 308 U. S. 154. Under the laws of this State, said

Appellate Department is the highest court of this State

in which such judgment could be had in this case, This

3

case is criminal action prosecuted by complaint in the

Municipal Court of the City of Los Angeles as misdemeanor,

and the Constitution of this State provides that ;—‘‘The

district court of appeals shall have appellate jurisdiction

from the superior courts * * * also on questions of law

alone, in all criminal cases prosecuted by indictment or in-

formation, except where judgment of death has been ren-

dered.’’ Art. VI. Sec. 4b. Therefore no appeal lies to the

higher courts. Harbold v. A. T. é S. F. R., 117 Cal. App.

430. Sec. 1462 of Cal. Penal Code gives jurisdiction of mis-

deameanors to Municipal Courts, and Sec. 1466 of said

Code gives appeal to Superior Courts.

The United States Supreme Court has taken appeals

from the Appellate Department in similar cases.

aim Young v. Cal., 308 U. S. 154.

D.

Appeal Timely Taken.

The order and judgment from which this appeal is taken

was entered September 24, 1941. Petition for rehearing was

filed before judgment became final as determined by the

rules of the Appellate Department. Rehearing was denied

Oct. 3, 1941. On October 3, 1941, appellant filed with said

Appellate Department his petition for appeal, assignment

of errors, prayer for reversal, and the wherein statement as

to jurisdiction. Order allowing appeal was entered October

3, 1941.

E.

Constitutional Question Sufficiently and Timely Raised.

Appellant’s contentions that the two sections of the city

ordinance above mentioned, are repugnant to the Four-

teenth Amendment to the Federal Constitution, and de-

prive him of his liberty and property without due process

4

of law, and deny him the equal protection of the laws, and

that the present Supreme Court of the United States would

so declare; were asserted prior to arrest, and at the pre-

liminary hearing, and during trial in the Municipal Court,

and in his written petition for a new trial, and in his pro-

posed statement on appeal to the Appellate Department, and

in the engrossed statement on appeal allowed by the trial

judge, and in appellant’s petition to the Appellate Depart-

ment to reinstate his proposed Statement on appeal, and

in his points and authorities, and in his oral argument,

and in his petition for a rehearing. The judgment of the

Appellate Dept. is against appellant’s contentions and

is in favor of the validity of the ordinance in question, and

is a final judgment in the highest court in this State wherein

a decision can be had in this case.

.

F.

Nature of the Case:—Grounds Substantial.

Under the city ordinance in question, the appellant had

the choice of paying the extortionate tax, surrendering his

property or submitting to arrest. Therefore, the three

vital questions arise:

I. Can an arbitrary, confiscatory tax be placed upon the

right to own, harbor or keep any kind of property in the

home?

Il. Can property be confiscated by surrender under

threat of such illegal tax or of arrest?

III. Can anyone be arrested, fined and imprisoned for

the mere ownership, peaceful possession, harboring or

keeping harmless property in his home?

A few courts have resorted to various subterfuges to

justify such arbitrary, unreasonable, unjust, unappropri-

5

ate, unconstitutional acts; as, ‘‘Property in dogs is of an

imperfect or qualified nature.”’ * * * ‘‘It is a peculiar

kind of property. * * * It extended to them less legal

regard and protection.’’ ‘‘The emergency may be such as

not to admit of delay.”’ * * * ‘‘But they stand on a

different basis from other domestic animals.’’ ‘‘In dogs

there is at best an imperfect or qualified nature of prop-

erty.””’ * * * ‘fA police regulation for reducing the

number of mischievous dogs and securing the owners of

the most valuable and harmless against unauthorized and

wanton destruction.”” * * * ‘It is entirely within the

power of the legislature to prohibit the ownership of dogs

at all”? * * * ‘The constitution has by direct grant,

vested in them (cities) plenary power to provide and

enforce such police, sanitary and other local regulation as

they may determine * * *.”’

To refute such false assumptions, it becomes necessary

to consider three other important matters which are not

known in Fascist States, but which are vital in a democracy

and are the very essence of freedom. These are: Inalien-

able rights, limitation of police power, Power and duty of

courts.

Liberty, Justice and equality are the three inalienable

rights which form the tripod upon which our Government

rests, and without which it cannot stand. Liberty includes

all of the freedoms known to civilization including the right

to be free to choose any kind of pleasure, amusement, com-

fort, companionship, protection and property with the sole

restriction that the rights of others shall not be abridged

thereby.

Dogs are kept for these various purposes and, when kept

in the home, the rights of none are abridged. Therefore

the appellant has the inalienable right to keep this kind of

property in his home. When this right is abridged or

2v

6

denied, the appellant is deprived of his liberty without

due process.

