Barefield v. State

• Decision Date: 29 June 1918
• Docket Number: 4 Div. 556
• Parties: BAREFIELD v. STATE.
• Court: Alabama Court of Appeals

79 So. 396

16 Ala.App. 491

BAREFIELD v. STATE.

4 Div. 556

Court of Appeals of Alabama

June 29, 1918

Appeal from Circuit Court, Dale County; J.S. Williams, Judge.

W.D Barefield was convicted of failing to list a dog for taxation, and he appeals. Affirmed.

T.M Espy, of Dothan, for appellant.

F. Loyd Tate, Atty. Gen., and Emmett S. Thigpen, Asst. Atty. Gen for the State.

BROWN P.J.

The defendant was convicted of the offense denounced by section 6 of the act approved September 18, 1915, page 599, Acts 1915. Section 1 of this act requires the listing of dogs for taxation by the owner or tax assessor without valuation being affixed, and section 2 provides:

"The owner of every male dog over four months of age shall pay a license or privilege tax thereon of one dollar and of every female dog" over four months of age "one dollar. The first assessment under this act shall be made in the year 1915, between the first day of October and the 31st day of December. Said license or privilege tax shall be due and collectible as other taxes and collected by the tax collector and paid to the county treasurer, or the custodian of State or county funds. The treasurer or custodian of said funds shall keep such license or privilege tax on dogs separate from other funds. The amount collected by said license or privilege tax on dogs shall be used to indemnify losses by the killing or injuring of sheep or other live stock by dogs, as herein provided: Provided that this act shall not apply to dogs in municipal corporations which impose tag tax of at least one dollar per head on such dogs.

Section 3 of the act provides the method of proving claims for damages or injury to stock by dogs, and authorizes the court of county commissioners or like boards of the counties to direct payment of such injury or damage out of the fund created by the license tax levied by the act, and section 6 provides that any person who shall keep or harbor a dog on his premises or elsewhere, and who fails or refuses to pay the license or privilege tax thereon when due, shall be fined not exceeding $5 for such offense. The sole contention of the appellant here is that the tax levied by this act is a property tax, and that the act is violative of section 211 of the Constitution, providing that:

"All taxes levied on property in this state shall be assessed in exact proportion to the value of such property."

It is well settled that the power of the state to tax, so far as it is not restrained by the Constitution, is a legislative power, and cannot be controlled by the judiciary; that the quoted section is a limitation on the power of the legislature, and relates to direct tax on property, and that property is not the only subject of taxation in this state ( Phoenix Carpet Co. v. State, 118 Ala. 143, 22 So. 627, 72 Am.St.Rep. 143), but this section has no reference to privilege taxes for the exercise of privileges, occupations, and franchises (Goldsmith v. Huntsville, 120 Ala. 182, 24 So. 509; City of Montgomery, In re Know, 64 Ala. 463; W.U. Tel. Co. v. State Board, 80 Ala. 273, 60 Am.Rep. 99; Anniston v. Southern Railway, 112 Ala. 557, 20 So. 915; Capitol Co. v. Board Montgomery County, 117 Ala. 303, 23 So. 970).

The tax here is not levied on the property, but is levied against the owner of the dog as a license or privilege tax. This fact differentiates this statute from the one considered and condemned in Smith v. Court of County Commissioners, 117 Ala. 196, 23 South. 141.

The act there considered provided, "There is hereby levied a specific tax for the benefit of public roads, upon the following described property, to wit," etc., so the question is, Can the Legislature tax the privilege of owning and keeping a dog?

It is well settled that the owner of a dog has a property right therein which will sustain an action for its wrongful destruction or injury, and the statutes of this state make it a subject of larceny. Code 1907, § 7325; Minor v. Coleman, 74 So. 841.

"All rights of property are held subject to such reasonable control and regulation of the mode of keeping and use as the Legislature, under the police power vested in them by the Constitution of the commonwealth may think necessary for the preventing of injuries to the rights of others and the security of the public health and welfare. In the exercise of this power, the Legislature may not only provide that certain kinds of property (either absolutely or when held in such a manner or under such circumstances as to be injurious, dangerous or noxious) may be seized and confiscated upon legal process after notice and hearing, but may also, when necessary to insure the public safety authorize them to be summarily destroyed by the municipal authorities, without previous notice to the owner--as in the familiar cases of pulling down buildings to prevent the spreading of a conflagration or the impending fall of the buildings themselves, throwing overboard decaying or infected food, or abating other nuisances dangerous to health." Blair

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