State v. Anderson

144 Tenn. 564

• Court: Tennessee Supreme Court
• Decided: September 15, 1921
• Status: Published

Opinions

Mr. Justice Hall

delivered the opinion of the Court.

This is an appeal by the State from a judgment of the circuit court of Loudon county quashing an indictment on motion of the defendant.

The indictment is predicated upon chapter 61 of the Public Acts of 1919, regulating the ownership and keeping of dogs, and was quashed by the trial judge upon the ground that said statute is unconstitutional and void. The indictment contains two counts.

The first count charges that the defendant, J. B. Anderson, who is the duly elected and qualified tax assessor for Loudon county, while making the assessment of property for taxation in said county for the year 1920, unlawfully and wilfully did fail, neglect, and refuse, when assessing the property of each property holder in said county, to make diligent, or any, inquiry as to the number of dogs owned, harbored, or kept by the person assessed by him, and failed to make demand for the payment of the license fee required by section 1 of said statute above referred to.

The second count charges that the defendant, acting in his official capacity, willfully failed, neglected, and refused to keep a record of the persons owning dogs in said county, and a record of the dogs paid for with a description thereof in a well-bound book, and did unlawfully and willfully fail, neglect, and refuse to keep a stub record, or a copy of the receipts given by him for money paid to him for dog licenses, as provided by section 2 of said statute.

The motion to quash challenged the constitutionality of said statute upon four grounds:

(1) Because it is in conflict with section 28 of article 2 of the State Constitution, which is the taxing clause of said Constitution.

(2) Because it is in conflict with the provisions of section 8 of article 1 of said Constitution, which provides 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, bnt by the judgment of his peers or the law of the land.

(3) Because it is in violation of section 18 of article 1 of said Constitution, prohibiting imprisonment for debt in civil cases.

(4) Because it is vicious class legislation, and is, therefore, violative of section 8 of article 11 of said Constitution, in that it levies a tax, not for the State or governmental purposes, “but for the purpose of redressing the injuries done, or damage done, to certain individuals through the wrongs or faults of others.”

The trial judge sustained the motion to quash, as before stated; his judgment reciting that the court was of the opinion that the statute is unconstitutional for the reasons set forth in the motion to quash, and particularly in the first and fourth grounds of the motion. A judgment was accordingly rendered, and defendant was ordered discharged.

The State assigns the action of the trial judge in quashing said indictment on the several grounds stated in the defendant’s motion for error, and insists that the judgment of the trial court should be reversed, and the case remanded to the end that the defendant may be required to answer the charge laid in the indictment upon its merits.

The title of the statute under consideration is as follows :

“A bill to be entitled an act to regulate the owning, keeping or harboring of dogs, so as to protect the safety of the people and of property; to provide a license fee to he paid for each dog owned, kept, or harbored in this State, and to provide for the disposition of such fees; to provide penalties for the failure of certain officials to enforce this act, and to provide penalties for a violation of the provisions of this act.”

Section 1 of the act fixes the amount to be paid either to the county assessor, or to the county trustee “as an annual license fee,” and enjoins on the county tax assessor the duty of making diligent inquiry as to the number of dogs subject to the license fee while he is assessing the property in the county, and of demanding payment when the license fee has not been otherwise paid.

Sections 2 and 5 of said statute define the duties of the county tax assessor with regard to the ascertaining of the dogs on which a license fee is to be paid, with the names of the persons required to pay same, and to define his duties with regard to the collection of said fees.

Section 3 provides the method for the accounting by the tax assessor for money paid to him under the provisions of the statute, and requires that all such money shall be paid to the county trustee, to be kept separately for a fund to be known as the “sheep fund,” a record of which is also to be kept by the county court clerk.

Section 6 makes it a misdemeanor in office for the county tax assessor, or the county trustee, or any other person, to fail or refuse to perform the duties enjoined upon them by the provisions of the statute.

