Darnell v. Shapard

• Decision Date: 17 March 1928
• Parties: DARNELL et al. v. SHAPARD et al. GRAVES et al. v. THORN.
• Court: Tennessee Supreme Court

3 S.W.2d 661

156 Tenn. 544

DARNELL et al. v. SHAPARD et al.

GRAVES et al. v. THORN.

Supreme Court of Tennessee.

March 17, 1928

Appeal from Chancery Court, Bedford County; Thos. B. Lytle Chancellor.

Appeal from Chancery Court, Wilson County; J. W. Stout, Chancellor.

Suit by J. H. Darnell and others against W. A. Shapard, trustee, and others, and by John Graves and others against Harvey Thorn trustee. Decree for defendants in each case, and complainants appeal. Decree in each case affirmed, and each bill dismissed.

Cook J., dissenting.

GREEN C.J.

These suits were brought to enjoin enforcement of chapter 702 of the Private Acts of 1927, on the theory that this enactment was unconstitutional and void. Both chancellors upheld the validity of the act, and the complainants in each case appealed to this court. The cases were submitted separately to this court, but, as the chief questions raised are common to both, they may be disposed of in one opinion.

Chapter 702 of the Private Acts of 1927 is an act to regulate the keeping of dogs in the counties of Bedford, Maury, Montgomery, and Wilson; the counties being designated by name in the act.

It provided that every person owning or keeping a male dog shall pay a license fee of $1 and every person owning a female dog shall pay a license fee of $3 on or before June 1st of each year, to the county trustee; that any person owning a kennel shall pay a license fee of $10 upon twelve dogs or less, or a license fee of $15 upon more than twelve dogs, such dogs to be at all times confined unless accompanied by the owner or his agent, or unless on chase or returning from chase. It is made the duty of the county trustee to record the name of each person paying a license fee, with the date and amount of such payment, and whether the same is a kennel license fee or a dog license fee, together with the description and sex of each dog on which the license fee is paid, and the license tag number issued for such dog. The trustee is required to issue to the dog owner a metal license tag, numbered and bearing the year for which the license fee is paid. This tag is to be attached by the dog owner to a collar, which shall be worn at all times by the dog, except that the collar may be removed from hunting dogs while on chase or returning from chase. Supervision of the act is imposed upon the department of agriculture, division of game and fish. The county trustee is required to make monthly reports to this department and division, showing a list of names of all persons who have paid the license fee and the amounts collected and disbursed by the trustee under the provisions of the act. The trustee is to remit to the said department and division 25 per cent. of the gross amount collected by him, which sum shall be used by said department and division to defray expenses incident to enforcement of the act. The trustee is allowed to retain 15 per cent. of the amount thus collected by way of his compensation, and the balance of the fund collected from this source is to be held by the trustee in a fund known as the "dog license fund."

It is made a misdemeanor for any person to own, keep, or harbor a dog upon which the license fee has not been paid, or to permit a dog to run at large without wearing a tag, except as otherwise provided by the act. It is made the duty of the state game and fish warden and his deputies to look after the enforcement of the act and to cause the arrest and prosecution of persons violating the provisions of the act, and, upon conviction of any such person under the said act, one-half of the fine imposed and collected is to be paid to such game and fish warden.

Section 6 of the act outlines procedure with reference to the destruction of unlicensed dogs and dogs committing depredations. As a special attack is made on the provisions of section 6, it will be set out in full hereafter.

Provision is made for the compensation of the owner of any stock, fowl, or animal killed or injured by a dog out of the "dog license fund" by section 7. Under section 8, the county trustee, upon complaint made to him by the owner of stock, fowl, or animal injured by a dog, is required to designate two disinterested citizens to appraise said damage and make a written report thereof to the trustee. On receipt of said report, the trustee is required to make payment thereof out of the "dog license fund," and, in case the claims certified exceed the amount of the fund on hand at any time, such claims shall be paid in the order of their certification. Provision is made by section 9 of the act for the compensation out of said "dog license fund" of those bitten by a rabid dog for the expense of necessary medical treatment.

By other sections of the act it is made a misdemeanor for the county trustee to fail or refuse to perform the duties required of him in this connection, and the grand jury is given inquisitorial power in respect to violations of the act, and judges of courts exercising criminal jurisdiction are required to give in charge to their grand juries the provisions of the act.