Liberty includes freedom from discrimination, or the

right to equality. The appellant is free to choose any other

animal or any other kind of property and he cannot be

taxed arbitrarily, but must be taxed according to the value

of that property. Because he chose a dog, he is discrimi-

nated against by the arbitrary tax, prohibited from keeping

it, forced to surrender it without compensation, or arrested,

fined and imprisoned. He is thus deprived of his liberty

without due process and denied the equal protection of

the laws.

Liberty includes freedom from persecution, which is also

included under justice. Any tax is a restraint, but a rea-

sonable, just, equitable, legal tax is a necessity for the

protection of our rights. The arbitrary tax on dogs, con-

fiscation of the property, and arrest, fine and imprisonment

of the appellant are unreasonable, unnecessary and unap-

propriate restraints and are therefore persecution and a

deprivation of liberty without due process of law. The

appellant keeps his dog at home and does not permit it

to run at large. The neighbors are never annoyed and none

of their rights are abridged. The dog is an amiable, docile

Cocker Spaniel, and barks only when someone comes to

the door. To own such a dog and keep it at home is a

harmless, innocent act and requires no restraint and cer-

tainly not more or greater restraint than is applied to

keeping a horse, cow, cat, gun, ammunition, matches, and

other property. This Court has frequently reversed con-

victions where the act charged against the so-called crim-

inal was entirely innocent and harmless and where there

was no clear and present danger.

Stromberg v. Cal., 283 U. S. 359;

Fiske v. Kansas, 274 U. 8S. 380;

DeJonge v. Oregon, 299 U. S. 353, 364;

7

Cantwell v. Conn., 310 U. S. 296, 308;

Herndon v. Lowry, 301 U. S. 242, 256;

Thornhill v. Alabama, 310 U. S. 88, 104, 105;

Carlson v. Cal., 310 U. S. 106, 113.

When the appellant was arrested, and confined in jail,

the public received no protection, as there was no clear and

present danger prior thereto and no protection was neces-

sary. Should the appellant pay the tax or surrender his

dog, a like situation prevails; therefore the law is

unnecessary.

When dogs are taken from those who are unable to pay

the illegal tax, they are sold to others for a pound fee and

the tax. Thus dogs kept at home by those unable to pay

the tax are harming no one. When confiscated and sold

and allowed to run at large, they can and often do damage

and destroy property, and frighten and injure children

and adults, or cause traffic accidents. The payment of the

tax and the dangling tag on the dog are not appropriate

restraints to protect the public. Should the appellant

surrender his amiable, docile dog, and if that dog were

destroyed by the Humane Dept. the public would receive

no protection by such reduction of harmless animals kept

in the home. It is contended by some courts that it tends

to reduce the number of worthless dogs. This is untrue,

as the dog kept by a poor family may have worth beyond

dollars, and may be its sole means for the pursuit of happi-

ness by the members of that family. It cannot be contended

that it tends to reduce the number of vicious dogs, as

anyone may keep a vicious dog if the tax is paid. It is

not unlawful to keep a dog, or to allow the dog to run at

large, unmuzzled, unleashed, unfettered and unrestrained

in every way. That illegal tax is the sole criterion of crime.

If only that tax is paid, the public is thoroughly protected.

The dog is turned loose to annoy cyclists, frighten and

8

injure children, fertilize and irrigate, cultivate and depre-

date lawns, gardens, shrubs, poultry yards and rabbit pens.

This clearly indicates that the restraints placed upon the

right to own this kind of property, are unreasonable,

unappropriate and unnecessary and amount to persecution

and deprive appellant of his liberty and property without

due process of law.

Property 1n Docs: All adverse decisions in these dog

dilemmas are based upon the false assumption that there

is but an imperfect or qualified property in dogs. Property

in dogs owned in California is full, complete and equal to

property in any other domestic animal, and in all other

things possessed and used about the home and farm. ‘‘The

word property as used in this article and section, is hereby

declared to include * * * and all other matter and

things real, personal, and mixed, capable of private owner-

ship.’”’? (Cal. Con. Art. XIII sec. 1; Rev. & Tax. Code sec.

103; Pol. Code sec. 3617.) ‘‘Fourth. The term ‘personal

property’ includes everything which is the subject of

ownership not included within the meaning of the term

‘real estate and improvements’.’’ (Pol. Code sec. 3617.)