Section 7 requires the disclosure by every person subject to taxation in any county of the number of dogs owned, kept, or harbored by him, or by any member of the family residing with him, and providing further that any person who shall make a false statement under oath to the county assessor, or county trustee,, as to the number, kind, and sex of such dog or dogs owned, kept, or harbored by him. shall be deemed guilty of perjury, and-upon conviction thereof shall be punished by law for such offense.

Sections 4, 8, 9, and 10 define certain acts with regard to the keeping, owning, or harboring of dogs as misdemeanors, and fix the punishment therefor.

Sections 11, 12, and 13 relate to the disposition of all money derived from the license fees, constituting the same as a “sheep fund,” for the payment “of damages sustained by sheep owners of sheep killed, maimed or damaged by any dog or dogs within any county of the State.” To such fund is also to be added all fines assessed-and collected under the provisions of the statute. In section 13 is contained the provision that whenever the name of the owner of any dog killing or damaging-sheep is known, the right of action accruing to the owner of the injured sheep against the owner of the dog is required to be assigned to the county trustee, and suit must be brought to reimburse the “sheep fund” for money paid out for such damage.

Section 14 fixes the compensation of the tax assessor for each dog license issued by him, and requires that a metal tag containing an identification number be issued for each dog licensed.

In section 15 it is provided that the statute shall not apply to dogs brought into the State temporarily and solely for the purpose of “bench shows,” sport, etc.

Section 16 provides that the license fee for each year must he paid on the first day of each year after 1919, April 15th being prescribed as the day of. payment for the year 1919, the statute having been enacted on March 26, 1919.

Section 17 contains provisions with regard to the disposition of the “sheep fund,” and provides that that portion of such fund remaining in the hands of the county trustee on May 1st, which was collected during the previous calendar year, must be turned over to'and become “a part of the common school fund of the county in which the fund was collected.” The “sheep fund” is to be kept on deposit with interest at not less than 3 per cent.

We are of the opinion, after a careful examination of the authorities bearing upon the questions presented, that said statute is not subject to the constitutional objections urged against it, but is a valid exercise of the police power of the State for the purpose, as expressly stated in the title of the statute, of protecting ‘ ‘ the safety of the people and of property.” The police power is coexistent with the taxing power, but it is in no wise dependent thereon, and in the exercise of the police power the legislature is not hampered by any limitation placed by the Constitution on the exercise of the taxing power of the legislature.

We do not think that the imposition of a license fee as a condition precedent to the right of citizens of this State to own or keep a dog under the terms and purpose of the statute involved, is the levying of a tax under the State’s taxing power, but is a method adopted by the legislature of regulating the keeping of dogs, designed expressly to reduce their number, and to discourage per • sons from keeping or harboring worthless dogs with vicious tendencies.

The purpose and object of the statute is clearly stated in the first clause of the title as the regulation of the owning, keeping, and harboring of dogs, so as to protect the safety of the people and of property. The remaining clauses of the caption merely relate to the means by which this purpose and object are to be accomplished, by providing a license fee to be paid for each dog, providing for the disposition of such license fees and by providing penalties for the violation of the statute, whether by the official required to enforce it or by the citizen.

There is a marked distinction between taxation for revenue, as authorized and limited by section 28 of article 2 of our Constitution and the imposition of license fees for the purpose of regulation in the exercise of the police power of the state.

The rule is stated by Mr. Cooley, in his work on Taxation, vol. 3 (3d Ed.), 1125, as follows:

‘ ‘ There are some cases in which levies are made and collected under the general designation of taxes, or under some term employed in revenue laws to indicate a particular class of taxes, where the imposition of the burden may fairly be referred to some other authority than to that branch of the sovereign power of the State under which the public revenues are' apportioned and collected. The reason is that the imposition has not for its object the raising of revenue, but looks rather to the regulation of relative rights, privileges, and duties as between individuals, to the conservation of order in the political society, to the encouragement of industry, and the discouragement of pernicious employments. Legislation for these purposes it would seem proper to look upon as being made in the exercise of that authority which is inherent in every sovereignty, to make all such rules and regulations as are needful to secure and preserve the public order, and to protect each individual in the enjoyment of his own rights and privileges by requiring the observance of rules of order, fairness, and good neighborhood by all around him. This manifestation of the sovereign authority is usually spoken of as the police power. ’ ’

In Holst v. Roe, 39 Ohio St., 340, 48 Am. Rep., 459, which is a case involving a statute similar to the one under consideration, this distinction is further recognized in the following language:

“The police and taxing powers of the General Assembly, though coexistent, are distinct powers; hence the exercise of the former is not restrained by the existence of the latter, though it may result in producing revenue, as, for instance, in imposing fines in punishment for offenses.”

