Ray Mieham brought an action in justice court against Fred Hill to recover for the wrongful killing of a dog. Judgment was rendered in favor of Mieham for $50.00. 'Upon appeal to the Lucas Common Pleas, judgment was rendered in favor of Mieham for $75.00. Hill, in the Court of Appeals, seeks a reversal of the judgment, relying upon the decision of Edwards v. Parker. (Reported in 4 Abs. 253.)

It is claimed by Hill that the matter is settled by 5837 GC. which provides: — “A dog which has been listed and valued for taxation as personal property, and the tax upon such valuation and per capita tax upon such dog having been paid, if due, shall be considered as personal property and have all the rights and privileges and be subject to like lawful restraints as other live stock. A recovery shall not be had for the malicious and unlawful killing of such dog in excess of double the amount for which it is listed.”

The Court of Appeals held:

1. This section, in so far as it states that a dog listed and valued for taxation and upon which the general tax and per capita tax have been paid, shall be personal property, is but declarative of the common law as it existed in Ohio prior to the enactment of the statute. It does not provide that there can he no recovery for the unlawful killing of a dog which has not been so listed for taxation as personal property.

2. If the proper construction of this section is that it forbids the right to recover for the wrongful killing of a dog, it would interfere with the right of private property as guaranteed by the federal and state constitutions.

3. A dog is property and a statute which takes away the right of property by permitting its wanton and malicious destruction without redress would be unconstitutional.

4. It is not necessary by the terms of the statute to give it a construction which would make it an invasion of the right of private property, and therefore unconstitutional.

Judgment affirmed.

This judgment being in conflict with the judgment pronounced by the Court of Appeals of Hamilton County, (4 Abs. 253) the record wall be certified to the Supreme Court for review and final determination.