State v. Surma

57 N.W.2d 370, 263 Wis. 388, 1953 Wisc. LEXIS 423

• Court: Wisconsin Supreme Court
• Decided: March 3, 1953
• Status: Published

Opinions

Fritz, C. J.

On June 19, 1951, a dog owned by Harley Heinz, who was a neighbor of the appellants, wandered and strayed over to a farm owned by the appellants’ parents. Appellants had never seen the dog before, and did not know whose dog it was. He was a large rangy coon-hunting dog, and did not have a license attached to his collar, or to any other part of the dog. Upon the trial of the action, the appellants introduced testimony to the following effect: That the dog bothered the animals on their parents’ farm, and appellants caught the dog and tied him up in the barn and gave him some straw to lie on; and that on the next day, the dog was let loose so that he might go home, but instead he ran among the cattle and scared them; that the dog was caught again and tied to a grindstone and later let loose again, but he always came back to the parents’ farm, and was always fed and watered while there; that on Thursday, June 21, 1951, after milking time in the evening; the appellants, Walter and Emil, decided that they would take the dog in the automobile to a crossroad, about a mile away from the farm, and leave him out at the crossroad, so that he would not return to the farm, and would in some way find his way home; that before putting the dog in the automobile, appellants tied a tin can to his tail ahd filled the can with stones, so that it would frighten the dog away from the farm; that after the can was tied to his tail, the dog went about 200 feet away, but always came back to the farm; that appellants then put the-dog in the automobile and Walter drove the car, and Emil held the dog; that appellants were in the front seat as they proceeded down the roadway and the dog became unruly and jumped around in the car from the front to the back seat ánd they thought that the dog might jump through the window; that Walter then decided to tie the dog behind the automobile, arid lead him the rest of the way to the crossroad, which was their destination. A rope was found in the rear of the automobile and the appellants tied the dog to the right side of the rear bumper, approximately two or three feet from the exhaust pipe, which extended two or three inches beyond the bumper; and they tied the dog to the right side of the bumper so that he could not wander into approaching traffic. After tying the dog, AValter resumed his position as the driver of the automobile, and Emil became the lookout to watch the progress of the dog as they drove along the road. Appellants testified that the maximum speed the car was driven was from 10 to 15 miles per hour. On three separate occasions Emil looked out to see the dog, and the first and second time he reported that the dog was getting along fine; but that the third time he looked at the dog, he was down and dragging, and Emil then informed Walter, who - immediately stopped the car and got out. He testified that the dog had been dragged for some distance — approximately over a 15-acre tract of land — and that he listened to the dog’s heartbeat and saw that his tongue was out; and upon hearing no heartbeat, he figured that the dog had died. There was some blood on the highway, and Walter became scared and then cut the rope and placed the dog in a ditch alongside the highway. Neither Walter nor Emil considered at that time that the dog might have become asphyxiated from the exhaust of the automobile. On the trial there was ample evidence which the court could consider credible to establish that a trail of blood was traceable for six tenths of a mile in the road to the place where the dog was ultimátely found.

The offense was committed by appellants on .a Thursday afternoon, and the dog was not found until the following Sunday afternoon. He was found by a neighbor who knew the owner, Harley Heinz. He testified that he found the dog in the ditch with a tin can tied to his tail, and he then took the dog to a veterinarian that Sunday night, who in testifying, described the dog’s condition as follows:

“The front leg as I remember, and the sternum — the rib part was completely denuded of muscle and tendons were rotted. The bones were dried up and were exposed. The back leg — I can’t remember — I think it was the right rear leg toward the paw was also completely denuded — the bones were exposed. It was quite offensive and the flies have gotten in there sometime previously and it was just full of maggots. They were terrifically bad. The prognosis on the dog was very poor when it was brought in. . . . It was at night, and the next morning the dog was dead.”

These terrible injuries to the dog, together with the trail of blood, constituted evidence which amply supported the finding of violation of sec. 343.47 (1), Stats., by appellants, and tended to prove some of the testimony given by appellants to be untrue.

Harley Heinz, owner of the dog, had duly licensed the same, but at the time of the commission of the offense by appellants, the license tag was not affixed to the dog’s collar. In view of this, appellant’s counsel contends that sec. 174.10 (1), Stats., prevented them from being prosecuted under sec. 343.47 (1), and they rely upon the statement in the decision of this court in State v. Garbe, 256 Wis. 86, 89, 39 N. W. (2d) 743, reading:

“The prerequisite facts required by the portion of sec. 174.10, quoted, do not affirmatively appear and no civil or criminal action may be maintained for the dog’s destruction.”

In the Garbe Case, we had a shooting and killing of a dog with no element of cruelty to animals present. In the instant case, we have an instance of extreme cruelty to a dog. In the light of this, we believe we should make a further analysis of sec. 174.10 (1), Stats., which reads as follows:

“The fact that a dog is without a license attached to a collar shall be presumptive evidence that the dog is unlicensed. No action shall be maintained for an injury to or the destruction of a dog without a tag, unless it shall appear affirmatively that the dog is duly licensed and that a tag had been properly attached to the collar of the dog and had been lost or removed without the knowledge or consent of the owner, or that the dog is not required to be licensed. . . .”

, The question is whether the words “no action” contained in that statute should be held to include criminal, as well as civil actions, or whether it should be construed to refer to civil actions only.

