Mann v. District of Columbia , 22 App. D.C. 138 ( 1903 )

Mr. Justice Morris

delivered the opinion of the Court:

There is no substantial difference between this case and that of Campbell v. District of Columbia, 19 App. D. C. 131, which was decided on December 4, 1901, and wherein it was held that the death of a domestic animal does not terminate the owner’s property in it, and while he may be required to dispose of the carcass so that it will not become a nuisance, the municipal authorities cannot arbitrarily deprive him of his property by giving it to another; that the owner is entitled to a reasonable time for its removal; that he may remove it by the agency of others as well as by himself; and that this includes the right to dispose of it by sale, and the removal of the dead animal by the vendee. We see no reason under existing conditions to depart from that ruling. If conditions that may arise in the future should require or suggest a modification of it, it will be time to consider such conditions when they actually arise.

There is only one question involved in the present case which was not involved in the case of Campbell v. District of Columbia, and that is, whether the police regulation which has been cited, in so far as it provides for the removal of dead animals to a place to be designated or approved by the commissioners, and for the disposal of such animals there in accordance with a certain specified system, is applicable to the plaintiff in error for his removal of a dead animal to a place in the State of Virginia not designated or approved by the commissioners and for his disposal of it there in a manner not approved by them. And this question in the present case is not difficult of solution; for it is very plain that the commissioners of the District of Columbia are without authority of law to control the plaintiff in error in the disposition which he makes of his property outside of this District. It is not contended that he may not lawfully remove it out of the District ; and if he may lawfully remove it beyond the jurisdiction, it is difficult to see how the commissioners can lawfully determine what he shall do with it after it has been so removed. This is a question for the State of Virginia or for the local authorities of the county or district in that State to which the dead body has been removed, and not for the commissioners of the District of Columbia.

The regulation, therefore, under which this prosecution has been had must be construed to mean that when a person removes a dead animal to any place within the District of Columbia and disposes of it there, the place and manner of disposal must be subject to the approval of the commissioners of the District. The regulation cannot be allowed any extraterritorial force, except in the case of the contractor with the District, who is bound by his contract to comply with the law and the regulation. It is not applicable to the individual citizen who removes his property beyond the jurisdiction.

Of course, it may be conceded that the authorities of the State of Virginia may prohibit such removal into their State or county, and may regulate the disposal of the dead body there, if they do permit the removal. And it may also be conceded that the Congress of the United States in proper cases, either by virtue of its plenary power of legislation over the District of Columbia or under its authority to regulate commerce between the States, may regulate the matter of the removal of the dead bodies of animals from the District of Columbia. But there is no question here of anything of this hind. The place selected by the contractor and approved by the commissioners is itself in the State of Virginia. The ^ower of removal cannot be conceded to the one and denied to tne other.

We do not mean to be understood here as holding that if one moves the dead body of an animal from the District of Columbia to some place in the adjacent States of Maryland and Virginia, and there disposes of it in such manner as that it becomes a nuisance to the adjacent residents of this District, as when, for example, the place is so close to the border, and the manner of disposal generates odors offensive to the whole neighborhood, the offender may not be punished under the present or some similar regulation. On the contrary, we think he could and should be reached by proper regulation, even though there has been an actual physical removal of the dead body from the District. But no such case is presented here. There is a suggestion in argument that the place selected by the plaintiff in error for the disposal of the dead body here in question is so near to the Potomac river that persons passing upon the river may be offended by the noisome odors arising therefrom; and there is a possibility likewise that such noisome odors and effluvia may be wafted across the river into the District of Columbia and the city of Washington. But tliwo is no proof whatever of the existence of any such conditions, and no proof that such conditions are likely to exist. Their mere possibility cannot here be taken into consideration.

We are of opinion that there was error in the ruling of the police court. The judgment will be reversed, and the cause remanded to that court with directions to discharge the plaintiff in error. And it is so ordered.

A writ of error to the Supreme Court of the United States was 'prayed by the defendant in error and allowed June 26, 1903.