In Mitchell v. Williams, 27 Ind., 62, a case involving a similar statute, the court said: “It is a matter of no consequence how the sum charged to the owner of a dog may be collected. If it be deemed more convenient to place it upon the tax duplicate, it does not therefore make it a tax, and subject to the constitutional objection.”

In Tiedeman on State and Federal Control of Person and Property, vol. 2, pp. 845, 846, it is stated-:

“Regulations of this general character are to be found in very many, if not most, of the States. The constitutionality of laws has been very generally sustained which authorized the killing of all dogs without a collar. And it has frequently been held lawful for the State, as an encouragement for the rearing of sheep, to discourage the keeping of dogs by the requirement of a license fee for each dog. And, conceding the right of the State to inquire a license fee for the keeping of a dog, which is intended to operate as a check upon the keeping of dogs, the amount of the license is not open to judicial revision. It cannot be confined by judicial intervention to the mere expense of issuing the license. In order to operate as a restraint upon the keeping of dogs, the amount of the license must be large enough to make it burdensome to keep dogs, and, as has been fully explained in connection with the discussion of licenses in general,, the imposition of such license, as a restraint upon the doing of something which inflicts or threatens to inflict injury on the public, is free from all constitutional objections.”

In R. C. L. vol. 26, p. 17, section 4, it is said:

' “Some governments derive a considerable revenue from a judicious exercise of the power of regulation; but, since a tax is a charge imposed for the purpose of raising revenue, a charge primarily imposed for the purpose of regulation is not a tax, and is not subject to the constitutional limitations upon the power of taxation. Thus, when the legislature desires to place some limit upon the number of people who will engage in a particular occupation, which if carried on without restraint as to numbers will be injurious to the public welfare, or wishes to restrict the frequency with which some act will he performed, without prohibiting it. altogether, it often imposes a charge or fee upon those engaging" in the occupation of performing the act. If the primary purpose of the legislature in imposing such a charge is. to regulate the occupation or the act, the charge is not a tax, even if it produces revenue for the public. If, however, the primary purpose of such a charge is revenue, it is a tax, and is subject to the limitations upon the power of taxation, and not to the limitations upon the power of regulation. A characteristic example of a pecuniary charge imposed under the power of'regulation. is a license fee imposed by a State under its general police powers upon acts or occupations which unless controlled are hurtful to the public health, safety, or morals. Thus a high liquor license fee is not a tax. So also a license fee for the keeping of dogs is hot a tax.”

In Litchville v. Hanson, 19 N. D., 672, 124 N. W., 1119, Ann. Cas., 1912D, 876, it was held that municipal corporations may levy a tax on the privilege of keeping dogs; that such a tax is not assessed by valuation, but is a specific assessment, to be regarded as a license; that it cannot be regarded as a tax on property within the act exempting personal property from taxation; that it is a special privilege tax, a special and peculiar regulation for the purpose of repressing mischief likely to be done by them to more valuable property and to persons.

In discussing this question the court said:

“It is not a charge on property to raise a revenue, but is in the nature, of a license under a special police regulation, and is a constitutional exercise of the police power” —citing 2 Desty on Taxation, p. 1403; Carthage v. Rhodes, 101 Mo., 175, 14 S. W., 181, 9 L. R. A., 352; Blair v. Forehand, 100 Mass., 136, 97 Am. Dec., 82, 1 Am. Rep., 94; Faribault v. Wilson, 34 Minn., 254, 25 N. W., 449; Cranston v. Augusta, 61 Ga., 573; Woolf v. Chalker, 31 Conn., 121, 81 Am. Dec., 175; Hendrie v. Kalthoff, 48 Mich., 306, 12 N. W., 191.

