*1 Rеports. Tenn. TENNESSEE m [156 H. et al., J. v. W. A. Darnell, Shapard, Trustee, Harvey et al. v. Graves,
John Trustee.* Thorn, December (Nashville. Term, 1927.) Opinion 17, filed March 1. POLICE POWER. DOG-S. regulation police keeping
The a matter within power State, right and does not differ from the regulate liquor. handling intoxicating (Post, p. State to 552.) 564;
Citing: (17 Thomp.), Anderson, 144 Ponder v. State v. Tenn. State, (14 481; Erwin, Thomp.), The 139 Tenn. 141 Tenn. State v. 341; 96; (12 Rauscher, (1 Lea.), Thomp.), 69 State v. Tenn. State, (19 Pick.), 685; Frost, 110 Webster v. v. Tenn. (N. Note, 491; Note, S.), 363; (2 Cates), Ann. 8 L. R. A. Tenn. 258; Sec. article State Constitution. Cas. BURDEN OF ATTACK.
2. POLICE POWER. LEGISLATION. carry police act must made in One who assails classification basis, any showing reasonable rest that it does not burden of 553.) essentially arbitrary. (Post, p. such classification but that Memphis 47; City (9 Thomp.), Citing: State, Tenn. Thomas .136 v. State, 83; (6 Thomp.), rel., Motlow v. State, ex 133 Tenn. v. (17 Cates), 547. Tenn. CLASSIFICATION. LEGISLATION. POWER. POLICE classification, justify the can conceived possible reason If power will be involving police in an act
made 553.) (Post, p. upheld deemed reasonable. 466; (25 Thomp.), Hunter O’Brien,
Citing: 152 Tenn. Peters v. Lea, 258; (25 Thomp.), & Co. v. Caldwell Conner, 152 Tenn. Senter, Trust & Co. (25 Thomp.), Bank Commerce Tenn. y. 3 Smith] DahNELl Shafakd. (22 Thomp.), 569; Ogilvie Hailey, (14 Tenn. 141 Tenn.
Thomp.), 392. 4. POLICE POWER. LEGISLATION. CLASSIFICATION. LEGIS-
LATIVE INTENT. *2 Legislature The decision of the as what is a sufficient reason justify involving police a classification contained in an act power palpably will not be reviewed ar- the courts unless it is bitrary, though even such reason is not disclosed the face of the (Post, 553.) p¿ Act.
Citing: Pick.), Brewing Co., (20 State ex Schlitz 104 Tenn. rel^v. 715; 82; Condon, (24 Pick.), State ex rel. 108 Tenn. v. v. State State,
McKay, (10 280; Thomp.), 137 Tenn. The Sullivan v. (9 Thomp.),
Tenn. 194. 5. POLICE REGULATION. CLASSIFICATION. LEGISLATIVE
DISCRETION. that, Legislature deems as to one The will interfere if the courts not grazing discourage county State, policy the better is encourage thereof, development encourage agricultural toor 554.) (Post, county. p. raising shеep in such (9 Thomp.), State, 194. Citing: Tenn. Sullivan v. The regulation: classification. 6. POLICE class things a excluded from persons or that
The circumstance bare things therein included persons or possess characteristics some cer- (that mere fact legislation, is not invalidate does profitably might sheep in which State tain counties law), in- does not a protection of raised, without are left 555.) (Post, p. legislation. validate the 83; Thomp.), (6 Condon rel., Tenn.
Citing: Memphis ex v. State (24 Pick.), 82. Maloney, Tenn. v. LAWS. STOCK OF SHEEP. PROTECTION ACT. LEGISLATIVE
7. protection of toward tends Legislature which Act of An applying when law, laws and such a stock a measure is in 556.) (Post, p. valid. held county been have to one Tenn. [156 TENNESSEE REPORTS. Citing: Murphy State, State, (6 Cates), 531; Hall v. The 114 Tenn. v. (9 (16 Cates), 235; State,
124 Tenn. Thomas The 136 Tenn. 194; Thomp.), State, (9 Thomp.), Sullivan 136 Tenn. (14 Thomp.), Ponder The Tenn. 481.
8. LEGISLATIVE ACTS. SPECIAL FEDERAL LAWS. CLASSI-
FICATION. Special In a Act of where the сlass identification limits, regard population such such narrow is difficult to theory general Act as law the other counties of the Stat$ named, being thing class within within the come 557.) (Post, expectations. p. probabilities human or reasonable Citing: Trotter, (26 Thomp.), ex rel. v. 153 Tenn. LEGISLATIVE ACTS. SPECIAL ACTS. CLASSIFICATION.
