power, it admittedly extends to the protection of the lives, health and property of the citizens, and to the preservation of good order and the public morals."

And in the case, Waters v. People, 23 Colo. 324 33, 58 Am. St. Rep. 215, 46 Pac. 112, 33 L. R. A. 836, it was held, that "The killing of doves as they are released from a trap, merely to improve skill in marksmanship, or for sport and amusement, though without specific intent to inflict pain or torture, is within the inhibition of the statute, and punishable." In the course of the opinion, it was said: "It is of common knowledge that, within the past few years, as incident to the progress of civilization, and as the direct outgrowth of that tender solicitude for the brute creation which keeps pace with man's increased knowledge of their life and habits, laws, such as the one under consideration, have been enacted by the various states, having the common object of protecting these dumb creatures from ill-treatment by man. Their aim is not only to protect these animals, but to conserve the public morals, both of which are undoubtedly subjects of legislation."

The docking of a horse's tail is cruelty, not only because of the torture inflicted by the operation, but because, by depriving the horse of the use of his tail, he is deprived of the use of a weapon supplied him by nature for his protection from the myriads of winged pests that infest the land. Counsel insist that the question of cruelty is not involved, and that, assuming that the legislature has full power to prohibit docking, it has not the power to prohibit the use of the horse, after his tail has been docked; and, conceding that the use of property may be taken away for the public good, without compensation to the owner, that the prohibition of the right to drive, work and use an unregistered horse does not tend to the protection of the health, comfort or good morals of the community, and is not, therefore, a valid exercise of the police power. They say that, as the act itself is silent upon the subject of the purpose of the legislature in prohibiting the use of docked horses, unless we can clearly perceive from the terms of the act that 325 the thing prohibited necessarily affects the public morals, we should not sustain it; that the sight of docked horses does not call to mind the process by which the tail was obliterated; that there is no difference in appearance between a registered and an unregistered docked horse; and that a docked horse is not an unsightly object. That whether the statute can or cannot be justified as an exercise of the police power, is a judicial, and not a legislative, question.

It belongs to the legislative department to exert the police power of the state, and to determine primarily what measures are appropriate and needful for the protection of the public morals, the public health or the public safety: Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. Rep. 273, 31 L. ed. 205.

"The public interests imperatively demand that legislative enactments should be recognized and enforced by the courts as embodying the will of the people, unless they are plainly and palpably, beyond all question, in violation of the fundamental law of the constitution": Atkin v. Kansas, 191 U. S. 223, 24 Sup. Ct. Rep. 124, 48 L. ed. 158.

It is said that the police power of the state is founded largely upon the maxim: "Use your property in such manner as not to injure that of another"; and counsel insist that the driving of an unregistered docked horse injures no one, and that as the police power is founded upon the maxim stated, unless the use of an unregistered docked horse can be shown to be injurious to others, the statute cannot be sustained as a valid exercise of the police power. "The welfare of the people is the supreme law," is a maxim of the law; and it is upon these two maxims that the police power of the state is largely based. the exercise of the police power, the legislature has a large discretion, and it is our duty to sustain such legislation unless it is clearly and palpably and beyond all question in violation of the constitution.

In

326 The fact that the legislature has failed to state that the use of an unregistered docked horse is in its opinion contrary to the public morals does not preclude us from sustaining the statute upon that theory, for we must sustain the law if any sound and reasonable theory can be advanced as a basis for our judgment. It is urged by the attorney general that the legislation in question can be sustained under the police power of the state, because it tends to conserve the public morals; that seeing frequently the mutilated and disfigured animals sears the conscience and hardens the minds of the people, until they become accustomed to look upon these things as a matter of course. The same thought was expressed by Pope in a few lines. And it is as true in our day as it was in his time, that although we may instinctively hate vice, yet if we allow ourselves to become familiar with it, we, in turn, become depraved. It was upon this theory that Judge Carpenter sustained the law, and we fully agree with him that constantly seeing the disfigured and mutilated animals tends to corrupt the public morals.

We are of opinion that, in forbidding the use of a docked horse, the legislature has not exceeded its authority; that the interdiction is a reasonable and valid exercise of the police power of the state; and that the provisions of the federal and the state constitutions have not been violated. The questions here presented have been considered in very many cases by the supreme court of the United States. We shall not undertake a review of these decisions, but shall cite from a few of the more recent ones which, in our opinion, clearly sustain the right of the legislature to enact such statutes as the one now assailed.