‘‘In this Code, the thing of which there may be ownership

is called property.’’ (Civil Code sec. 654.) ‘‘There may

be ownership of all inanimate things * * *°; of all

domestic animals;’”’ * * * ‘‘Animals wild by nature

are the subject of ownership while living, only when on

the land of the person claiming them, or when tamed, or

taken or held in possession.’’ (Cal. Civil Code sec. 654

and 655.) ‘‘Dogs are personal property.’’ (Cal. Penal

Code sec. 491.) See also:

Roos v. Loeser, 41 Cal. App. 782, 85;

Peo v. Fimbres, 107 Cal. App. 778, 80;

Hicks v. Sullivan, 122 Cal. App. 635, 37;

Dryer v. Cyriacks, 112 Cal. App. 279;

9

Johnson v. McConnell, 80 Cal. 545, 49;

Laverone v. Mangianti, 41 Cal. 138.

‘‘Modern conception of dogs,’’ 1 R. C. L. (1929) 1114,

sec. 58, 2 Am. Jur. (1936) 693, sec. 7; 17 R. C. L. 32,

sec. 35 (1929).

Potice Power: Under the police powers granted to

government under our constitutions, the city counsel has

the power, authority and duty,

To make and enforce such local, police, sanitary and

other regulations necessary for the protection, security and

benefit of the people;

To establish justice, insure domestic tranquility, pro-

mote the general welfare, and secure the blessings of lib-

erty;

To secure the inalienable rights, among which are life,

liberty, equality and the pursuit of happiness.

All regulations must be necessary, appropriate and

reasonably adapted to accomplish the purposes for which

democratic governments are established. Regulation must

tend to eliminate some pre-existing evil. Restraint cannot

be placed upon harmless and innocent use of property.

This Court has ruled against previous restraint where it

infringes upon constitutional rights ;

Cantwell v. Conn. supra p. 304;

Near v. Minn. 283 U.S. 697, 713, 714;

Stromberg v. Cal. 283 U. S. 353.

What a man owns and possesses in his home in conson-

ance with peace and good order is no concern of others

or the government. A dog kept in the home that neither

barks, bites nor destroys property of others is no concern

of anyone but the owner. The dog kept in the home needs

no regulation. The dog at large needs regulation and re-

straint. Here is the clearly defined limit of police power.

10

That limit is exceeded when the right of ownership and

possession is declared a privilege and the payment of the

arbitrary tax required before one can own or keep a dog or

any other kind of property. It is not within the province

of the police power to change innocence into guilt, or punish

innocence as a crime, and arrest and convict a person for

enjoying his rights without harm to others by merely

keeping his property in his home. These unlawful regu-

lations are not included in granted police powers and are

despotic governmental usurpation, and not due process

of law. A few courts had the delusion that police power is

omnipotent, plenary and absolute. They have mistaken

this democratic nation for a Fascist State. Volumes of

cases could be cited, but this Court has a clear understand-

ing of the limitation of police power as indicated in Hague

v. C. 1. O. 307 U. 8. 496, and other cases above written. All

adverse decisions are based upon this fallacious presump-

tion, and therefore are not good authority. The ‘‘clear

and present danger’’, ‘‘innocent act’’ and ‘‘previous re-

straint’’ rules followed in cases cited are appropriate rules

to apply where any right is restrained.

Courts Power anp Duty.—Democratic governments are

established to protect, in the highest degree, all of the rights

of free people. This government is divided into three

separate divisions, each supreme within its own field of

power and duty. Each to be a check upon the other, so that

the fundamental rights of the people are not unnecessarily

abridged. When any of these rights are abridged by any

branch of our government, it is the duty of one or the other

remaining branches to check the abuse, when called upon

to do so. Any evasion, by subterfuge or otherwise, is not

due process of law, and is discrimination against petitioner.

Any transgression or excessive use of power is not due

process of law, and is discrimination against the victims.

‘‘Congress and the courts both unhappily may falter or

11

be mistaken in the performance of their constitutional

duty.”’ U.S. v. Butler 297 U. S. 1, 87; Stone J. dissenting.

Appellant contends that all adverse cases and decisions

are errors on their face, by upholding unnecessary abridg-

ment of inalienable rights; by the subterfuge of declar-

ing that dogs are not full property, that they are not equal

to other domestic animals and other personal property

under the laws; and by the false assumptions that the police

power of the State is absolute, plenary and omnipotent, and

that constitutional guaranties do not apply to dogs and dog

owners. Any court that uses such void decisions as author-

ity, and bases its decision and judgment upon them is dere-

lict in duty and such judgment is likewise void and not

due process of law. ‘‘While these regulations are more

than ordinarily stringent, and might be declared to be un-

constitutional, if applied to domestic animals generally.”’

Sentell v. New Orleans &c., 166 U.S. 698, 706.

