Darnell v. Shapard , 156 Tenn. 544 ( 1928 )

As stated in its caption, the object of Chapter 702, Private Acts of 1927, is to afford protection to the people and their property. To accomplish that laudable purpose the Legislature ignored express constitutional restraints by creating a fund from which to compensate owners of sheep killed by dogs, and for the benefit of persons bitten by rabid dogs within the exclusive section covered by the Counties of Bedford, Maury, Montgomery and Wilson.

Legislation that dissevers sheep growers and persons who may suffer from the bite of rabid dogs as is done by this Act, and favors a portion of them to the positive exclusion of others is contrary to the equal rights provisions of the Constitution.

The opinion of the Court sustaining the Act rests primarily upon the concept that when the Legislature selects a Section of the State and makes for it a partial law, the Court must suppose a legislative reason for the arbitrary choice of the favored section.

The broad power inhering in the Legislature to classify subjects of legislation for the application of revenue laws and police regulations is unquestioned; and it is elementary that the Courts cannot declare Statutes unconstitutional as class legislation because the reason for the classification is a bad one, nor merely because the reason does not appear on the face of the Act. But these rules do not authorize the Courts to ignore palpably arbitrary classifications, and to ascribe to a challenged Act a basis for classification and a legislative reason for making it which the Act itself shows did not exist. The Legislature cannot arbitrarily create a class and thereby close the eyes of the Court to the fact that the classification is arbitrary. 6 R.C.L., par. 372, page 379.

It is apparent from an inspection of the Act that it embraces only a portion of those who exist in the State and are surrounded by precisely similar circumstances. The Legislature and the Courts are supposed to know what ordinary observation discloses to men. Common knowledge is open to the Court as well as the Legislature, and it is common knowledge that in agricultural pursuits, soil, topography, and climate, many counties of the State are similar to the four counties to which this law is confined. This being true, the Legislature was without power to select the four counties and legislate for their people to the exclusion of others in the State. State v. Railroad,124 Tenn. 10; Stratton v. Morris, 89 Tenn. 534; State v.Turnpike Co., 133 Tenn. 451.

Under Article 11, Section 8 of the Constitution, objects may be classified for the purpose of legislation, but the classification must rest upon some natural or substantial difference and must include all who belong to the class. Condon v. Maloney, 108 Tenn. 92; Ledgerwood v. Pitts, 122 Tenn. 605; State v. Cummings, 141 Tenn. 318.

This Act presents no pretense of classification. It confers benefits upon all whose sheep are killed or injured by dogs within these counties, and upon all who may suffer from the bite of rabid dogs. These benefits are denied citizens of all the other counties of the State, and as drafted the Act makes it impossible for the other counties to ever come within the favored class. Nothing on the face of the Act marks the objects of its bounty as the peculiar subjects of legislation.

Special laws in the Private Acts from 1915 to 1927 cover 18,500 pages. Among these special laws are Acts that regulate the governmental affairs of counties and municipalities. Such Acts are held valid in Prescott v. Duncan, 126 Tenn. 140;Redistricting Cases, 111 Tenn. 234; Bise v. Knox County,154 Tenn. 483.

Another class of statutes are held valid because made applicable to particular counties by reference to the Federal Census. These Acts are sustained upon the theory that the classification is reasonable because all the counties of the State may, when the required conditions occur, obtain the benefit of the law. Cook v. State, 90 Tenn. 407; Sullivan v.State, 136 Tenn. 194.

The relation between population and sheep raising is easily supposed. The industry requires open fields for pasture, and Acts to protect the industry in counties classified by population are valid. Ponder v. State, 141 Tenn. 481. Resorting to classification based on population, the Legislature of 1927 enacted Chapter 10 for Summer County, Chapter 177 for Lincoln County, Chapter 607 for Haywood County, and Chapter 477 for Giles County, to protect the sheep industry in those counties. And at the same session without resort to any mode selected Montgomery, Wilson, Maury, and Bedford Counties for the application of the partial law under Chapter 702. All these Acts deal with the same subject and those applicable to Summer and Giles Counties, and the Act passed for Montgomery, Wilson, Maury and Bedford are in substance the same.

Under the rule declared in Hall v. The State, supra, the four counties mentioned in Chapter 702 might pass, by shift of population, into the classification of Summer or Giles, and their residence would be the subjects of two classifications and the beneficiaries of two laws designed to accomplish the same purpose.

This last statement as a legal proposition may be unsound, but it shows that the Legislature did not intend to include within the area favored by Chapter 702 all who were entitled to the benefits of that Act. It is affirmative evidence of the fact that the Legislature did not pretend to classify, but that it selected arbitrarily. The Courts have consistently held unconstitutional special legislation which excludes the possibility of others, similarly situated, from ever coming within the favored class.Pettit v. White County, 152 Tenn. 660; Woodard v. Brien,82 Tenn. 520; Sutton v. State, 96 Tenn. 696.

While the population standard of classification to support special legislation is artificial and unsound, it has the sanction of the Court in a long line of decisions, it makes a pretense toward recognizing the constitutional limitations upon legislative power, and is not so objectionable as a special law that requires a conclusion, in order to sustain it, that a legislative reason existed for the arbitrary choice of the favored section.

The main reason for this dissent is a disinclination to concur in the presumption that the Legislature had a reason for selecting the particular territory for the application of a partial law.