In Carthage v. Rhodes, supra, the court said:

“ Taxation may he for the purpose of raising revenue, or for the purpose of regulation. Where for the purpose of regulation, it is an exercise of the police power of the State. They are both distinct, coexistent powers in the State, and either or both may be exercised through a municipal corporation. In this case, by the terms of the charter, both powers are granted to the city of Carthage as to the dogs of that city. The dog license tax required by its ordinances is easily referable to the exercise of, the police power granted. While, in a sense, dogs are property, and the owner may invoke the aid of the law for their protection as property by civil action, and by statute they have been made the subject of larceny, yet they are a base sort of property, having no market or assessable value, do not enter into the estimate of the appreciable wealth of the State, and never have been considered proper subjects of taxation for revenue. On the other hand, their almost utter Worthlessness in a crowded city for any purpose except to please the whim or caprice of their owners, the half savage nature and predatory disposition of so many of them, rendering them destructive of animals of real value, and their liability to the fatal malady of hydrophobia, which in so many instances has sent them abroad as messengers of death to man and beast, point them out as subjects peculiarly fit for police regulation.”

The court, continuing, said: “That female dogs are charged a higher license fee than male dogs does not make the ordinance invalid.”

Additional authorities which hold that an imposition of a license fee for the keeping of dogs is not a tax, hut is merely a fee for the purpose of regulation, are as follows: Gibson v. Harrison, 69 Ark., 385, 63 S. W., 999, 54 L. R. A., 268; Griggs v. Macon, 103 Ga., 602, 30 S. E., 561, 68 Am St. Rep., 134; State v. Topeka, 36 Kan., 76, 12 Pac., 310, 59 Am. Rep., 529. (The italics are ours.)

In R. C. L, vol. 17, section 59, it is said: “If from a consideration of an ordinance or law it is clear that it was primarily designed as a means of raising revenue, the burden thus imposed must be treated as a tax, and not a license; and such an enactment cannot be considered as an exercise of the police power. Yet revenue: may incidentally result from an undisputed exercise of the police power. Indeed, such is usually the result of police regulations, whether made directly by the legislature, or by a municipality acting under authority of law. But that fact does not divest the regulation of its police character and render it an exercise of the taxing power. ’ ’

The act in question was passed by the legislature to regulate the keeping of dogs, because that animal is regarded as dangerous to the safety of persons and property owing to their vicious propensities, and their being subject to a contagious malady known as hydrophobia. In regulating such a dangerous agency, the levying of a license fee or tax is not only intended to cover the cost of issuing the license and the expense of regulation, but it is also intended to be sufficiently large to prevent or discourage the keeping of such animals.

In the case of Indianapolis v. Bieler, 138 Ind., 38, 36 N. E., 857, a municipal ordinance was involved which levied a license fee of $1,000 upon a foreign brewing company maintaining a depot for distributing beer within the limits of such municipality. It was urged that because the cost of issuing the license was small, and because the expense to the city of the regulation of the business was but little, the tax was for revenue, and not a police regulation.

The court, however, said that this was to misapprehend wholly the purpose of this class of legislation; the ordinance, being an exercise of the police power, expressly granted to the city by the legislature in restraint of the occupation which the law regards as harmful to society, was within the discretion of the city authorities.

To the same effect is the holding of the court in the cases of Duluth Brewing Co. v. Superior, 123 Fed., 356, 59 C. C. A., 481; United States Distilling Co. v. Chicago, 112 Ill., 19, 1 N. E., 166; Wallace v. Cubanola, 70 Ark., 395, 68 S. W., 485, and Toll v. Hudson, 78 Mo., 302.

In all of these cases the court held that a license fee of $500 per annum was not sufficient in itself to show that its purpose was to raise revenue, and hot to regulate.

There is a marked distinction between the rnles applying to license fees imposed upon useful and beneficial occupations, which the sovereignty wishes to regulate, but not restrict, and those which are inimical and dangerous to public health, and to the safety of persons and property.