Compare—Dissenting opinions by Brown J. in

St. Louis v. Western Union Tel. 148 U. S. 105;

Scott v. Donald 165 U. S. 91.

Some courts recount all the benefits of our constitutional

guaranties and finish with a denial. ‘‘It is a case fre-

quent in all our experiences in life, where the performance

and the promise are sadly at varience.”’

Chicago R. C. v. Chicago 166 U. S. 259 (dissent).

All of the adverse decisions indicate that the rules of

‘‘clear and present danger’’, ‘‘innocent acts’’, ‘‘previous

restraint’? and ‘‘use your own rights as not to injure

others’’ were totally ignored by the courts. When the Ap-

pellate Dept. used decisions as a basis, that were based

upon these illegal and unreasonable and false assumptions,

the appellant was denied due process of law and equal pro-

tection of the laws.

7

12

The three vital questions involved:

I. Can an arbitrary, confiscatory tax be placed upon the

right to own, harbor or keep any kind of property in the

home? Appellant contends that owning, keeping and using

property are inalienable rights. The right to own property

carries with it the right to keep, harbor, buy, sell, trade,

destroy or otherwise use without injury to others. The

right to keep property in the home cannot be declared or

converted into a privilege, as is done by the ordinance in

question. This is not within the power of the city counsel.

The law is therefore void and is not due process of law.

Phillips v. Lewis 3 Tenn. (Shan.) 230, 245;

Stevens v. State 2 Ark. 291;

Gibson v. Pulaski, 2 Ark. 309;

State v. Frame, 39 Ohio s 399, 413;

Knowlton v. Moore, 44 L. Ed. 970, 975.

An unjust, illegal, arbitrary per capita tax on the right

of owning and keeping property, is a tax on the property,

and is unconstitutional and void.

Dawson v. Ky. Dis., 255 U. S. 288, 294;

Gulf R. C. v. Hewes, 183 U. S. 66, 77;

Washington R. C. v. Reid, 13 Wall. (80 U. S.) 264, 168;

Hixon v. School Dist., 187 Ark. 554;

Judson-Taaxation pp. 512, 513;

Tiedman-Lim. PP., p. 273;

Thompson v. Kreutzer, 112 Misc. 165;

Flint v. Stone Tracy, 220 U. S. 107, 149;

Smith v. Court CC., 117 Ala. 196; -

St. Louis v. Spiegel, 90 Mo. 589;

Chicago v. Collins, 175 Ill. 445, 457;

Washington v. Meigs 1 Me Arthur (DC) 53, 58;

Coml v. Savitsky, 6 Pa. D&C 368;

Coml v. Beam, Thacher’s Cr. Cas. 85, 99;

State v. Vauthier, 135 La. 766;

13

Fagan v. Humane, 6 Ohio NP 357;

Reser v. Umatilla, 48 Ore. 326;

Matthews v. Jensen, 21 Utah 207;

Phillips v. Lewis, Supra;

Stevens v. State, Supra;

Gibson v. Pulaski, Supra.

‘‘It is an established principle that the attainment of

a prohibited end may not be accomplished under the pre-

text of the exertion of powers which are granted.’’

U. S. v. Butler, 297 U. S. 1, 68.

The California constitution Declares ;—‘‘ All property in

the State * * * shall be taxed in proportion to its

value’’ Art. XIII Sec. 1. ‘‘The Legislature shall have

power to provide for the assessment, levy and collection

of taxes upon all forms of tangible personal property * * *

in a manner and at a rate or rates in proportion to value

* * * and no tax burden shall be imposed upon any per-

sonal property, * * * which shall exceed the tax burden on

real property * * * in proportion to the actual value of

such property.’’ Art. XIII Sec. 14.

As the ownership and possession of property are inalien-

able rights, and they cannot be converted into a privilege,

and as they must be taxed ‘‘in proportion to the actual

value’’, and as dogs in California are property, personal

property, domestic animals; therefore this arbitrary, per

capita, unjust, unreasonable, discriminatory and confisca-

tory tax is unconstitutional and not due process nor equal

protection of the law; and is repugnant to the Fourteenth

Amendment.

II. Can property be confiscated by compulsory surrender

under threat of such illegal tax or of arrest?

It is a well established principle of democratic law that

no person can be deprived of his property in any manner

“7

except through well established legal procedure, unless

there is ‘‘clear and present danger’’ to the life liberty and

property of others. Property which is inherently evil or |

14

dangerous may be regulated only so far as to eliminate the

evil or danger, and may be prohibited altogether if regula-

tion does not give sufficient protection. Nuisances can be

abated by due court action or by summary methods when

delay would be fatal; but the restraint cannot go beyond

that which is necessary to give the protection appropriate

and reasonable. Harmless property, peacefully and harm-

lessly possessed and kept in the home is beyond the juris-

diction of the city council and that body cannot order its

confiscation, and when done it constitutes a taking of prop-

erty without due process of law, in violation of the Four-

teenth Amendment.