The words “action” or “actions” appearing in a statute have been construed by many courts as to whether such terms embrace criminal as well as civil actions, or whether they are limited solely to civil actions. The following decisions have construed such terms in a particular statute to refer only to civil, and not to criminal, actions: United States v. Safeway Stores (10th Cir.), 140 Fed. (2d) 834, 838, 839; Calkins v. State, 14 Ohio St. 222, 233; Harger v. Thomas, 44 Pa. 128, 130, 84 Am. Dec. 422; Commonwealth v. Gallo, 275 Mass. 320, 335, 175 N. E. 718; United States v. Goodhues (D. C. Md.), 53 Fed. (2d) 696, 701; and Wynn v. Commonwealth, 198 Ky. 644, 249 S. W. 783. Probably an equal ' number of decisions could be cited contra to the effect that the use of the word “action” includes criminal actions.

Because of this division of authority, it is apparent that the use of the term “action” in sec. 174.10 (1), Stats., is an ambiguous one, and it is for this-court to construe the legislative intent. No definition of the word “action” is included among the definitions appearing in ch. 370, Stats., entitled “Construction of Statutes.” Secs. 260.03 and 260.05 do refer to the fact that actions may be criminal as well as civil, but ch. 260 is entitled “Civil Actions, and Parties Thereto,” and we do not construe secs. 260.03 and 260.05 to have been intended by the legislature to provide that wherever the word “action” appears in a statute it must be deemed to include a criminal as well as civil action. Furthermore, even if secs. 260.03 and 260.05 were construed as providing a definition of “action,” sec. 260.01 limits their scope to Title XXVj Stats., which embraces only chs. 260 to 281, inclusive, and such definitions would not apply to any other statute outside of Title XXV.

It would lead to an absurd result to hold that the legislature considers it to be a crime to cruelly maim a dog with a license tag on its collar, while it is not a crime to inflict the same cruelty upon another dog without such a tag on its collar. There is the well-known principle of statutory construction that unreasonableness or absurdity is to be avoided. This is well stated in 50 Am. Jur., Statutes, p. 385, sec. 377, as follows:

“A statute subject to interpretation is presumed not to have been intended to produce absurd consequences, but to have the most reasonable operation that its language permits, and it is a general rule that where a statute is ambiguous in terms and fairly susceptible of two constructions, the unreasonableness or absurdity which may follow one construction or the other may properly be considered. In some cases involving the construction of a statute, considerations of what is reasonable are even regarded as having potent influence. If possible, doubtful provisions should be given a reasonable, rational, sensible, and intelligent construction. Unreasonable, absurd, or ridiculous consequences should be avoided.”

Sec. 343.47, Stats., also 'applies to all domestic animals, such as horses, cattle, sheep, pigs, etc., as well as dogs. The evident'purpose of sec. 174.10 (1) was to penalize the dog owner who fails to purchase a license, and not to relieve from criminal liability the person who cruelly maims or tortures a dog. The cruelty which sec. 343.47 was intended to punish is just as abhorrent, from the standpoint of public morals, in the case of an unlicensed dog as in the case of one whose license is affixed to its collar.

If we were considering the meaning of sec. 174.10 (1), Stats., for the first time in this case, we would construe such statute as only referring to civil actions, and not to criminal actions, in order to avoid absurd and unreasonable consequences. This leaves as the remaining question whether our decision in State v. Garbe, supra, must be adhered to under the rule of stare decisis.

Such decision did not involve a “rule of property” nor establish a rule to be followed in commercial transactions. Courts should be most reluctant to overrule a prior decision that lays down a “rule of property” or a rule that governs commercial transactions. Furthermore, courts are more prone not to apply the doctrine of stare decisis to a single decision as distinguished from a .line of decisions adhering to the same principle. 14 Am. Jur., Courts, p. 295, sec. 82. The rule that legislative intent may be based upon inaction of the legislature following a court decision, construing a statute does not apply here because State v. Garbe, supra, was decided in 1949, and there has been but one complete session of the legislature since then — that of 1951. The failure of a single session of the legislature to act to amend a law following a single court decision is not accorded much weight in ascertaining legislative intent. 50 Am. Jur., Statutes, p. 318, sec. 326, states the applicable principle as follows:

“It is a general rule that the intent of the legislature is indicated by its action, and not by its failure to act. On the other hand, it has been declared that the silence of the legislature, when it has authority to speak, may sometimes give rise to an implication as to the legislative purpose, the nature and extent of that implication depending on the nature of the legislative power and the effect of its exercise. The fact that the legislature has not seen fit by amendment to express disapproval of a contemporaneous or judicial interpretation of a particular statute, has been referred to as bolstering such construction of the statute, or as persuasive evidence of the adoption of the judicial construction. In this respect, it has been declared that where a judicial construction has been placed upon the language of a statute for a long period of time, so that there has been abundant opportunity for the lawmaking power to give further expression to its will, the failure to do so amounts to legislative approval and ratification of the construction placed upon the statute by the court, . . .” (Emphasis supplied.)

It is, therefore, our conclusion that this court should not invoke the doctrine of stare decisis, and State v. Garbe, supra, is overruled in so far as it construes sec. 174.10 (1), Stats., as being applicable to criminal as well as civil actions.

By the Court. — Judgment affirmed.