Estrin v. Moss

• Decision Date: 26 June 1968
• Citation: 430 S.W.2d 345,221 Tenn. 657,25 McCanless 657
• Parties: , 221 Tenn. 657 Abbott ESTRIN, Appellant, v. W. F. MOSS, Commissioner of Agriculture of Tennessee, Appellee.
• Court: Tennessee Supreme Court

Page 345

430 S.W.2d 345

25 McCanless 657, 221 Tenn. 657

Abbott ESTRIN, Appellant, v. W. F. MOSS, Commissioner of Agriculture of Tennessee, Appellee.

Supreme Court of Tennessee.

June 26, 1968.

Ben West, Nashville, for appellant.

George F. McCanless, Atty. Gen., and Paul Jennings, Asst. Atty. Gen., Nashville, for appellee.

OPINION

CHATTIN, Justice.

This is an appeal from a decree of the Chancery Court upholding the constitutionality of Chapter 14 and Chapter 53 of the Public Acts of Tennessee, 1955 and 1961, respectively, codified as T.C.A. Chapter 6 of Title 43, Sections 609--618, inclusive. We affirm the Chancellor.

We will refer to the parties as they appeared in the trial court. Complainant, Abbott Estrin, is President of the Abbott Exterminating Company, a Tennessee corporation. The Company is engaged in the business of pest control and services customers in this and neighboring states. Pest control operators are regulated by the provisions of T.C.A. Sections 43--609--43--618, inclusive.

Defendant, W. F. Moss, Commissioner of Agriculture, is authorized and required to promulgate rules and regulations for the enforcement of the law.

T.C.A. Section 43--610 establishes a pest control licensing board.

T.C.A. Section 43--613 provides:

'Every licensed pest control operator shall enter into a written contract with the person, firm, or corporation employing him to prevent, control, or eradicate termites and a separate contract must be given for each structure or building except that an industrial complex or group of buildings may be covered by a single contract when they are integral parts of one industrial unit, and a garage, pump house, or other outbuilding commonly a part of a residential establishment may be covered by the same contract as that covering the residence itself provided such garages, etc., are not used as separate residential units. In the case of pretreatment of new structures the contracts or warranties required by the federal housing administration, the veterans administration, or other federal agency, shall be construed to be contracts and deemed sufficient to satisfy the requirements of this section. Each licensed pest control operator shall be required to report each month's business to the department of agriculture within fifteen (15) days of the end of each calendar month. At the time the licensed pest control operator files his report of the previous month's business he shall be required to file with the commissioner of agriculture a copy of all contracts for termite service issued during the period covered by the report and shall pay to the department of agriculture an operation fee of three dollars ($3.00) for each contract so reported. If any licensed pest control operator shall fail, neglect, or refuse to file the monthly report required above, by or before the specified date, such operator shall be required to pay a penalty of five dollars ($5.00) and an additional penalty for contracts that are not filed by the specified date in the amount of ten per cent (10%) of the operation fees required by this section for such contracts.'

T.C.A. Section 43--614 provides, in part:

'Any license may be suspended by the commissioner of agriculture after a hearing for any of the following causes:

* * *

* * *

'(4) If the license holder shall fail to make the registrations and/or reports required in § 43--611 and 43--613 or shall fail to pay the fees required therein.'

In January of 1967, complainant received a letter from the Commissioner. This letter was entitled: 'Notice of intention to revoke license.' The letter stated the grounds for revocation were, 'failure to file with the Commissioner of Agriculture a copy of the contracts for termite service which are listed below and with failure to pay the Department of Agriculture an operation fee of $3.00 on each of the below listed contracts.' A list of several hundred unreported contracts followed.

The letter set forth the provisions of the statute under which revocation was being instituted and complainant's right to a hearing, if requested.

Complainant received another letter from the Commissioner in February, 1967, which charged complainant with further similar violations as the first letter and listed several hundred new contracts unreported.

These letters were filed as exhibits to complainant's bill filed on March 8, 1967, which sought to restrain further action by the Commissioner on the ground T.C.A. Sections 43--609 through 43--618 were unconstitutional. The letters and a copy of 'Rules and Regulations Governing Pest Control Operators,' (Tennessee Department of Agriculture) are the only exhibits in the record.