Phillips v. Lewis, 3 Tenn. (Shan.) 230;

Com. v. Bean, Thacher’s Cr. Cas. 85;

Fagan v. Humane, 6 Ohio N. P. 357;

Rose v. Salem, 77 Ore. 77;

Lynn v. State, 33 Tex. Cr. 153;

Kasch v. Anders, 318 Ill. 272, 5;

Johnson v. McConnell, 80 Cal. 545, 550;

Archer v. Baertschi, 4 Ohio C. D. 416, 420;

State v. Neal, 120 N. C. 614;

Donovan v. Vicksburg, 29 Miss. 247;

Jordan v. Gaines, 136 Me. 291;

Hey Sing leck v. Anderson, 57 Cal. 251;

Brill v. Humane, 2 Ohio C. D. 594;

Cotter v. Doty, 5 Ohio R. 394;

Chicago R. C. v. Chicago, 166 U. S. 226, 233 to 241;

Tiedeman-Lim. PP., pp. 4, 6, 7, 507;

Stuart v. Palmer, 74 N. Y. R. 183, 191;

Chauvin v. Valiton, 8 Mont. 451, 459 to 465;

Kinder v. Gillespie, 63 Tll. 88, 89;

White v. Tallman, 26 N. J. L. 67, 72;

|

—

15

Case v. Hall, 21 Ill. 632, 636;

Poppen v. Holmes, 44 Ill. 360, 363;

3 MeQuillin Muni. Corp., p. 89.

III. Can a person be arrested, fined and imprisoned for

the mere ownership, peaceful possession, harboring or keep-

ing harmless property in his home? As owning and keeping

property in the home are inalienable rights, a person has

the right to do so in any manner he chooses so long as no

one is injured thereby, or their rights abridged in any man-

ner. The appellant was convicted for harboring an un-

licensed dog. The dog was not disturbing the peace and

quiet of the city, not destroying any property, nor injuring

any person, nor running at large, merely being a good house

dog. There was no evidence that the dog committed any

harm or that any harm came to anyone by merely harboring

this dog. If the dog were licensed, the appellant would be

permitted to turn the dog loose upon the public streets,

where it would be free to injure and destroy children, adults,

animals and other property, should it so decide. This threat

or evil use would be permitted and would not constitute a

crime, while the innocent act of keeping the dog at home

which is no evil, is declared a crime. Certainly, if it is

not a crime to commit the evil of permitting a licensed dog

to run at large, it cannot be declared a crime to do that

which is less evil, or no evil. If it is not a crime to own

and keep a horse, cow, goat, monkey or other animal, how

can it be declared a crime to keep a dog in your home? This

is arbitrary, unreasonable, unappropriate and discrimina-

tory legislation, and is not due process nor equal protection

of the laws.

Washington v. Meigs, 1 McArthur (D. C.) 53;

State v. Vauthier, 135 La. 766;

Coml. v. Savitsky, 6 Pa. D. & C. 368;

Cranston v. Augusta, 61 Ga. 572.

16

Grounds Substantial—Decision Necessary.

There is no question more vital or more substantial in a

democracy, than a question involving those fundamental

rights which distinguish it from a totalitarian state. The

inalienable rights of Liberty, Justice, Equality, Pursuit of

Happiness, Domestic Tranquility and the right to own and

peacefully possess Property are the issues in this case.

Liberty Is a Broad Term and includes all the others. All

are guaranteed by the Fourteenth Amendment to the Fed-

eral Constitution. Any law which requires that an arbi-

trary tax be paid before a person can possess any kind of

property, is an infringement of these rights. Any law which

makes it a crime to keep harmless property in a peaceful

manner, is an infringement of these rights. Any law which

confiscates harmless property peacefully kept in the home,

is an infringement of these rights. Any court which uses

subterfuges and false assumptions to evade its duty is as

much at fault as the legislative body which made the law.

A decision of this Court is essential because on two prev-

ious occasions, dog license cases were decided on the false

assumptions so common to such cases, and upon prior cases

and authorities who were confused over the status of dogs

as property, and as to what extent they should be regu-

lated, and as to the limitation of the police power of the

state. When this controversy is presented to reasonable,

unbiased, unprejudiced men, they cannot arrive at any other

decision than those cited above. The dog license racket

evidently started in the days when the rich and politically

powerful sheep owners controlled the sparsely settled

States, and made laws to their own liking and benefit, just

as the despotic quick shooters ruled many mining camps.