REASON. city county population the State A difference in of one legislative only justification distinc- that of others not the *3 good as well as another. One reason will serve tion between them. Post, 557.) p. 194; (9 Thomp.),
Citing: State, Condon v. 136 Tenn. Sullivan The Pick.), 82; (24 of Maloney, v. Board Edmondson 108 Tenn. v. (24 Pick.), Education, 557. 108 Tenn. JUSTIFICATION. LAW.
10. LEGISLATIVE ACTS. STOCK justification and neces- on local conditions of laws rests The stock legislative very sities, set aside will slow Court be con- can that no reason to declare classification of counties ^nd embracing particular from omitting counties ceivеd for act, (Post, p. 559. operation of such DOGS. POLICE POWER. 11. police regulation dogs keeping a matter within
The right State, of the State not differ from power and does 559.) (Post, liquor. p. intoxicating handling regulate the 564; Thomp.), Anderson, (17 Ponder Citing: Tenn. v. State 481; Erwin, 139 (14 Thomp.), State v. State, 141 Tenn. The v. DARNELL, Shapakd. v. Smith.] (12 341; Thomp.), Tenn. Lea.), Rauscher, (1 State v. 69 Tenn. 96; Frost, 686; (19 State Pick.), 103 Tenn. Webster (2 Cates), 491; Note, (N. 363; Tenn. S.), L. R. A. Note, 258; 8, 11, ‘Ann. Cas. See. article State Constitution.
12. SPECIAL LEGISLATION. STOCK LAW. CONSTITUTIONAL
LAW. Legislature An regulating ownership pro- viding for its enforcement the State Fish & Game Warden Constitution, does not though applies only violate the even (Post, p. 560.) certain counties named therein.
Citing: 1927, chapter 202; 8, 1, 8, Private Acts ar- see. article sec. 11,
ticle Tennessee Constitution. 13. DOGS. POLICE REGULATION. PENALTY. CONSTITU-
TIONAL LAW. provides summary An ofAct for the destruc- dogs kept law, stringent tion of violation no matter how character, summary entirely proceedings, nor how within legislative power, though objection, and free from constitutional hearing property destroyed of the owner is without notice or 562.) (Post, p. in the execution of the law. 154;
Citing: J., L., 1128; Cooley’s 3 C. 1 R. C. Limi- Constitutional tation, Ed., 3, page 8th Note 1322. Constitution, article
State sec. 8.
14. DOG LAW. POLICE MEASURE. REVENUE MEASURE. passed
A law as a measure has been held unconstitu- revenue (Post, 564.) p.
tional. Lewis, Constitution, Citing: Phillips sec. article Cas., Erwin, (12 Thomp.), 230; State v. 139 Tenn. Shan. THE PEACE. APPEAL. LAW. DAMAGES. JUSTICE OF DOG *4 PAUPER’S
BOND. OATH. Dog provides provisions Law that a Justice Under the the which owner, requiring the Peace warrant the or “shall issue a known, appear dog charge, person having in his if to before such therein, place at Peace a time and named such Justice of the at heard, appear if it shall that such time evidence shall be which Tenn. [156 TENNESSEE REPORTS. dog immediately is a . or- dog, killer . the . shall he Any aggrieved dered persоn killed. . . . at order such claiming dog appeal be the to owner of such to the days by equal giving Circuit Court within two to the whole bond by value of the An determined the Justice of Peace.” the appeal may taking prescribed be taken such owner the oath by persons. 564.) poor (Post, p. our statute for Citing: 1927, 702, 6; Thompson-Shannon’s chapter Private Acts sec. 4928;
Code, Cates), Brandon, (17 secs. Scott v. Tenn. 314.
16.DOG LAW. DAMAGES. CONSTITUTIONAL APPRAISAL.
LAW. provision Dog appoint requiring A Law Trustee of,the to stock, damage appraise two disinterested citizens to damage payment proposed out of it is to make claim for accruing Con- contravene the fund under statute does not 565.) (Post, p. stitution. 2; Brown,
Citing: 1927, chapter Staples Tenn. Private Acts (5 639; Martin, (3 Smith), Cates), City of Nashville v. Tenn. LAW. 17. DOG LAW. LEGISLATIVE ACTS. CONSTITUTIONAL provid- regulating ownership dogs, An Act of dogs, compensation ing for the destruction vicious scope beyond dogs, stоck not owner of killed (Post, contrary provisions of our Constitution. title thereto 565.) p. Constitution, 1927, chapter sec.
