State v. Anderson

• Decision Date: 23 December 1920
• Parties: STATE v. ANDERSON.
• Court: Tennessee Supreme Court

234 S.W. 768

144 Tenn. 564

STATE v. ANDERSON.

Supreme Court of Tennessee.

December 23, 1920

Dissenting Opinions November 28, 1921.

Appeal from Circuit Court, Loudon County; S. C. Brown, Judge.

J. B Anderson was indicted under a statute regulating the ownership and keeping of dogs. From a judgment quashing the indictment, the State appeals. Reversed and remanded.

Bachman J., and L. D. Smith, Special Judge, dissenting.

Wm. H Swiggart, Jr., Asst. Atty. Gen., for the State.

S. P Dannel, of Loudon, for appellee.

HALL J.

This is an appeal by the state from a judgment of the circuit court of Loudon county quashing an indictment on motion of the defendant.

The indictment is predicated upon chapter 61 of the Public Acts of 1919, regulating the ownership and keeping of dogs, and was quashed by the trial judge upon the ground that said statute is unconstitutional and void. The indictment contains two counts.

The first count charges that the defendant, J. B. Anderson, who is the duly elected and qualified tax assessor for Loudon county, while making the assessment of property for taxation in said county for the year 1920, unlawfully and willfully did fail, neglect, and refuse, when assessing the property of each property holder in said county, to make diligent, or any, inquiry as to the number of dogs owned, harbored, or kept by the person assessed by him, and failed to make demand for the payment of the license fee required by section 1 of said statute above referred to.

The second count charges that the defendant, acting in his official capacity, willfully failed, neglected, and refused to keep a record of the persons owning dogs in said county, and a record of the dogs paid for with a description thereof in a well-bound book, and did unlawfully and willfully fail, neglect, and refuse to keep a stub record, or a copy of the receipts given by him for money paid to him for dog licenses, as provided by section 2 of said statute.

The motion to quash challenged the constitutionality of said statute upon four grounds:

(1) Because it is in conflict with section 28 of article 2 of the state Constitution, which is the taxing clause of said Constitution.

(2) Because it is in conflict with the provisions of section 8 of article 1 of said Constitution, which provides that no man shall be taken or imprisoned, or disseised of his freehold, liberties, or privileges, or outlawed or exiled, or in any manner destroyed or deprived of his life, liberty, or property, but by the judgment of his peers or the law of the land.

(3) Because it is in violation of section 18 of article 1 of said Constitution, prohibiting imprisonment for debt in civil cases.

(4) Because it is vicious class legislation, and is, therefore, violative of section 8 of article 11 of said Constitution, in that it levies a tax, not for the state or governmental purposes, "but for the purpose of redressing the injuries done, or damage done, to certain individuals through the wrongs or faults of others."

The trial judge sustained the motion to quash, as before stated; his judgment reciting that the court was of the opinion that the statute is unconstitutional for the reasons set forth in the motion to quash, and particularly in the first and fourth grounds of the motion. A judgment was accordingly rendered, and defendant was ordered discharged.

The state assigns the action of the trial judge in quashing said indictment on the several grounds stated in the defendant's motion for error, and insists that the judgment of the trial court should be reversed, and the case remanded to the end that the defendant may be required to answer the charge laid in the indictment upon its merits.

The title of the statute under consideration is as follows:

"A bill to be entitled an act to regulate the owning, keeping or harboring of dogs, so as to protect the safety of the people and of property; to provide a license fee to be paid for each dog owned, kept, or harbored in this state, and to provide for the disposition of such fees; to provide penalties for the failure of certain officials to enforce this act, and to provide penalties for a violation of the provisions of this act."

Section 1 of the act fixes the amount to be paid either to the county assessor, or to the county trustee "as an annual license fee," and enjoins on the county tax assessor the duty of making diligent inquiry as to the number of dogs subject to the license fee while he is assessing the property in the county, and of demanding payment when the license fee has not been otherwise paid.