The time has come to remove this totalitarian blot. If our

zealous legislators are interested in good democratic gov-

ernment, they can regulate dogs running at large so that

17

they will not destroy lawns, gardens, poultry, rabbits and

other pets; or fertilize and irrigate the sidewalks, lawns,

gardens, porches, steps, doors and automobile wheels be-

longing to others. These are petty annoyances and one

would feel silly going into court for redress. Many dogs

are poisoned, crippled or shot on that account.

Under several dog license laws the Fascist practice of

taking property from one person without a judicial decree,

and giving it to another was considered due process of law.

Recently, the Norwegians were ordered to surrender their

wool blankets to their conquerers, under pain of death.

The crime is possessing a wool blanket, the penalty is sur-

render it or die and lose it anyway. In Free America,

they say pay the extortion, surrender your dog or go to

jail. In Nazi occupied territory, they shoot ten innocent

persons who had nothing to do with the crime, when one of

the oppressors is sniped. In Free America, the dog owner

is forced to pay tribute to maintain a fund to reimburse

sheep owners for loss of sheep destroyed by coyotes, foxes

or dogs belonging to others. The sheep indemnity fund is

collected from those not guilty of the crime just like the

practice of the Nazis, but they wait until the crime is com-

mitted, whereas this fund is collected whether or not dam-

age is done and before it is done. This is previous restraint

on innocent victims for pursuing innocent acts. Should

these victims be legally tried for the offense of sheep dam-

age, they would have opportunity to prove their innocence,

and then be free from persecution; but under this practice,

they are denied the constitutional protection, adjudged

guilty, and penalized before any crime was committed. In

Free America, courts have upheld these laws, and called

that totalitarian practice due process of law.

In Nicchia v. New York, 254 U. S. 228; the court based

its decision upon the subterfuge that property in dogs is of

base and imperfect nature, and certainly did not analyze

as

18

the important basic principles underlying the objections

to such despotic laws.

In Sentell v. New Orleans ¢# C., 166 U. S. 698; the court

which tried the case, awarded damages to Sentell for the

loss of his valuable dog, killed on the street by a train.

The Court of Appeals reversed the decision. The Supreme

Court sustained the decision of reversal. The trial court

held that the dog was not tagged, as required by the city

ordinance, could not affect the right of the plaintiff to

recover; and that the act of the legislature was unconstitu-

tional as destructive of the right of property; and was in

conflict with the constitution of the United States, provid-

ing that no person shall be deprived of his life, liberty or

property without due process of law. This is sound, sane,

intelligent reasoning and showed a clear understanding of

the basic principles of democratic government. No objec-

tion can be taken to it, by intelligent, unbiased persons. It

would stand unshaken if the property in question were any-

thing but a dog. That court fulfilled its oath of office by

rendering such decisions, and why not? Any contrary de-

cision can be explained on only two grounds, and ignorance

isn’t both. The violation of law by one, does not give to

another the right to violate the same or another law. Viola-

tion of law by one is no defense for another except in pro-

tection of his life or property, and a few similar cases.

The railroad company had no prior right to kill another’s

dog merely because it loitered on the track, even had the

law given it that authority. The people of that State had

no power to outlaw any kind of personal property eligible

for assessment. Inherently evil or dangerous property

must be prohibited to protect the public, and cannot be

permitted merely by having it assessed. That gives no

additional protection.

On the other hand, when considered by the Supreme Court,

it indulged in guessing, presumption and supposition—not

19

commendable behavior under the circumstances. At page

700, the Court of Appeals ‘‘were evidently of the opinion.’’

It presumed that ‘‘they were without the protection of the

criminal laws’’ because a few like courts likewise presumed

the same thing, and ‘‘that shows that property in dogs is of

an imperfect or qualified nature.’’ At page 701, ‘‘They

are not considered as being upon the same plane with horses,

cattle, sheep and other domestic animals.’’ ‘‘They have

no intrinsic value.’’ They presumed that dogs were not

property and had no value, because some courts said so.

Would the moon become green cheese if some court said so?

At page 701, the court presumed that all dogs are subject

to hydrophobic madness. Facts do not bear this out, any

more than all people are subject to leprosy. The percent-

age of actual cases of rabies is very low, yet these few

cases are worthy of attention and prevention; but this can-

not and will not be done as long as such asinine legislation

and decisions permit the financial racket to exist. The

1939-40 Los Angeles County Health Report shows a five

year history of reportable diseases, which (page 33) lists

a total of three cases of Human Rabies in the entire County,

including all cities. The population of the County was

2,777,211 as listed on page 48. The annual Report of Los

Angeles City Board of Health June 30, 1940, page 12, under

reportable diseases, for two years prior, lists zero cases of

Human Rabies, with a population of one and one-half mil-

lion people, and one hundred six thousand dogs licensed to

run at large in the city.