Citing: Tennessee Private Acts article PARTIES. RIGHTS OF PRIVATE ACTS. constitutionality special suit, involving of a statute Parties to counties, one of said counties reside either applying who to four rights of standing court consider the to ask the can have no statute, county residing adjoining not affected in an those 565.) (Post, p. adversely being they affected.
3 Smith] y. Shapakd. 549 Daruell 19. GENERAL DOG SPECIAL LAW. DOG LAW. CONSTRUC-
TION OF COURT. applying haying law A to the whole held been valid (State reopened involving this court the matter will not be in a case special subject. act (Post, p.-566.) on the same Citing: Anderson, (17 Thomp.), 144 Tenn. 564. Animals, J., 24; Statutes, Cyc., 1006;
*Headnotes 3 C. p. section 2. 36 1. Law, J., 221; 3. 12 Statutes, Cyc., 993; Constitutional p. C. section 4. 36 Law, J., 222; -; Animals, 5. Constitutional 12 C. section 6. 7. J., 580; Law, C. section J., 1099; 8. Constituaional C. 9. sectiоn Animals, J., 495; Time, Cyc., 328; 3 C. Appeal section 10.
Error, J., 1165; Animals, J., 3 C. 538; section 3 C. section 13. Stat- utes, Cyc., p. 1044."
FROM BEDFORD AND WILSON. Darnell-Shapard appealed Chancery case from Court County. Bedford Thos. B. Lytle, Chancellor. —Hon. appealed Chancery
Graves v. Thorn case from Conrt Wilson W. Chancellor. J. Stout, Connty. —PIoN. W. H. E. C. for Darnell, et als. CRowell Parke», Roberts, & MjcOarley and W. F. Barky, Roberts, Jr., Attorney-General, Shapard, Assistant for et al. Trustee, S. for W. Graves. Faulker,
T. G. HeNSON Thorn, Trus- & Roberts, Roberts tee. opinion Justice Green delivered the
Mr. Chief Court.
Judge dissenting opinion published. W. L. Cook, here — enjoin brought These suits were enforcement of Chapter theory of the Private on the Acts [156 Term. TENNESSEE REPORTS. enactment this was unconstitutional and void. Both upheld validity Chancellors com- and the plainants appealed in each case to this Court. The cases separately were submitted to this Court hut as chief questions they may raised are common to he dis- both, *6 posed opinion. inof one
Chapter 702 of the Private Acts of is an Act to regulate dogs keeping Bedford, in the Counties of Maury, Montgomery being and the counties des- Wilson, ignated by name the Act. provided every person owning keeping
It is or dog pay every person male shall a license fee of $1 owning dog pay a female shall a license fee of on or $3 County year, before June of each first Trustee. person owning pay That a kennel shall a license fee upon dogs $¡10 twelve or or a fee of less, license $15 dogs, dogs more than twelve he at all times by accompanied agent, confined his unless the owner or returning or unless on It made chase or from chase. is duty County Trustee to name of record person pаying each a license the date and fee, with payment amount of such -is a ken- whether the same dog together nel fee license license with the de- fee, scription dog sex on which the license fee of.each paid, dog. tag is and the license number issued for such required dog owner a The trustee is to issue to the year tag, bearing metal license numbered paid. tag which the This is to be attached license fee is by dog worn all to a collar which shall be at owner by except dog collar be removed times that the returning hunting from from on chase or while imposed upon Supervision the De- chase. partment Agriculture, Pish. Division of Game and 3 Smith.] y. Shapakd. DaUNELL make, required monthly Trustee is re-
ports Department showing to this and Division a list of persons paid names of all who have the license fee and by the amounts collected and the -Trustee un- disbursed provisions der the of the Act. The Trustee to remit to Department twenty-five per the said and Division cent of gross by amount collected him, which sum shall be Department defray said used Division to ex- penses incident to enforcement of the Act. The Trustee per retain is allowed to fifteen cent the amount thus by way compensation collected of his and the balance of the fund collected from this source is to be held “Dog Trustee in .a known fund License Fund.” any person keep It is made a misdemeaiior for to own, dog upon or harbor a which the license fee has been paid permit large wearing or to run at without tag, except provided by *7 as otherwise It the-Act. is duty made the of State Came Fish and Warden and deputies his tо look after the enforcement of the Act prosecution persons to cause the arrest and and vio- lating provisions of the Act, and conviction any person such under the said one-half the fine Act, imposed paid is to be to such and collected Came Fish Warden. procedure
Section 6 of the Act outlines with reference dogs dogs committing to the destruction of unlicensed depredations. special pro- As a attack is-made on the it will in hereafter. visions of Section be set out full compensation Provision is made for the of the owner by any injured dog fowl or animal killed or stock, by “Dog License, out of the Fund” Section 7. Under County upon complaint made to Section Trustee injured by by him or animal stock, the owner fowl [156 Tenn. Repouts. TeNNbssee dog, required designate is to two citizens to disinterested appraise damage report said and make a written there- receipt report of to the Trustee. On of said the Trustee required payment make “'D'og thereof out of the Li- cense Fund,” and in case the claims certified exceed the amount of the fund hand at shall time, claims paid in the order of their certification. Provision is compensation made Section of the Act for the out of “Dog said License Fund” of those bitten a rabid expense necessary for the medical treatment.