In the cases of State v. Erwin, 139 Tenn., 341, 200 S. W., 973, and Ponder v. State, 141 Tenn., 481, 212 S. W., 417, this court had under consideration statutes similar to each other and similar to the one now under consideration, each of which was described in its caption as an act to regulate the keeping of dogs, one applying to all dogs, and the other applying only to female dogs. The principal points of difference in the two statutes were that one required registration and the payment of a single fee for each dog during its lifetime, while the other required registration and the payment of -an annual fee. One required that all money from the payment of such fees, after paying the expenses incident to the administration of the statute, should be turned over to the common school fund, while the other required that such money be paid into a “dog and stock” fund, the disposition of which was provided for in another statute, such disposition being similar to that provided in the act now under consideration.

In both of these cases this court held that the object of the statute was the regulation of dogs, .and that the tax was only an incident to the object expressed, and was not put into the statute primarily for the purpose of raising revenue. In the last case referred to (Ponder v. State) the court said:

“These questions were ruled adversely to defendant’s contention in the case of State v. Erwin, supra, the court holding that the statute involved in that case, which, in principle, is the same as the statute involved in the case under consideration, did not have for its primary object the raising of revenue, but was a police regulation, its object being to regulate dogs; that the tax was only an incident to the object expressed, and was not much more than enough to cover the cost of its execution. ’ ’

The holding of this court in the two cases of State v. Erwin and Ponder v. State, supra, conclusively settle in favor of the validity of the statute now under consideration every question which is raised as to its validity, except' with respect of the provisions for the disposition of the money constituting the “sheep fund.”

After a careful examination of the authorities, we have been unable to find any case in which it has been held that any legislature exceeded its constitutional authority or its police power in providing for compensation to owners of sheep killed or injured by dogs out of money produced in a method similar to the method provided in the statute under consideration. The cases hereinafter cited show that a contrary view has been taken.

In Van Horn v. People, 46 Mich., 183, 9 N. W., 246, 41 Am. Rep., 160, a statute was under consideration which embodied a “scheme . . . intended to compel those who own and keep dogs to provide a common fund for repairing or at least mitigating such losses as are inflicted by those animals by wounding and destroying sheep.” After stating that the proneness of dogs to such mischief was so notorious that reference to it as a reason for the statute was useless, the court said:

“The enactment does not appear to he for revenue nor to raise money by way of tax as that expression is there made use of. . . . It is a species of legislation which pertains to another department of power, and where the State, in pursuing’ its duty to accommodate as far as practicable the desire and the right to keep dogs to the more beneficial right of breeding and keeping sheep, has seen fit to apply the method marked out in this statute. The act is an exertion of the police power, and no reason is perceived for denying its validity. In consequence of the acknowledged excellence of some of their traits and their remarkable attachment to mankind, and on account, at the same time, of their liability to break through all discipline and act according to their original savage nature, and because also of their liability to madness it has been customary always to make dogs the subject of special and peculiar regulations. ’ ’

In that case the court further said: “As the charge laid on the owners of dogs is a pecuniary burden imposed by public authority, it partakes no doubt of the character of a tax, and for many purposes might be so spoken of without harm. But no accession of public revenue, either general or local, is authorized or aimed at. The end sought is different. The purpose is to prescribe a regulation under which dogs as animals dangerous to sheep and of far less public utility can alone be held, and which, if carried out, will tend to discourage an undue increase of dogs, and at the same time will afford new protection against the effects of the mischief to which they are most given.”

Later the Supreme Court of Michigan again considered the statute in the case of Longyear v. Buck, reported in 83 Mich., 236, 47 N. W., 234, 10 L. R. A., 43, and quoted'with approval from Van Horn v. People. In this case the court overruled the contention that the license fees collected in a city, where there were no sheep could not he added to a fund out of which sheep owners in adjoining territory could be compensated for injuries done to their sheep by dogs.

