Murphy v. State

114 Tenn. 531

• Court: Tennessee Supreme Court
• Decided: December 15, 1904
• Status: Published

Opinion

Me. Justice Shields

delivered the opinion of the Court.

The'plaintiff in error, Murphy, was-indicted and convicted in the circuit court of Robertson county for permitting his hogs to run at large in that county, and adjudged to pay a fine of $25, from which judgment he has brought the case to this court by appeal in the nature of a writ of error.

The indictment is preferred under chapter 499, p. 1342, of the Acts of the general assembly of 1903, entitled “An act to prohibit the running at large of hogs, sheep and goats in counties having a population of not less than 25,000, and not more than 25,100, according to the federal census of 1900, or any subsequent federal census.”

Section 1 of this act provides that it shall be unlawfull for the owner or any one having control of hogs, sheep and goats to allow them to run at large in counties of this State having a population of not less than 25,000 nor more than 25,100 according to the federal census of 1900 or any subsequent federal census.

Section 2 provides for a lien upon stock allowed to run at large in violation of this act, and its enforcement for damages done by such stock; and section 3 allows any one upon whom such stock may trespass to confine it and recover of the owner reasonable compensation for its keep, for which a lien is also given.

Section 4 provides that the act shall not operate as a repeal of the railroad stock and fence law, and by section 5 it is made effective from and after its passage.

The first error assigned is that this act violates article 11, section 8, of the constitution of- Tennessee, and is therefore invalid. The statute is not subject to this objection. It is now well settled that statutes of this character are not arbitrary and vicious class legislation within the prohibition of this provision of the constitution, but are constitutional and valid. Peterson v. State, 104 Tenn., 128, 56 S. W., 834; Turner v. State, 111 Tenn., 593, 69 S. W., 774; Cook v. State, 90 Tenn., 407, 16 S. W., 471, 13 L. R. A., 183; Condon v. Maloney, 108 Tenn., 82, 65 S. W., 871; Archibald v. Clark, 112 Tenn., 532, 82 S. W., 310.

The other error assigned is that the statute does not make the violation of it a misdemeanor, but provides a civil remedy against all violators, and therefore no criminal action can be predicated upon it. This point is .well taken, and must be sustained, upon the authority of the cases of State v. Maze, 6 Humph., 17; State v. Lorry, 7 Baxt., 95, 32 Am. Rep., 555; and State v. Mans, 6 Cold., 557.

The judgment of the circuit court is therefore reversed, and the case dismissed.