and its keeper in the jurisdiction of the assessor is sufficient, I think, to warrant the assessor in making the request for this information; and it is not a sufficient excuse for the keeper of the dogs to say that he is not a resident of the town, and therefore will not give the information. The description sought is, obviously, to make a subsequent identification of the dog possible, and might be helpful to the collector, and enable him to exterminate the right dog in case the tax should not be paid. Both as a police regulation, and as an aid in the scheme of taxation, the requirement is reasonable, and the injunction to give the written description does not, in words, run to the owner or possessor to be given only to the assessor of the town where the owner or possessor resides, but to be given "whenever required by the assessor;" and, if I am right in this conclusion that dogs are taxa TAX ON DOGS,-continued. error being sued out of the Supreme Court of the United States, the Court of Appeals was sustained and the statute declared not to be in conflict with the constitution of the United States. In the opinion the property right in a dog owned and kept in Louisiana is said to be determined by the legislature and highest courts of that state as conditional only and not absolute; so that the decison in the Sentell case would not necessarily determine the attitude of the Supreme Court of the United States in a case arising in New York State, where the court of last resort has declared the property right in dogs to be the same as that pertaining to any other species of personal property. Nevertheless, there are expressions in the Sentell case which seem to be in opposition to the views expressed by our Court of Appeals in Mullaly v. The People, above referred to. The Sentell case is referred to in Fox v. Mohawk & Hudson River Humane Society, supra, Judge Landon evidently considering the Sentell case not to be determinative of the validity of a similar statute in the state of New York. We are now considering the validity of a statute of this state under a clause in our state constitution. If there should seem to be any conflict of view between the highest courts of this state and the Supreme Court of the United States, upon the point at issue here, the view of our own Court of Appeals must prevail. In Towle v. Forny, 14 N. Y. 423, it was decided that where there is a conflict between the law as declared by federal courts and the highest appellate court of this state, our tribunals should follow the decisions of the state courts except in the cases where, by the constitution and laws of the United States, the judgments of the federal courts are of controlling au ble in the town where harbored, then the assessors of that tow fail in their duty if they fail to obtain this information to present to the board of supervisors of the county. The appellant urges that the action cannot be maintained in the name of the supervisor, but must be brought in the name of the town. Except for the direction in the section imposing the penalty, "to be recovered by the supervisor of the town," there could be no doubt but an action in the name of the town would be properly brought. Without now deciding that an action in the name of the town, under this section, could not be properly maintained, I am clearly of opinion that it may be maintained by the supervisor. The supervisor represents the town in such an action, and for the same cause no second action could be brought. The question of the disqualification of the justice of the peace TAX ON DOGS,-continued. thority. Indeed the Supreme Court of the United States has many times declared that upon the question of conflict between a statute of a state and the state constitution, the decision of the state court is conclusive upon the federal courts. (Merchants & Manufacturers Bank v. Pennsylvania, 167 U. S. 461; Williams v. Eggleston, 170 U. S. 304.) The validity of the statute relied upon by the appellant has never been directly passed upon by our Court of Appeals of this state, so far as I have learned. But it seems to me the language of the Mullaly opinion, although directly concerned with the question whether it is criminal to steal a dog, is a very strong indication of what that court would feel bound to do were the question of this statute directly presented. The statute can only be defended as an exercise of police power. It will be noted, from the examination of the portion of the county law applicable to the taxation of dogs, that the legislature does not declare a dog on which the tax has not been paid, a nuisance and authorize its destruction to abate a public nuisance; but the taking away of the right of action from the owner of the dog, which happens to be killed while the tax on it remains unpaid, seems to be rather in the nature of a punishment or penalty inflicted upon the owner for his failure to comply with the law. If this is the correct interpretation of the legislative intent, then the statute falls under the criticism contained in the opinion of Judge Andrews in Lawton v. Steele. 119 N. Y. 226, 23 N. E. 878, an action brought against certain officers acting as game protector for the destruction of nets used in Black river harbor in illegal fishing. The statute relied upon in that case by the defendant declared the nets so used to be a public nuisance, and authorized their su before whom the action was tried was raised by affidavits and opposed by affidavits in the county court. I see no reason why we should disturb the disposition there made of this claim. The judgment on the verdict of the jury was for $80, or 16 penalties. This was error There was only one demand and one refusal. The statute does not say the owner or possessor shall forfeit $5 for each dog he may own or possess, but does say he shall forfeit $5 for each refusal. The demand was single and the refusal single, and the forfeiture could have been only a single one. For this error, the judgment should be modified so as to stand as a judgment for $5 and costs in the lower courts, and no costs for either party on this appeal. $5. Judgment modified by reducing the recovery to one penalty, TAX ON DOGS,-continued. mary destruction, and the Court of Appeals say that the value of the net was small, and although the case came very near the border line the legislature had the power to declare nets so used to be public nuisances and to authorize their summary destruction by executive agents without resort to judicial proceedings, the destruction of