By other Sections of the Act it is made a misdemeanor perform for the Trustee fail or refuse to required duties grand of him in this connection, .jury given inquisitorial power respect to violations Judges exercising ju- Act, of Court criminal required give charge risdiction grand to their ' juries рrovisions the' of the Act. applies only As heretofore stated, this Act in terms Maury, Montgomery the Counties of Bedford, and Wil- accordingly son, and is insisted the Act undertakes unjustified arbitrary classification of these four consequently Counties of the State and violates Section 8 of Article I, and Section 8 of Article 11 of the Consti- objection given tution. This to the Act has the Court the gravest concern. regulation keeping The is a mat Anderson, police power
ter within the of the State. State v. 4 Tenn., 564; Ponder v. 14 481; Erwin, 139 Tenn., *8 validity
The determination
Legis
of the
acts
attempting
lature
a classification of the counties of the
largely
legisla
State is
influenced
the character of the
Legislature
tion.
particular-
If an Act of the
affects
3
Smith]
Shapaed.
553
DaíiNell
agencies
governmental
political
good.
counties
it is
only
good
capacity.
It
it
is
if
affects
one
in this
argument
required
No
to sustain such an
If,
Act.
Legislature primarily
however,'
affects the
particular
county
citizens of
counties or of one
in their
individual
such
relations, then
classification must rest on
arbitrary,
if
basis,
reasonable
classification is
County,
the Act is had. State ex rel. v. Knox
154 Tenn.,
Wilson,
583;
rel.
(3)
any possible
justify
reason
If
can be
conceived
upheld
be
and deemed reason
classification, will
Conner,
able. Peters v.
“And it does the reason for the follow, because face Act, classification is not disclosed necessarily capricious. it is without reason Reasons 'eminently provident might control the law-mak wise ing body, appear upon face of a statute, do not readily because not it down, the Courts to strike *9 [156 Temí. TENNESSEE REPORTS. judicial might
perceptible, an act of be as well criticised Maloney usurpation.” Con State ex rel. v. Condon Tenn., don, McKay, Tenn., same effect see State
To the Tenn., State, Sullivan principles Bearing of all which out, in mind tlie set firmly unable to con- cases, in our we are are embedded segregation that the of the four counties mentioned clude arbitrary legislation palpably and without this justification. possible prevalence
It known of is well that the community particular raising sheep of menace may great enterprise -It hazard. be and involves that sheep supposed that in counties in- the four named especially dustry proportions, great an has attained large money been the citizens investment has made of prosperity animals, that the of of these counties in such dependent upon sheep peculiarly such counties is distinctively adapt- counties that such business, and Legislature sheep. this For reasons of kind ed reasonably might to confer it wise have concluded protection us, of Act before four counties the might reasonably Legislature have time the at the same operation in other counties of the Act concluded raising adapted sheep so well the State developed, industry be burden- was not would where that slight benefit. some and Legislature, supposed that the It further prosperity farming
in the interest of diversified counties, well individual as the State a whole as pro people thought not be would that the welfare raising encouraging in all the moted In Sullivan v. counties of State. DaRNell, y. Shapakd.
