Sutton v. State

• Decision Date: 11 June 1896
• Citation: 36 S.W. 697,96 Tenn. 696
• Parties: SUTTON v. STATE.
• Court: Tennessee Supreme Court

36 S.W. 697

96 Tenn. 696

SUTTON v. STATE.

Supreme Court of Tennessee.

June 11, 1896

Appeal from criminal court, Shelby county; L. P. Cooper, Judge.

Joe Sutton was convicted of unlawfully permitting his live stock to run at large, and appeals. Reversed.

James H. Malone and C. M. Bartran, for plaintiff.

Morgan & McFarland and the Attorney General, for the State.

CALDWELL J.

Joe Sutton was indicted and convicted in the criminal court of Shelby county for unlawfully and knowingly permitting his live stock to run at large in violation of what is known popularly at the "No-Fence Law," the same being chapter 182 of the acts of 1895. He was fined $25, and has appealed in error.

The indictment is in good form, and the proof is plenary; but the contention is made on behalf of the plaintiff in error that the statute is unconstitutional, and consequently that his motion to quash the indictment, and then his motion in arrest of judgment, should have been sustained. It is well to say preliminarily, in response to able arguments at the bar for and against the law, as a meritorious or undeserving measure that the courts have nothing to do with the mere policy or impolicy of any legislation, and therefore it is not for us to determine whether the end designed to be accomplished by the act mentioned is good or bad. Ballentine v. Mayor etc., 15 Lea, 634; Lynn v. Polk, 8 Lea, 228; Peck v. State, 86 Tenn. 262, 6 S.W. 389; Williams v. Nashville, 89 Tenn. 488, 15 S.W. 364; Manufacturing Co. v. Falls, 90 Tenn. 481, 16 S.W 1045. That was a question for the legislature, and its decision thereof is not subject to judicial review. Const art. 11, § 2; Cooley, Const. Lim. 202. The act is as follows:

"An act to encourage economy in the use of timber in the state of Tennessee, and for the protection of growing crops.

"Section 1. Be it enacted by the general assembly of the state of Tennessee, that in all the counties of the state having a population of not less than 30,000, and not more than 34,000, and of 55,000 and over, according to the federal census of 1890, it shall be unlawful for any owner of any horse, cow, sheep, goat, hog or other livestock to knowingly permit the same to run at large within the limits of such counties of this state; provided however it shall not be unlawful to use unfenced lands of this state in such counties (the owners of such lands not objecting) for summer range, if the livestock shall be placed under the care of a herdsman.

"Sec. 2. Be it further enacted, that the owner of livestock mentioned in section 1 of this act shall be liable for all damage done to the property of other persons while running at large in said counties of this state.

"Sec. 3. Be it further enacted, that in addition to the owner's liability for damage done by the livestock mentioned in section 1 the party shall have a lien on the animal doing the damage, and recover the same by attachment.

"Sec. 4. Be it further enacted, that any person violating this act shall be guilty of a misdemeanor, and, on conviction, shall be fined not less than twenty-five ($25) dollars nor more than one hundred ($100) dollars.

"Sec. 5. Be it further enacted, that it shall be the duty of the judges of the circuit and criminal courts of this state, in such counties, to make special reference to this act to the grand juries.

"Sec. 6. Be it further enacted, that nothing in this act shall be so construed as to amend or repeal the railroad fence and stock law.

"Sec. 7. Be it further enacted, that the provisions of this act shall apply to all the counties in this state which have a population of thirty-five thousand one hundred and over, which adjoin any county or counties falling under the provisions and descriptions of the first section of this act. Any county in the state may come under the action of this law by submitting the question to a vote of the qualified voters of the county at an election to be ordered by the county court at a quarterly term; and if a majority of said votes shall be cast in favor of said law, then said law shall apply to said county, regardless of its population.

"Sec. 8. Be it further enacted, that this act take effect from and after the first day of January, 1896." Acts 1895, c. 182, pp. 380, 381.

It will be noticed at once that the first section of the act creates an offense, and makes it applicable to some counties, and not to others, and that the particular counties to which it applies are to be determined alone by their respective population, within certain specified limits, "according to the federal census of 1890," all other counties being excluded from its operation. That special census is expressly made the sole and ever-continuing criterion by which to ascertain what counties shall be, and what counties shall not be, subject to the law; and that, too, for all time to come, and without reference to changes of condition or population subsequently occurring. Those counties included by the figures found in the federal census of 1890 are included in the operation of the law forever, and likewise those counties excluded by the figures found in that census are excluded from the law's operation forever; the question of inclusion in or exclusion from the ameliorations and burdens of the law not being affected in the least by subsequent increase or decrease in population, however great, or whenever occurring. The law does not apply to all counties having a population within the prescribed limits in 1895, when it was passed, nor in any future year, when it may be violated; but it applies only to those counties having such population in 1890, by the federal census of that year. As a consequence, the law may be applicable to some counties, and not to others having populations within the same limits when it was passed, or at some time thereafter, and it may also be applicable alike to some counties within, and to others without, those limits, at the time of its passage, or subsequently. The law, when attempted to be enforced, may, by reason of the controlling effect of a long-past census, be found to apply to some counties, and not to others then having the same population; and, for the same reason, it may also be found to apply alike to any number of counties at the time having different populations. Or, to state the same thing differently and more briefly, the law, as passed, includes some counties and excludes others of the same population at the time of the offense, and it also includes in the same class counties having different populations when the offense was committed. To illustrate: Each of the counties A. and B. now has a population within the limit of 30,000 to 34,000, but the law applies to A., and not to B., because A. had a population of 31,000, and B. of only 29,000, by the census of 1890; and each of the counties C. and D. now has a population within the same limit, yet the law applies to C., and not to D., because C. had 33,000, and D. 35,000, by that census. Thus it appears that the law does not apply to all counties now having the same limit of population. Only those within the limit by the census of 1890 are included. Those coming within the limit since that time, by change of population,-whether by increase, as in case of B., or by decrease, as in case of D.,-are excluded, with no possibility of ever being included. Next let us illustrate the fact that the law applies alike to counties now having different populations: M. now has 31,000, N. 29,000, O. 33,000, and P. 35,000; two of the four (N. and P.) being without, and two (M. and O.) being within, the limit of 30,000 to 34,000. Yet, notwithstanding the difference now existing, the law applies equally to all, because all were within that limit in 1890. Similar illustrations might be given in connection with the other limit of "55,000 and over," but we forbear. Such legislation is obviously partial, in the objectionable sense, and being so it is unconstitutional and void. It violates section 8 of article 1 of the constitution, which is as follows: "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." It deprives

the citizen of his "property" by a fine and a lien (sections 3 and 4), and yet it is not "the law of the land," because it does not apply equally and alike to all counties now and hereafter having the same population and does not extend to and embrace all persons who are in, or who may come into, the same situation and circumstances. Vanzant v. Waddel, 2 Yerg. 260; Wally's Heirs v. Kennedy, Id. 555; Bank v. Cooper, Id....