the net being a necessary incident to the abatement of the public nuisance caused by the setting of nets in the public waterways, fishing privileges in which are for the benefit of all citizens under the restrictions provided by law. "The inquiry," says Judge Andrews, "in the present case comes to this; Whether the destruction of the nets set in violation of the law authorized and required by the act of 1883, is simply a proper, reasonable and necessary regulation for the abatement of the nuisance, or transcends that purpose and is to be regarded as an imposition and infliction of a forfeiture of the owner's right of property in the nets, in the nature of a punishment. We regard the case as very near the border line, but we think the legislature may be fairly sustained on the ground that the destruction of nets so placed is a reasonable incident of the power to abate the nuisance. The owner of the nets is deprived of his property, but not as the direct object of the law, but as an incident of the abatement of the nuisance." Judge Andrews says that the destruction of property cannot be decreed by the legislature as a forfeiture or penalty in the nature of punishment for the owner's misconduct, unless the property itself is a nuisance and its destruction necessary to accomplish the abatement of the nuisance. He says, "The legislature cannot go further. It cannot decree the destruction or forfeiture of property used so as to constitute a nuisance. TAX ON DOGS,-continued. as a punishment of the wrong, nor even, we think, to prevent a future illegal use of the property, it not being a nuisance per se, and appoint officers. to execute its mandate. The plain reason is that due process of law requires a hearing and trial before punishment or before forfeiture of property can be decreed for the owner's misconduct." Then, too, the fact is of much importance that the right to kill a dog on which the tax is not paid, is not conferred upon public officers, or executive agents alone, but is given to every one, and the motive inspiring the person to kill the dog is of no consequence. The exercise of police power is the function of sovereignty. Under that power personal and property rights are subjected to necessary restraints to secure the public good and the general welfare of the community. In its appropriate sphere is included everything essential to the safety, health, morals, and general good of the public, but, says the Court of Appeals, in Colon v. Lisk, 153 N. Y. 188; 47 N. E. 302, "To justify the State in thus interposing its authority in behalf of the public, it must appear first that the interests of the public generally, as distinguished from those of a particular class, require such interference; and second, that the means are reasonably necessary for the accomplishment of the purpose and are not unduly oppressive upon individuals. . . . Under the mere guise of a statute to protect against wrong, the legislature cannot arbitrarily strike down private rights and invade personal freedom, or confiscate private property. The police power must be exercised within its appropriate sphere and by appropriate methods. This power can be exercised only to promote the public good, and is always subject to judicial scrutiny. Whenever the legislature passes an act which transcends the limits of the police power, it is the duty of the judiciary to pronounce it invalid, and to nullify the legislative attempt to invade the citizen's rights." Is this drastic remedy legalizing their destruction necessary for the enforcement of the law providing for the taxation of dogs? And is it not unduly oppressive in its operation, when in case the owner does not pay his tax the very moment the warrant therefor is delivered to the collector, any enemy of the owner, perchance to vent some petty spite, can kill the dog and be free from any liability to pay damages? A public officer is supposed to act, in the discharge of his duty, from public motives, and it seems to me that the exercise of police power involving the destruction of private property, to say the least, should be in the hands of public officers and not committed to citizens at large, if the law under which the power is exercised is to come within the limitations pointed out by Judge Martin in Colon v. Lisk, supra, making it essential "that the means are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals." In the same opinion in the Colon case, Judge Martin also most pertinently says; "In discussing the constitutionality of this act it is to be remembered that the question is to be determined not by what has been done under it in any particular instance, but by what may be done under and by virtue of its authority." TAX ON DOGS,―continued. With these criteria before us, and in deference to the unmistakable trend of recent decisions in this state, I conclude that the statute relied upon by the defendant to defeat the plaintiff's right of action is unconstitutional and as this is the only defense suggested by the appellant, the judgment appealed from must be affirmed. PEOPLE v. THOMAS. 182 Misc. 170; 100 St. Rep. 191; 66 Supp. 191.] (Supreme Court, Special Term, New York County, July, 1900.) 1. INDICTMENT-DISMISSAL-EVIDENCE-SUFFICIENCY. Pen. Code, § 154, declares that, when a duty is enjoined by law on a public officer, every willful omission to perform it is punishable as a misdemeanor. Code Cr. Pro. § 256, prohibits the grand jury from receiving any but legal evidence. Held, that where a police captain was indicted under section 154 for failing to suppress a disorderly house in his pre NOTE.-MOTIONS TO SET ASIDE INDICTMENTS. a. The statute. b. Powers of court. 1. Prior to the Code of Criminal Procedure. 2. Between enactment of code and amendment of 1897. 3. Since the amendment of 1897. c. Grounds of motions. d. Practice-Appeal. a. The statute. The following sections of the Code of Criminal Procedure cover the entire field of statutory law upon this question: § 312. How defendant may answer indictment.-In answer to the indictment, the defendant may either move the court to set the same aside, or may demur or plead thereto. § 313. Indictment when set aside on motion. The indictment must be set aside by the court in which the defendant is arraigned, and upon his motion, in either of the following cases, but in no other. 1. When it is not found, indorsed and presented as prescribed in sections two hundred and sixty-eight and two hundred and seventy-two. 2. When a person has been permitted to be present during the session of |