3 Smith] upheld 194, Act was hogs, sheep goats made unlawful for the owner permit large County. at animals to run in Rhea adjoin showing Proof was introduced that the counties ing large Rhea contained boundaries uncul *10 grazing, tivated, for land suitable and it unfenced was urged validly that one of those counties could not be set apart subjected from thе others its citizens alone the burdens and benefits of such Statute. The Act was upheld, and one that however, reason for result was Legisla idea that the Court not interfere “if the would ture deems that as to such one of counties the better policy encourage discourage agri grazing is to and to ’’ development cultural thereof. may again supposed
It be that other counties already protected raising, State, are devoted special applicable laws to such counties alone. This is indeed true as to several other counties. obyious multiplying
So illustrations, without attempted possible justifying reasons classification readily in the Act under consideration conceivable capricious. hopelessly and that classification is not if fact, fact, The mere it be а that other counties sheep might profitably raised, State in which protection no reason are left of a law is without Maury, striking protecting Bedford, the law down Any Montgomery classification Wilson Counties. legislation inequalities practical the rea in involves depend scien sonableness of a classification does things persons inor their or in or tific differences marked things persons or relations. The bare circumstance possess some characteristics from a excluded class persons things not invalidate the does included therein [156 Temí. TENNESSEE EeFOETS. Memphis
legislation. City rel., v. ex Maloney, 83; Condon 108 Tenn., (7) Chapter 702 o£ the Private Acts of especially pro measure a stock law. It tends toward sheep. nothing special tection of There is new about stock laws Tennessee. Murphy
In State, Tenn., 531, Act prohibited was under consideration which goats large hogs, sheep running at in counties popu- of not less than not more than 25,000' 25',100' according lation of 1900 or the Federal Census subsequent applicable Federal Census. This was Bobertson alone sustained valid and was by this Court.
In
a similar stock law with
Hall
In law Tenn., a stock Sullivan v. The State, than 15,000 not nor more 14,200 to counties of less than ap- any population subsequent by Census, current or plicable upheld. County alone, to Bhea was in law,
In Ponder many respects of not us, for counties like the one before by population 29,975 than nor more than 29,946 less ap- any subsequent Census, Federal or Census of 1910 good. plicable County was alone, to Obion held Smith] Shapaed. DabNell (8) just The difference the Acts between referred and the one under liere attack is that the counties cov designated by ered those were Acts reference to the desig in Census, Federal this Act the counties are by population name. nated Where the class identified is in such narrow limits, where the difference between the population population speci maximum minimum fied 29is or even in 800, as one the cases, it is difficult regard general theory one оf these Acts as a on the law may that other counties the State come into the thing proba class named. Such a is not within human expectations. or reasonable bilities ex rel. Trot State regard say, ter, 153 Tenn., 30. Nor is less difficult to special ing these Acts, as that there is such sub population stantial in the difference included coun ty many of the counties as would excluded furnish diversity a rational basis for of laws.
(9) population county A difference of one city jus only that of others is legislative tification for a between distinction them. One good reason will serve well as another. supra,
Thus Sullivan v. The State, as iieietofore ground shown, Court the classification sustained population other than the basis. supra, upholding special Maloney,
In Condon v. County, exculpated ap- road law for Knox the Court parent preference populous of Knox over other might counties because it then have said “as been to Davidson that the have found as *12 by turnpikes reason for its exclusion that it was covered by private companies, built and and controlled chartered Shelby, public already per- in the matter of that the has [156 Tenn. TENNESSEE BePORTS. entirely good system under a roads, network of fected a ’’ satisfactory. Education, Tenn.,
So in Edmondson Board Chapter the 59 of Acts of the Court considered years chil- providing thereafter, that term of five for a age residing a half school within of common dren by Memphis, city the as extended mile of the limits right previous Act have the session, of the same should public the inside the schools tuition, free of attend, urged city places of residence. It was nearest to their not common burden, that was unreasonable this upon Memphis placed city the the cities, other city in violation of ‘Education of of Section Board It said: was, however, of Article of the Constitution. in no can be charac think, sense statute, “But we Evidently Leg capricious or unreasonable. terized as city’s great realizing limits, extension islature, passed days provided before, a few the Act outlying' likely into school confusion would throw pa loss, if inconvenience, work districts, and patrons public left where these were schools, trons of the they schoolhouses, limits, outside new they to which erect maintain, had contributed might sending insido fall children, had their been sought city the loss this to reduce Act, limits opinion, period. our limited In inconvenience for a ’ ’ altogether proper havе been done. this should it is Education, Edmondson v. Board of might cases but taken from our instances Other quoted, repeat perhaps heretofore rule, sufficient to legislative charac- in statutes this that a classification if reason can be ter found be confirmed will place which to it.