As heretofore stated, this act in terms applies only to the counties of Bedford, Maury, Montgomery, and Wilson, and it is insisted that the act accordingly undertakes an arbitrary and unjustified classification of these four counties of the state, and consequently violates section 8 of article 1, and section 8 of article 11, of the Constitution. This objection to the act has given the court the gravest concern.

The regulation of the keeping of dogs is a matter within the police power of the state. State v. Anderson, 144 Tenn. 564, 234 S.W. 768, 19 A. L. R. 180; Ponder v. State, 141 Tenn. 481, 212 S.W. 417; State v. Erwin, 139 Tenn. 341, 200 S.W. 973.

The determination of the validity of acts of the Legislature attempting a classification of the counties of the state is largely influenced by the character of the legislation. If an act of the Legislature affects particular counties as governmental or political agencies, it is good. It is good if it affects only one county in this capacity. No argument is required to sustain such an act. If, however, an act of the Legislature primarily affects the citizens of particular counties or of one county in their individual relations, then such classification must rest on a reasonable basis, and, if the classification is arbitrary, the act is bad. State ex rel. v. Knox County, 154 Tenn. 483, 290 S.W. 405, 50 A. L. R. 1158; State ex rel. v. Trotter, 153 Tenn. 30, 281 S.W. 925; Wilson v. Wilson, 134 Tenn. 697, 185 S.W. 718; State v. Columbia, etc., Turn-Pike Company, 133 Tenn. 446, 181 S.W. 682; Redistricting Cases, 111 Tenn. 234, 80 S.W. 750.

One who assails classification made in a police measure must carry the burden of showing that it does not rest upon any reasonable basis, but that such classification is essentially arbitrary. Thomas v. State, 136 Tenn. 47, 188 S.W. 617; City of Memphis v. State ex rel., 133 Tenn. 83, 179 S.W. 631, L. R. A. 1916B, 1151, Ann. Cas. 1917C, 1056; Motlow v. State, 125 Tenn. 547, 145 S.W. 177, L. R. A. 1916F, 177.

If any possible reason can be conceived to justify such classification, it will be upheld and deemed reasonable. Peters v. O'Brien, 152 Tenn. 466, 278 S.W. 660; Hunter v. Conner, 152 Tenn. 258, 277 S.W. 71; Caldwell & Co. v. Lea, 152 Tenn. 48, 272 S.W. 715; Bank of Commerce & Trust Co. v. Senter, 149 Tenn. 569, 260 S.W. 144; Ogilvie v. Hailey, 141 Tenn. 392, 210 S.W. 645.

The decision of the Legislature as to what is a sufficient reason to justify a classification will not be reviewed by the courts unless it is palpably arbitrary. State ex rel. v. Schlitz Brewing Co., 104 Tenn. 715, 59 S.W. 1033, 78 Am. St. Rep. 941.

"And it does not follow, because the reason for the classification is not disclosed in the face of the act, that it is necessarily without reason and capricious. Reasons eminently wise and provident might control the lawmaking body, which do not appear upon the face of a statute, and for the courts to strike it down, because not readily perceptible, might well be criticised as an act of judicial usurpation." Condon v. Maloney and State ex rel. v. Condon, 108 Tenn. 82, 65 S.W. 871.

To the same effect, see State v. McKay, 137 Tenn. 280, 193 S.W. 99, Ann. Cas. 1917E, 158; and Sullivan v. State, 136 Tenn. 194, 188 S.W. 1153.

Bearing in mind the principles set out, all of which are firmly embedded in our cases, we are unable to conclude that the segregation of the four counties mentioned for this legislation is palpably arbitrary and without possible justification.

It is well known that the prevalence of dogs in any community is a particular menace to the raising of sheep, and involves that enterprise in great hazard. It may be supposed that in the four counties named the sheep industry has attained great proportions; that an especially large investment of money has been made by the citizens of these counties in such animals; that the prosperity of such counties is peculiarly dependent upon the sheep business; and that such counties are distinctly adapted to sheep. For reasons of this kind the Legislature might reasonably have concluded it wise to confer upon the four counties the protection of the act before us, and at the same time the Legislature might reasonably have concluded that the operation of the act in other counties of the state, not so well adapted to sheep raising, and where that industry was not developed, would be burdensome and of slight benefit.

It may be supposed further that the Legislature in the interest of diversified farming and the prosperity of the state as a whole, as well as individual counties, thought that the welfare of the people would not be promoted by encouraging the...