Jones v. Commonwealth , 81 Mass. 193 ( 1860 )

Metcalf, J.

The first section of St. 1859, c. 225, requires every owner of a dog, on or before the thirtieth day of April in each year, to cause it to be registered, numbered, described and licensed, in the office of the clerk of the town wherein he resides. By § 9, “ whoever keeps a dog not registered, numbered, described and licensed,” as required by § 1, “ shall forfeit the sum of ten dollars, to be recovered by complaint, to the use of the town wherein the dog is kept.” The plaintiff in error, ha t ing been convicted on a complaint for keeping a dog not registered, &c., and having had judgment passed upon him for that offence, now seeks to reverse the judgment, for the reason that the complaint does not allege that he was the owner of the dog so kept. The position taken by him is, that, as the owner only is required to cause the registering, &c., of a dog, the owner only is made liable to a penalty for keeping a dog not registered, See. We do not so construe the statute. If it were meant by the legislature that the penalty should be imposed on the owner only, we cannot suppose that it would have been in terms imposeb on the keeper, who may not be the owner. A distinction between the owne" and the keeper is also found in § 7, which provides that when town officers have drawn an order on the town treasurer, as directed by § 6, to pay the owner of sheep or lambs for the worrying, maiming or killing thereof by dogs, the town “ may recover against the keeper or owner of any dog or dogs concerned in doing the damage the full amount of the damage done, in an action of tort.” And by § 14, any city or town is authorized to make by-laws relating to “ dogs owned or kept in such city or town.”

If the provision of the statute had been that whoever keeps a ' dog not collared as directed by § 2 shall forfeit ten dollars, no one would suppose that the provision was intended to apply to the owner only. It may be thought that the provision would oe more reasonable than that in § 9, which is now in question, inasmuch as a keeper of a dog must know whether it is or is not collared, but may not know, nor have the means of knowing, whether it is registered, numbered and licensed, as the statute requires. This, however, is not for the consideration of the court. Judgment affirmed,.