3 Smith] Shapakd. DarNell
(10) justification It seems to us that of stock laws they on local rests conditions and necessities; essentially special proper application; in their not nat urally large, suitable to the at State to urban rural territory County to this and that alike, indiffer ently. Eespecting very such laws the be Court will slow legislative to set aside a classification of counties and omitting that no can reason declare conceived embracing particular operation counties from the of such enactments. is shown our cases, Anderson, As State
supra, supra, supra, Ponder v. The State, Erwin, State v. dogs entirely property po the control of within the tendency power owing lice to the such ani State of savage public mals to revert to their state become a right susceptibility menace and their The rabies. regulate keeping not does differ right regulate handling intoxicating
from its liquors. Eighteenth adoption
Prior to Amendment to prohibition, National local Federal Constitution and liquor every laws were where in all sustained and legally there States of the Union where was sold, liquor dry territory. territory was These discrimina- wet quite tions were between localities the same State within against usually constitu- sustained attacks based provisions 1, tional similar to 8 of Article. Section Article 11 the Tennessee Constitution. Section 8 of The this: state of the law was very holding generally unite
“The decisions ap liquor traffic, law for the control locality, plies persons equally in a constitu to all locality what ever tional make that and the State [156 Tenn. TENNESSEE REPORTS. character it it does not matter it is a wishes; whether regular political municipal division of the State or a arbitrarily corporation district law.” or a fixed (F. many S.) 8 L. A. col Note, R. where cases are Note lected. Anno. Cas. See, also, reported gone quite of this Court decisions had *14 upholding in far as those of some states so discrimina- tendency liquor in laws, localities tions between but the aligned way this have and Court would doubtless was had occasion v. itself with the others arisen. State (1 Lea), Tenn., Rauscher, 96; Frost, Tenn. Webster The Chapter opinion, therefore, are of We pro not contravenе the the Private Acts of 1927 does of Arti and Section visions Section 8 of Article makes Constitution. cle 11 the Tennessee Statute it to which a reasonable classification of counties subject applies, with is con nature of the dealt when the liquor fully supported by the conclusion is sidered. This has been cases to which reference cases stock law and made. objections Section made to constitutional
Several This fol- noted. Section Act, 6 of the as heretofore lows:
‘‘ be the it shall enacted, That Section 6. Be further deputy duty all Pish Warden, G-ameand of the State game Pish all esc Game wardens, fish oficio any may person privilege find who Wardens, or year large any dog roaming of the at time at or a know immediately provided, tag a as herein without license such notify if him, knоwn thereof, if the owner contrary pro- large again dog roaming at found find- first occasion of or if Act, visions of this Smith] Shapakd. DakNell dog large, ing such at the owner be not known so to the any dog, wearing tag whether warden, or if a or not, he injuring sheep, killing, killing chasing or or found or any injuring duty domestic animal or it shall be fowl, dog any such in the "Warden to kill forthwith manner any may person dog he see who shall fit, find a sheep, worrying killing committing any or or of the de- predations right in this shall have the Section, mentioned sight. any dog per- to kill such a If or Warden other dog killing sheep committing any shall not son find or depredations of the Section, mentioned but this have worrying dog killing reason to believe that such or committing depredations of the mentioned apply in this he shall to a Section, Justice of Peace County, City dog or Town such wherein be, requiring shall who issue warrant the owner, or the person having charge, ap- known, his if pear place before such *15 Justice Peace at time and at time evidence shall be therein, heard, named appear dog if it shall that a and such is killer, or depredations any the has committed of mentioned this dog immediately Section, be shall ordered be killed, by designated which the or the officer Warden, Jus- Any aggrieved person tice of the at such Peace do. shall dogs claiming dog order and to be the owner of the or appeal days may to the Court two whole Circuit within by giving equal dog or as bond the value by Peace, in the determined the Justice of the Cir- and cuit Court the trial be the Circuit shall novo and Court de power shall have the to enter order the same killing directing of Justice immediate Peace, dog. large any running dog li- on which If at ownership, paid, cense has not no known been and has [156 Term. TENNESSEE REPORTS. duty dog- to kill the Game Warden such shall be the it -perform any Any failing refusing sight. or Warden by duty performed to be him shall be herein directed upon guilty conviction misdemeanor, of a deemed less than five dollars nor he shall be not thereof, fined twenty each offense or dereliction than more dollars duty. any Deputy Game or Game “The State Warden any Fish Fish or ex Game and Warden Warden officio fifty to be cents, a dollars and shall receive fee of two paid dog license out of from the sale of derived fund provisions tags dog under the for each them killed by each for such shall be rendered this Act. Bills fees receive them to the Game Warden entitled pay have when such bill shall who shall samе Trustee, presenting the been the oath of the officer verified ’’ same the account is correct. property dog and that the It is a said duty