The legislature of Kansas declared all places where intoxicating liquors were manufactured or sold to be common nuisances and that, whenever by the 327 judgment of the court, such place was found to be a nuisance, the sheriff should be directed to shut up and abate such place, and destroy all property used in keeping and maintaining such nuisance. One Mugler, at the time of the passage of the act, was the owner of a brewery, and engaged in the manufacture of malt liquors. The sale of which he was found guilty occurred in the state after the act took effect, and was of beer manufactured before its passage. The buildings and machinery constituting the breweries were of little value if not used for the purpose of. manufacturing beer. It was claimed by Mugler that the judgment of the court sustaining the statute and directing the destruction of his brewery deprived him of his property without due process of law. The law was upheld by the supreme court in Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. Rep. 273, 31 L. ed. 205; Mr. Justice Harlan, in the course of the opinion, said: "If, in the judgment of the legislature, the manufacture of intoxicating liquors for the maker's own use, as a beverage, would tend to cripple, if it did not defeat, the efforts to guard the community against the evils attending the excessive use of such liquor, it is not for the courts, upon their views as to what is best and safest for the community, to disregard the legislative determination of that question. So far from such a regu lation having no relation to the general end sought to be accomplished, the entire scheme of prohibition, as embodied in the constitution and laws of Kansas, might fail, if the right of each citizen to manufacture intoxicating liquors for his own use as a beverage were recognized."

Respecting Mugler's claim that his property, if not employed in the manufacture of beer, would be of no value, and that the prohibition of it being so employed was, in effect, a taking

of the property for public use without compensation, and depriving the 328 citizen of his property without due process of law, Justice Harlan said: "This interpretation of the fourteenth amendment is inadmissible. It cannot be supposed that the states intended, by adopting that amendment, to impose restraints upon the exercise of their powers for the protection of the safety, health, or morals of the community. . . . . The principle, that no person shall be deprived of life, liberty or property without due process of law, was embodied, in substance, in the constitutions of nearly, if not all, of the states at the time of the adoption of the fourteenth amendment; and it has never been regarded as incompatible with the principle, equally vital, because essential to the peace and safety of society, that all property in the country is held under the implied obligation that the owner's use of it shall not be injurious to the community."

Letters patent granting to Henry C. De Witt and assigns the exclusive right to make, use and vend to others an article known as Aurora Oil were issued in 1867. By a statute of Kentucky, passed in the year 1874, the sale or use of oil that would ignite or permanently burn at a less temperature than 130° Fahrenheit was prohibited. The statute further provided that inspectors were required to brand casks and and barrels containing oil, with the words "standard oil," or with the words "unsafe for illuminating purposes," as inspection showed was proper. The assignee of De Witt was convicted on the charge of selling oil known as Aurora Oil, the cask containing which had been previously branded by an authorized inspector with the words "unsafe for illuminating purposes." It was admitted that the Aurora Oil could not be made to conform to the standard of test required by the Kentucky statute as a prerequisite to the right to sell within that state illuminating oils 329 of the kind designated. In the case Patterson v. Kentucky, 97 U. S. 501, 24 L. ed. 1115, the conviction was sustained and the law upheld. The court said: "By the settled doctrines of this court the police power extends, at least, to the protection of the lives, the health, and the property of the community, against the injurious exercise by any citizen of his own rights. State legislation, strictly and legitimately for police purposes, does not, in the sense of the constitution, necessarily intrench upon any authority which has been confided, expressly or by implication, to the national government. The Kentucky statute under examination mani

festly belongs to that class of legislation. It is, in the best sense, a mere police regulation, deemed essential for the protection of the lives and property of citizens. It expresses in the most solemn form the deliberate judgment of the state that burning fluids which ignite or permanently burn at less than a prescribed temperature are unsafe for illuminating purposes. Whether the policy thus pursued by the state is wise or unwise, it is not the province of the national authorities to determine. That belongs to each state, under its own sense of duty, and in view of the provisions of its own constitution. Its action, in those respects, is beyond the corrective power of this court."

In Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. ed. 989, it is held that "All rights are subject to the police power of a state, and if the public safety or the public morals require the discontinuance of any manufacture or traffic, the legislature may provide for its discontinuance, notwithstanding individuals or corporations may thereby suffer inconvenience; and that as the police power of a state extends to the protection of the lives health, and property of her citizens, the maintenance of good order, and the preservation of the public morals, the legislature cannot, by any contract, 330 devest itself of the power to provide for these objects."

In Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. Rep. 499, 38 L. ed. 385, it is said: "The extent and limits of what is known as the police power have been a fruitful subject of discussion in the appellate courts of nearly every state in the Union. It is universally conceded to include everything essential to the public safety, health and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance. . . . . Beyond this, however, the state may interfere wherever the public interests demand it, and in this particular a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests." And the court upheld the New York statute authorizing the summary destruction of nets set or maintained on the waters of the state in violation of the statute enacted for the protection of fish. At page 142 of 152 U. S., the court says: "It is said, however, that the nets are not in themselves a nuisance, but are perfectly lawful acts of manufacture, and are ordinarily used for a lawful purpose. This is, however, by no means a conclusive answer. Many articles, such, for instance, as cards, dice and other articles used