The court presumed that the owner of a valuable dog

would comply with the law, whereas the owner of the so-

called worthless dog would not or could not, and therefore

forced to yield to persecution. Such legislation is really di-

rected against the latter class, those too poor to buy the nec-

essities of life. They are deprived of the right to possess this

kind of property, while others are not only permitted to own

—y

20

and possess a dog, but are licensed to turn it loose to dam-

age and destroy the persons and property of others. The

court presumed that the docile dog kept in the home of the

poor was a nuisance, while a vicious dog licensed to run at

large, could do no harm by reason of the magic brass charm

dangling from its collar, and the payment of the tax. At

page 701, the court continues, ‘‘ Acting upon the principle

that there is but a qualified property (702) in them.’’ At

page 705, the court continues, ‘‘So far as property is

inoffensive and harmless, it can only be condemned or

destroyed by legal proceedings.’’ At page 706, ‘‘While

these regulations are more than ordinarily stringent, and

might be declared to be unconstitutional, if applied to do-

mestic animals generally.’”’ They admit the unconstitu-

tionality of such discriminatory, confiscatory, unreasonable

law, but if applied to dogs and dog owners anything will

be condoned. The court in both cases ignored the ‘‘clear

and present danger,’’ ‘‘previous restraint’? and ‘‘innocent

act’’ rules of this Court. The court confused ownership and

keeping, with running at large and with obnoxious business

pursuits.

In re Ackerman, 6 Cal. App. 5, the court erroneously pre-

sumed that Article Eleven, Section Eleven of the California

Constitution abrogated the Bill of Rights and that the

police power of a city council was plenary and absolute.

‘‘Provided such regulations do not conflict with general

laws’’ (p.10). ‘‘The only test is, therefore, do such regula-

tions conflict with general law?’’ (pp. 10, 19). ‘‘If they

do not then they have binding authority * * *’’ (p.10).

‘¢ And the legislature has no authority to limit the exercise

of the power there directly conferred upon cities’’ (pp. 10,

19). It is indeed a tragic condition when the guardians of

our rights stray so far afield in misconstruing the powers

and duties of the various branches of our democratic gov-

21

ernment. By these statements that court decreed that the

Bill of Rights of the California Constitution and the Four-

teenth Amendment to the Federal Constitution had no force

and effect, and that the legislature could not pass any law

which limited the power of cities. The only check on this

power was the general laws in existence at the time that

section of the constitution was adopted. And at this day

courts insist that this a good democratic law and due

process of law, and cite this case to justify depriving ap-

pellant of his liberty and property without due process of

law, and denying him the equal protection of the laws.

A careful analysis of the decision will disclose it to be a

masterpiece of contradictions and false assumptions. ‘‘The

ordinance here does not, * * * attempt to interfere

with ownership of dogs’’ (p. 18). Every intelligent person

knows that a poll and per capita tax falls heavily upon the

poor and is a prohibition on the property and privilege so

taxed. ‘‘The dog became a domestic animal originally by

virtue of legislative enactment’’ (p. 16). Is this possible?

Could a piano be converted into a domestic animal by legis-

lative enactment? Could a lion become a domestic animal

by legislative enactment? Or would it have to be tamed

and associated with the home, domesticated? ‘‘No Ameri-

can court has ever questioned the right under the police

power to regulate the control, management or use of dogs’”’

(p. 18). This is nothing short of presumed omniscience.

The cases cited by the appellant speak for themselves.

Now for a few contradictions: ‘‘For the privilege of

owning,’’ ‘‘For the privilege of such ownership’’ (p. 13)

contra; * * * ‘*What privilege a dog owner receives

* * * isthatadog * * ® is under the special pro-

tection of the law, suffered to run at large with impunity”’

(p. 20). ‘‘It shall be the duty of the marshal to seize and

impound any dog owned or harbored’”” * * * (p. 7).

22

contra; * * * ‘*The marshal would of course have no

right to go upon the private premises * * * without

being armed with process, except where * * * he

might himself witness the commission of a crime”’ (p. 14).

The ordinance makes it a crime to own or harbor, the

marshal could witness it. After repeatedly stating that

the ordinance was reasonable, important, wholesome, salu-

tary regulation, the court stated: ‘‘The regulation requires

nothing else * * * than the payment of the license’’

(p. 15). ‘*To effectually accomplish this end, the owner

of the dog * * * is required to pay a license tax’’

* * * (p.13). ‘‘It provides that the owner of the dog,

* * * shall attach toa collar * * * a seal or device.