provision declaring it the State Game privilege deputies Fish his Warden and wearing dog large li person roaming a a at to kill previous tag, roam to the owner of a cense after notice ing large by kill or to animal, at said large roaming finding- at without occasion of the first taking being tag, authorizes known, owner not property the land the law of in violation of destruction of process, contrary Article 8 of to Section without due the Fourteenth and to 1 of the Tennessee Constitution It States. of the United Amendment to the Constitution prop deprived urged of his thus be that no man *16 erty hearing. without notice and rejected by considered and
This has been cоntention dog such every test law to called American Court Smith.] Shapakd. DauNell exceptions. one one or two Section ns, as the before with provisions to be 6 of the Act before ns is not so drastic as npheld. in that have been There fonnd some laws very question. The is decision to this little conflict of result of the cases thus stated: is summary provision
“Where is made for the destruc- great dogs kept with tion of in violation of is law, it held unanimity by regulations, no matter the courts that such summary pro- stringent in character, how nor how legislative power, ceedings, entirely and free within objection, property though of from constitutional owner, destroyed hearing in the without notice or execution of law. Thus the courts have declared dogs providing that all statutes ordinances valid any dog registered, shall and thаt found etc., be licensed, large requirement be killed at in violation such by any police person, an offi- where or other officer, empowered dog, kill an unlicensed ‘whenever cer is trespass guilty if he wherever he is not found,’ purpose.” peaceably that owner’s house for enters the 1128, 1 R. L., C. Corpus way Juris, 154, in 3
The law is stated the same Cooley’s Note Ed., Limitations, in Constitutional Page dan- reasoning are so that cases is property sub- gerous held their tendencies regulation; ject police interest strictest property safety own such public is not entitled one Legislature; prescribed except on conditions rights it is prevention injury others, to the for the summary competent to authorize for the required property if not held as of such destruction law. *17 [156 Temí. .TENNESSEE REPORTS. expressions opinion in Therе some of
Judge Phillips Freeman in Lewis, Shan. Cas., 230, contrary foregoing, purely, to the but these are. dicta long subject uttered the law since, before on this had fully developed. dog so law under consideration in Phillips supra, v. Lewis, was as a revenue treated meas ure and for that held reason unconstitutional inas viola tion Section 28 of Article 2 of the Constitution. This pointed is out in State v. Erwin, Tenn.,
(15) By may way of construction it be that the said .provision authorizing dog in ag Section 6 the owner aof grieved at the decision of the Peace, a Justice before proceedings against brought, whom have been appeal days to the Circuit within two Court whole ob viously days judgment means two whole after has just appeal been an rendered, taken in other cases magistrate. tried before a provision аppeal may
Likewise the that this be taken by giving equal dog, bond the value of the etc., provision Thomp- construed like of Section '5153', authorizing appeal son-Shannon’s Code, an from a Magistrate’s judgment replevin party in a suit either giving property bond in double the value of the re- plevied. This Code has been Section construed Thompson-Shannon’s in connection with Section 4928, pauperis authorizing in suits all ex- cases Code forma cept imprisonment, prosecu- actions for false malicious brought by tion, slanderous words, divorce suit males. appeal replevin might It held was defendant Magistrate’s judgment upon pauper’s oath, from provisions Thompson-Shan- notwithstanding the appeal being in Section Code, .non’s the nature except of an action all those actions excluded Smith.] Shapard. DARNELL being permitted pauper’s oath. .4928, Section on the Scott think that the Brandon, So we provision along before ns should he read with Thompson-Shannon’s Code, Section the own- dog, pro- er aof the destruction of which is ordered in ceedings before Justice have Peace, his appeal upon taking prescribed poor persons. the oath *18 for
(16) improprity pro We see no in constitutional requiring vision of Section 8 of appoint appraise Trustee to two disinterested citizens damage injured dog, by to stock, fowls or animals for damage proposed payment it is claim to make accruing out of the funds under the have Statute. We many entrusting judicial laws limited functions to other inferior Boards, Commissions and tribunals. The justiciable questions decisions of such tribunals on always by reviewable in the certiorari Circuit Court. Staples City Brown, Nashville February Martin, decided 18,
(ll) provision any We do not in the Act which find regard beyond scope we as of the title thereto con trary provisions of Section of Article Constitution. argument Much was in to the effect of as said adjoining
this in Statute counties owned coming borders, four counties with across the dealt dogs living rights and as to the of the owners of adjoining in of the cases before us counties. One County. brought entirely by other citizens Wilson County. by brought All of case is of Bedford citizens complainants, to which reside counties these therefore, they standing ask the have no the Act relates and adjoin rights residing in Court those to consider the Repoets. [156 Teim. TbNNEssee ing suggested counties. If the difficulties have sub things stance, such cannot be in these considered cases complainants adversely for these are not affected.
