129 Ky. 274 | Ky. Ct. App. | 1908
Lead Opinion
Opinion of the Court by
Seversing..
This action was instituted by appellees, citizens of Carter county, Ky., and owners of dogs, to test the validity of an act of the General Assembly of the Commonwealth of Kentucky, approved March 1, 1906, entitled “An Act to promote the sheep industry and to-provide a tax on dogs.” Acts 1906, p. 25, c. 10. By
The first objection to the act is that its title is inimical to section 51 of the Constitution, which provides that “no law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title; ” it being said that the title of this act relates to two separate subjects of legislation, and is therefore invalid. If the act under consideration does relate to two subjects, it goes without saying that
The first question to be determined is whether or not the statute before us is a revenue statute, or whether it was enacted for the purpose of police regulation. That it was not intended as a revenue statute is obvious from the most superficial reading. The title declares the purpose of the enactment to be the promotion of the sheep industry by the levy of a tax on dogs, and the body of the act shows clearly that its. object is to remunerate-the owners of sheep for any losses they may suffer by the killing of their sheep by dogs. The license tax imposed, then, was intended by the Legislature to be a regulation of dogs, and in this way to promote the sheep industry. This confronts us with the. question as to whether or not it is within.
In the case of Bradford v. McKibben, 4 Bush, 545, an act was upheld which authorized the killing of any dog found on the premises of a neighbor without the presence of its owner or keeper. In its opinion the court said: “Whatever may be the temptations, therefore, to entice a dog from home without the presence of his owner or keeper-, even though it he for the propagation of his species, his innocence is no protection to him. If he is found roaming on a neighbor’s premises without the presence of his protector, his life is forfeited, if the owner of the premises on which he is found will exact the penalty, and chooses to execute the- sentence. ’ ’ In the case of Commonwealth v. Markham, 7 Bush, 486, an ordinance of the city of Frankfort provided “that all persons owning or controlling dogs within the city of Frankfort are hereby-required annually, on the 10th day of April ,to apply to the city clerk to register, and procure a brass collar, duly stamped, for each dog, and pay to the clerk at the time of registry a tax of two dollars for every dog so owned and registered; which tax the clerk shall pay into the city treasury. Any person failing to comply with the provisions of this ordinance shall, on conviction before the police judge, be fined the sum of
Prom the foregoing authorities and upon principle, we are of opinion that the regulation of dogs is within the police power of the State, and that it is competent for the Legislature to prohibit the keeping-of dogs entirely, or, if it is necessary for the public welfare, any other regulation may be adopted which to the Legislature may seem most expedient .for the promotion of that end. We are also of opinion that, the statute not being for revenue, but an exercise of the police power, its provisions are not regulated by any section of the Constitution relating to fiscal matters, and, although the sum required to be paid by the owner of each dog four months old is called a tax, and it is required to be assessed by the assessor, collected by the sheriff and paid over to the State Treasurer, this is only a mode of regulating the dogs within the State and protecting the sheep industry to the extent that the burden imposed will result in the destruction of worthless and dangerous dogs, and create a fund to pay losses for the destruction of sheep by dogs. We do not think it can be doubted that, if it is competent for the Legislature to prohibit the ownership of dogs or to prohibit them running at large, it is also competent for it to impose any other
Nor do we think the act is inimical to that portion of section 3 of the Bill of Rights which- provides: “ * '* * And no grant of exclusive, separate public emoluments or privileges'shall be made to any man or set of men, except in consideration of public services. * * * ” As we view it, the statute does not confer any special privilege on the owner of sheep. It merely protects these owners from the destruction of their property by dogs. It is the duty of the State to protect eyery citizen in his life, liberty, and property; and it certainly is within the competency of the Legislature to exercise the police power of the State to protect all property against the ravages of destructive animals. The question as to how this is to be done and what property is to be so protected is a matter of of legislative discretion. Undoubtedly the sheep industry is a most important one to the whole State. All of our citizens are interested in an industry which supplies the market with wholesome meat, provides means of obtaining warm and comfortable clothing, and at the same time furnishes labor to the otherwise unemployed. It is only necessary to allude to this phase of the question. The importance of the industry as a whole is most obvious. It is equally obvious that sheep are peculiarly liable to the ravages of dogs. They have neither the fleetness to escape nor the courage to defend themselves from attack, and their silent
Thus far we have rested the right of the Legislature to provide a fund for the payment of losses of sheep by the ravages of dogs alone upon the police power of the State, but in the case of Ky. Live Stock Breeders Asso. v. Hager, Aud., 120 Ky. 125, 85 S. W. 738, 27 Ky. L. R. 518, we upheld an act which appro
For these reasons the judgment is reversed, with directions to sustain the demurrer to the petition and for other procedure consistent herewith.
Dissenting Opinion
(dissenting). While admitting the scope of the police power in the State to regulate the ownership and control of property within its borders so as to minimize the injuries that may be inflicted on others because of the predatory nature of the property, still I am unable to go so far as the majority opinion does in this case. One man’s property may need regulation for the public safety, but that is far from meaning that it may be taken from him and given to somebody else. Admitting that the Legislature has the power to impose a tax upon dogs as a police' regulation, the tax cannot be imposed, in my judgment, for the benefit of a few persons, or for any special class of persons, for the State is as powerless to- take one citizen’s property and confer it upon another, under the guise of police regulation, as it is under the tax regulation. By whatever name you call the act, it is the same, if the inevitable result is the same. It could not be maintained that a tax could be levied upon sheep, and the sum realized given over-to those who raise horses alone, upon the idea that the horse-raising industry was of more benefit to the State than- sheep husbandry. Nor would the fact that the State could appropriate its general revenues to fairs at’which-horses alone were exhibited as a means of stimulating an enterprise that would be beneficial to the whole State affect the question- in my opinion. Dogs are personal property. Section 66, Ky. St. 1903: Commonwealth v. Hazelwood, 84 Ky. 681, 8 Ky. Law Rep. 586, 2 S. W. 489. The State may regu
Hence I feel constrained to dissent from the opinion delivered by the court in this case.