Sections 2 and 5 of said statute define the duties of the county tax assessor with regard to the ascertaining of the dogs on which a license fee is to be paid, with the names of the persons required to pay same, and to define his duties with regard to the collection of said fees.

Section 3 provides the method for the accounting by the tax assessor for money paid to him under the provisions of the statute, and requires that all such money shall be paid to the county trustee, to be kept separately for a fund to be known as the "sheep fund," a record of which is also to be kept by the county court clerk.

Section 6 makes it a misdemeanor in office for the county tax assessor, or the county trustee, or any other person, to fail or refuse to perform the duties enjoined upon them by the provisions of the statute.

Section 7 requires the disclosure by every person subject to taxation in any county of the number of dogs owned, kept, or harbored by him, or by any member of the family residing with him, and providing further that any person who shall make a false statement under oath to the county assessor, or county trustee, as to the number, kind, and sex of such dog or dogs owned, kept, or harbored by him shall be deemed guilty of perjury, and upon conviction thereof shall be punished by law for such offense.

Sections 4, 8, 9, and 10 define certain acts with regard to the keeping, owning, or harboring of dogs as misdemeanors, and fix the punishment therefor.

Sections 11, 12, and 13 relate to the disposition of all money derived from the license fees, constituting the same as a "sheep fund," for the payment "of damages sustained by sheep owners of sheep killed, maimed or damaged by any dog or dogs within any county of the state." To such fund is also to be added all fines assessed and collected under the provisions of the statute. In section 13 is contained the provision that whenever the name of the owner of any dog killing or damaging sheep is known, the right of action accruing to the owner of the injured sheep against the owner of the dog is required to be assigned to the county trustee, and suit must be brought to reimburse the "sheep fund" for money paid out for such damage.

Section 14 fixes the compensation of the tax assessor for each dog license issued by him, and requires that a metal tag containing an identification number be issued for each dog licensed.

In section 15 it is provided that the statute shall not apply to dogs brought into the state temporarily and solely for the purpose of "bench shows," sport, etc.

Section 16 provides that the license fee for each year must be paid on the first day of each year after 1919, April 15th being prescribed as the day of payment for the year 1919, the statute having been enacted on March 26, 1919.

Section 17 contains provisions with regard to the disposition of the "sheep fund," and provides that that portion of such fund remaining in the hands of the county trustee on May 1st, which was collected during the previous calendar year, must be turned over to and become "a part of the common school fund of the county in which the fund was collected." The "sheep fund" is to be kept on deposit with interest at not less than 3 per cent.

We are of the opinion, after a careful examination of the authorities bearing upon the questions presented, that said statute is not subject to the constitutional objections urged against it, but is a valid exercise of the police power of the state for the purpose, as expressly stated in the title of the statute, of protecting "the safety of the people and of property." The police power is coexistent with the taxing power, but it is in no wise dependent thereon, and in the exercise of the police power the Legislature is not hampered by any limitation placed by the Constitution on the exercise of the taxing power of the Legislature.

We do not think that the imposition of a license fee as a condition precedent to the right of citizens of this state to own or keep a dog under the terms and purpose of the statute involved, is the levying of a tax under the state's taxing power, but is a method adopted by the Legislature of regulating the keeping of dogs, designed expressly to reduce their number, and to discourage persons from keeping or harboring worthless dogs with vicious tendencies.

The purpose and object of the statute is clearly stated in the first clause of the title as the regulation of the owning, keeping, and harboring of dogs, so as to protect the safety of the people and of property. The remaining clauses of the caption merely relate to the means by which this purpose and object are to be accomplished, by providing a license fee to be paid for each dog, providing for the disposition of such license fees, and by providing penalties for the violation of the statute, whether by the official required to enforce it or by the citizen.

There is a marked distinction between taxation for revenue, as authorized and limited by section 28 of article 2 of our Constitution, and the imposition of license fees for the purpose of regulation in the exercise of the police power of the state.

The rule is stated by Mr....