(19) Other criticisms of the Act are made identical Chapter with the criticisms made of Acts general dog covering law the whole State later repealed validity of which was in State v. declared Although Anderson, Tenn., 564. this decision was majority present made Court, divided regard Court the conclusions of State v. as Anderson, questions sound. The there must, therefore, raised he they reopened. treated settled and will not he The decree of the Chancellor in each of these cases will he each hill will affirmed and be dismissed with costs.
Dissenting Opinion Mr. Justice Cook. caption, object Chapter As stated its protection peo- Private Acts of 1927, is to to the afford ple property. accomplish their To laudable *19 purpose Legislature ignored express the constitutional by creating compensate restraints a fund from which to sheep by dogs, owners of killed for the benefit of and persons by dogs bitten within rabid the exclusive section Maury, Montgom- covered the of Bedford, Counties ery and Wilson.
Legislation persons growers that dissevers and who suffer from the bite of rabid as is done portion positive this Act, a the ex- and favors them to rights contrary equal provi- clusion of is others sions of the Constitution. opinion pri- sustaining the Act rests Court
marily upon Legislature concept selects that when the partial a a law, Section of the makes for it State and 567’ Shapakd. Smith.] DARNELL v. legislative suppose arbitrary a Court must reason for the choice of the favored section. power Legislature inhering in
The broad to clas sify subjects legislation application for the of revenue police regulations unquestioned; laws is is elementary cannot that the Courts declare Statutes un legislation constitutional as class because reason for merely one, classification is a nor because bad appear reason does not on the face the Act. these But ignore palpably ar rules do not authorize the Courts bitrary challenged classifications, and to ascribe to Act legislative a basis for classification and a for mak reason Leg ing it which itself not exist. The shows did arbitrarily thereby islature cannot create class and eyes close the of the Court to the fact that the classifi arbitrary. par. page L., cation R. C. apparent inspection
It is from that it the Act em portion only braces who of those exist in the State anu by precisely are surrounded similar circumstances. The Legislature supposed the Courts know what ordinary observation discloses to men. knowl Common edge open Legislature, to the Court as well as the agricultural pursuits, knowledge it is common topography, many soil, climate, and. counties of State are similar to the four law is counties to this being confined. This without true, was legislate power their to select the four counties people in the State. to the exclusion of others Morris, 89 Tenn. Tenn., 10; Stratton v. Railroad, Turnpike Co., State v. *20 objects Constitution,
Under Article
8 of the
11, Section
may
legislation,
purpose
but
be classified for the
upon
natural
substantial
classification must rest
some
568
Reports.
[156 Tenn.
Te'NNessee
belong
difference and
all
must include
who
to the class.
Maloney,
Ledgerwood
Condon v.
The relation between easily industry open supposed. requires fields for pasture, industry protect and Acts to counties by population classified valid Ponder v. . popu Resorting
Tenn., 481. to classification based Chapter 10 for enacted lation, of 1927 Chapter County, Chapter County, Sumner for Lincoln Chapter Iiaywood County, 607 for Giles *21 . Dabnell y. Shapakd. Smith] County, industry protect in tliose counties. the, And at same session without resort to mode se Montgomery, Maury, Wilson, and Bedford lected Coun application partial Chapter for the ties law under subject 702. All these Acts deal with the same and those applicable to Sumner and Giles Counties, passed Montgomery, Maury for Wilson, and Bedford are in substance same. supra,
Under the in Hall v. declared The rule Chapter might pass, the four counties mentioned population, shift of into the classification Sumner subjects Giles, their residence would be the two classifications and the beneficiaries two laws de signed accomplish purpose.' the same legal proposition
This last statement aas be un- Legislature but it sound, shows that the not did intend to by Chapter include within the area 702 all favored who were to the benefits Act. It is affirma- entitled Legislature pre- tive evidence of the fact that the did classify, arbitrarily. tend but that it selectеd The consistently special Courts have held unconstitutional legislation possibility which excludes the sim- others, ilarly coming situated, from ever within the favored County, class. Pettit 152 Tenn., White Woodard Brien, Tenn., 520; Sutton v. State, 96 population sup- While the standard of classification to port special legislation unsound, artificial and it has long the sanction of the Court ain line of decisions, pretense recognizing makes toward constitutional legislative power, limitations and is not so ob- jectionable special requires as a law that a conclusion, legislative order to sustain it, that a reason existed arbitrary for the choice of the favored section. [156 Teim. Keports. Tennessee disinclination main reason for this dissent a rea- presumption had
concur in the appli- particular territory selecting 'for son partial cation aof law.