STATE1/20/1973
The opinion of the court was delivered by
This action differs from the norm as it delves into a subject which, in days of yore, seemingly did not disturb the good people of this prairie state.
We are told the present problem developed when the defendant, Vernon D. Claiborne, a resident of Johnson county who engages in the business of raising and fighting gamecocks, was advised by statements of the attorney general that cockfighting was illegal in Kansas, as violating the provisions of K.S.A. 1972 Supp. 21-4310, a statute proscribing cruelty to animals. Mr. Claiborne, believing the attorney general to be in error, instructed his counsel to advise the county attorney of Johnson county that he intended to fight gamecocks on his farm. Thereupon, the state commenced the instant action, on relation of the attorney general, for the purpose of obtaining a declaratory judgment pursuant to K.S.A. 60-1701. The trial court, after an evidentiary hearing, held in effect that cockfighting came within the prohibition of the statute. Claiborne has appealed from that ruling.
The basic question to be decided on appeal, although variously expressed in the defendant's statement of points, boils down to this, in our view: Does cockfighting fall within the prohibition of K.S.A. 1972 Supp. 21-4310 as constituting cruelty to animals? For present purposes the statute provides:
"(1) Cruelty to animals is:
(a) Subjecting any animal to cruel mistreatment; or
(b) Having custody of any animal and subjecting such animal to cruel neglect."
By way of background, in which we were woefully deficient before this appeal was processed, we find it written in that tome of wisdom, the Encyclopedia Britannica, that the sport was popular in ancient times in India , Persia, China and other Oriental countries, whence it was introduced into Greece and the Isles of the Aegean Sea. Cockfighting was enthusiastically embraced by the Romans, after some preliminary hesitancy, and was probably transported by Roman Legions into England where it was embraced by members of the royalty, becoming known as "the royal diversion."
At an early date in American history cockfighting made its debut in this virgin land, and it is recorded that George Washington, Thomas Jefferson and Alexander Hamilton were devotees of the sport. Frowns, however, were cast upon the diversion in some quarters especially those from the New England area. We find it said that Abraham Lincoln, in his New Salem days, umpired cockfights and we read in Lock v. Falkenstine, Okla. Cr., 380 P.2d 278, that it is reported Abraham Lincoln said to a group of citizens, who wished to wipe out gamecock fighting by federal laws: "As long as the Almighty permitted intelligent men, created in His image and likeness, to fight in public and kill each other while the world looks on approvingly, it's not for me to deprive the chickens of the same privilege."
Thinking has changed somewhat from the days of Henry VIII, who added a royal cockpit to his palace at Whitehall, and a majority of the states of the union appear to have enacted specific statutes banning the so-called sport. Kansas, however, has not seen fit to do so, and we were somewhat surprised to be advised upon oral argument that some eighteen or twenty cockfight pits are currently extant within the confines of this state. From territorial times until as late as July 1, 1970, cockfighting on Sunday was declared to be a misdemeanor along with horse racing, and playing at cards or any
game of any kind. (See Terr. Stat. 1855, ch. 53, ยง 33; K.S.A. 21-954.) By implication, cockfightin
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