It further provides the enforcement of a penalty for a non-

compliance with the law, or for the doing of some prohibited

act and in this manner the power of the police is exercised’’

(p. 16). According to this reasoning the power of the

police could be exercised to prohibit one from wearing tan

shoes, then charge a license tax on the privilege, and arrest

anyone not licensed to wear tan shoes; and that would be

wholesome salutary legislation. And still, in this enlight-

ened day, courts will approve this illogical and totalitarian

reasoning.

‘‘Every person who owns or harbors a dog shall pay

* * * (pn. 7). ‘*For the privilege of owning is required

to pay * * ** (p. 13). ‘‘For the privilege of such

ownership is required to pay’’ (p. 13). contra; ‘‘There is

no power in municipal or other authorities to prohibit the

ownership of dogs, any more than there is such power to

prohibit the ownership of any other species of property”’

(pp. 15, 18). ‘‘We think that perhaps in one part of the

main opinion we unhappily used language which might

imply that we held that a license for regulatory purpose

might be imposed upon the ownership of dogs. What we

alll

23

intended to say * * ®* is that a license tax upon dogs

may be imposed, as an incident of the regulation of

* * *? (py. 16). What an insidious masterpiece of sub-

terfuge. What the authorities could not prohibit directly,

they could indirectly by an exorbitant license tax.

These three decisions and the opinions, together with

like ones underlying them, are all based upon fallacious

assumptions, insidious subterfuges and false assertions as

above indicated. These devices were used to justify

flagrant encroachments upon those inalienable rights herein

asserted. Local courts are concerned only with protecting

this political racket, which amounted to $264,028 for 1940-

41, and $247,106 for year ending June 30, 1940. These

decisions and opinions are not the law of this democracy,

they are the fruit of despotic, totalitarian, Fascist minds

and have no place in our scheme of life, and should

at this day be overruled in such a manner and with such

vehemence that no further doubt and confusion and perse-

cution can exist in the matters involved. This Court is now

called upon to carefully consider the three salient ques-

tions presented; to declare an arbitrary tax on ownership

and possession of a dog in the home, void; to declare void

this ordinance which criminalizes mere ownership and pos-

session of a dog in the home; to declare unconstitutional,

as repugnant to the due process and equal protection

clauses of the Fourteenth Amendment, the two sections of

the city ordinance here questioned.

Right of Appeal in Person.

The appellant respectfully requests the right to appear

in person, to defend to conclusion this criminal defense, as

permitted by law.

28 U.S. Codes sec. 832;

28 U. S. Codes sec, 394;

24

Heiskell v. Mozie, 82 F. (2d) 861;

Merrick v. Amer. Sec. 107 F. (2d) 271;

Peo v. Rose, 183 P. 879; Cal. App. (1919), 8 Cal. Jur.

sec. 505.

Respectfully submitted,

Grorce F’. Harrineron,

Dated Oct. 3, 1941.

i

Appellant,

1203 Innes Ave.,

Los Angeles, Cal.

—

25

EXHIBIT ‘‘A’’.

IN THE APPELLATE DEPARTMENT OF THE

SUPERIOR COURT OF THE STATE OF CALI-

FORNIA, IN AND FOR THE COUNTY OF LOS

ANGELES.

Superior Court No. CR A 1828.

Tue PEOPLE oF THE State or Cauirornis, Plaintiff and

Respondent,

vs.

Georce F’. Harrineton, Defendant and Appellant.

Trial Court No. 6071.

On Appeal from the Municipal Court of the City of

Los Angeles.

County of Los Angeles, State of California.

LeRoy Dawson, Judge.

This cause having been argued and submitted, and fully

considered, judgment is ordered as follows:

It is ordered and adjudged that the judgment, made and

entered in the Municipal Court of the City of Los Angeles,

County of Los Angeles, State of California, in the above

entitled cause be and the same is hereby affirmed.

Memo.

In re Ackerman (1907) 6 Cal. App. 5, holds that it is a

valid exercise of the police power for a city to pass an

ordinance requiring dog owners to pay an annual license.

That case is clear and is still the law of this state.

The argument that such an ordinance deprives the

defendant of his liberty and property without due process

of law in violation of the Fourteenth Amendment to the

Federal Constitution is satisfactorily answered in the nega-

tive by the United States Supreme Court in Nicchia v.

New York (1920), 254 U. S. 228, 65 L. ed. 235.

Fox,

I concur. Judge.

BisHop,

Judge.

September 24, 1941

(7236)