Complainant insists Chapter 6 of Title 43 T.C.A. violates the equal protection clause of the Fourteenth Amendment to the Constitution of the United States and Sections 8 of Articles 1 and 11 of the Constitution of Tennessee as an unlawful classification of the pest control industry and an unconstitutional exercise of the police power of the legislature of this State.

If the legislation is for the beneficial interest of the public health, then it constitutes a reasonable exercise of police power, and is exclusively for the determination of the legislature and not subject to judicial review. Tennessee Board of Dispensing Opticians v. Eyear Corp., 218 Tenn. 60, 400 S.W.2d 734 (1966).

The power of the legislature to regulate business is a valid exercise of the police power of the State.

'The legislature of the State cannot prohibit an ordinary business but it may, * * * regulate the business to promote the health, safety, morals or general welfare of the public.' Ford Motor Company v. Pace, 206 Tenn. 559, 335 S.W.2d 360 (1960).

'This police power of the legislature embraces all matters reasonably deemed necessary or expedient for the safety, health, morals, comfort, domestic peace, private happiness, and welfare of the people.' McKesson & Robbins, Inc. v. Government Employees Department Store, Inc., 211 Tenn. 494, 365 S.W.2d 890 (1963).

'Legislation affecting alike all persons pursuing the same business under the same conditions is not class legislation.' 16 Am.Jur. (2d), Constitutional Law, Section 517, page 904.

It does not matter how many or how few persons are included in the classification. White Stores, Inc. v. Atkins, 202 Tenn. 180, 303 S.W.2d 720 (1957).

The sole test of the constitutionality of any particular classification is that it must be reasonable; that is, made upon a reasonable basis. Kelley v. Byington, 185 Tenn. 421, 206 S.W.2d 409 (1947).

'The later decisions of this Court and of the Federal Supreme Court have conceded to the legislature a very wide range of discretion in the matter of classification in police statutes and revenue statutes. The idea is that, if any possible reason can be conceived to justify the classification, it will be upheld.' Ogilvie v. Hailey, 141 Tenn. 392, 210 S.W. 645 (1918).

The reasonableness of any particular classification depends upon the particular facts of the case.

'There is no general rule by which to distinguish reasonable and lawful from unreasonable and arbitrary classification, the question being a practical one, dependent on experience and varying with the facts in each case.' Dilworth v. State, 204 Tenn. 522, 322 S.W.2d 219 (1959).

The Chapter of T.C.A. under attack provides entities engaged in the business of controlling pest and plant diseases. Under trolling pest and plant diseases. Under Section 43--609: 'Any person, firm or corporation who shall for compensation, give advice or engage in work, for the control or eradication of insect pests, plant diseases, pest animals, wood destroying organisms, or who shall solicit such work in any manner, shall first have secured a license from the State Department of Agriculture. Any person desiring such a license shall make written application to the State Department of Agriculture, stating the kind of work for which the license is desired. The person who is to be in charge of the applicant's pest control operation shall then be examined by a pest control licensing board hereinafter provided for.' And, 'When the pest control licensing board shall have certified to the Department of Agriculture that an applicant is qualified for a license, the Commissioner of Agriculture or his authorized representative shall designate said person as a qualified operator, and shall issue to the applicant a license * * *.' Each applicant must pay a registration fee and furnish a fidelity bond, before engaging in such business.

By the provisions of Section 43--613, 'every licensed pest control operator,' who is employed, 'to prevent, control or eradicate termites,' must enter into separate written contracts with each customer from whom he performs any service relating to termite control or eradication. A copy of each contract must be filed with the Department of Agriculture and a fee of $3.00 paid for each contract. All pest control operators, whether in the termite business or not, are required to file monthly reports, and where an operator is engaged in the termite service, he must report the contracts and pay the fees each month.

Complainant insists Section 43--613 is unconstitutional because the Section singles out termite exterminators and requires them to make and file written contracts, and pay a $3.00 fee. It is argued this constitutes an unlawful and unconstitutional classification. The argument is it is constitutionally unfair to treat termite exterminators any differently than the whole of the pest control industry.

The burden of showing the classification does not rest upon a reasonable basis is upon complainant. Darnell v. Shapard, 156 Tenn. 544, 3 S.W.2d 661 (1928); Terrell v. State, 210 Tenn. 632, 361 S.W.2d 489 (1962). If any possible reason can be conceived to justify the classification, or if the reasonableness be fairly debatable, this Court must uphold it. Phillips v. State, 202 Tenn. 402, 304 S.W.2d...