In Mitchell v. Williams, supra, a statute entitled “an act to discourage the keeping of useless and sheep killing dogs, and providing penalties for the violation of any of the provisions of said act, by officers and others,” etc., was considered. The Supreme Court of Indiana, in passing upon the validity ©f said statute, said:

“The plain purpose and intent of this act is, not to provide a revenue for public uses, hut to discourage the keeping of dogs, and indicating it to be the policy of the State to protect one species of valuable property from destruction by another species, which is in terms declared useless. That, as a measure of internal police, the legislature has the power to encourage the rearing of sheep, and, with that object in view, to discourage' the keeping of dogs, animals which are not even the subject of larceny at common law, cannot be doubted. In Thorpe v. Rutland & Burlington Railway Co., 27 Vt., 140, it was held that ‘this police power of the State extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State.’ Nor can it he denied that the means adopted are legitimate to secure the end in view. It is a matter of no consequence how the sum charged to the owner of a dog may he collected. If it he deemed more convenient. to place it upon the tax duplicate, it does not therefore make it a tax, and subject to the constitutional objection.”

In Cole v. Hall, 103 Ill., 30, a similar statute to the one under consideration was considered and passed on. The court in that case said:

“It would seem it can make no difference what disposition is made of the ‘license fee’-when collected. By the provisions of the act it is appropriated as indemnity to persons that have sustained damage done by dogs, other than their own, to sheep, and that would appear to he in the interest of justice and right. No better disposition could he made of it.”-

In Holst v. Roe, supra, the court, after referring to the characteristic traits of dogs as inimical to the “important industry of raising sheep and wool,” and quoting approvingly from Van Horn v. State, supra, said:

“If the government were powerless to protect this industry from the ravages of dogs, it would indeed he impotent to protect its citizens in the enjoyment of property, than which none other is more essential to the public welfare. ’ ’

A similar statute was held to be constitutional by the' Court of Appeals of Kentucky in the case of McGlone v. Womack, reported in 129 Ky., 274, 111 S. W., 688, 33 Ky. Law. Rep., 811, 17 L. R. A. (N. S.), 855. The court, after holding that the purpose of the statute-was not to provide revenue, but an exercise of the police power, ’ said:

“As we view it, the statute does not confer any special privilege on the owners of sheep. It merely protects these owners from the destruction of their property by dogs. It is the duty of the State to protect every citizen in his life, liberty, and property; and it cfertainly 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 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. Jt 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 suffering enables the dog to prey upon them without any danger that the owner will be warned of the destruction of his property by the outcry of the dying animal. No other domestic animal that we can call to mind is so liable to destruction by dogs as the sheep. It therefore seems to ús clearly the duty of the State, if the furtherance of the sheep industry is a desirable end, to so regulate the ownership of dogs as to protect the sheep from destruction by these animals. The statute is certainly a reasonable one, and lays only a small burden upon the owner of each dog; and, in effect, it only requires the owner to make good the damage done by his property. The fact that sheep are generally killed at night when it is impossible to ascertain the owner of the dog committing the ravage makes it necessary, if protection is to be had through this channel at all, that each owner of a dog should be required to contribute a small amount to a common fund dedicated to. the remuneration of owners of sheep killed by unknown dogs. As said before, this is simply requiring the owners of dogs to make good the ravages of dangerous animals kept by them; and no citizen has just cause of complaint, if he keeps animals destructive to the property of others,- that he is required to make good the damages done by them. The statute, in truth, is but an enforcement of the maxim, ‘Sic utere tuo ut alienum non laedas/ and, as such, its constitutionality is beyond successful question.”

In the case of Noble State Bank v. N. C. Haskell, 219 U. S., 104, 31 Sup. Ct., 186, 55 L. Ed., 112, 32 L. R. A. (N. S.), 1062, Ann. Cas., 1912A, 487, the validity of a statute of the State of Oklahoma was upheld which authorized the levy and collection of an assessment on every bank existing under the law of that State of one per cent, of the banks’ average daily deposits for the purpose of creating a depositors’ guaranty fund to secure the full repayment of deposits in case it or any other bank existing under the State laws should become insolvent, upon the idea that such a statute was a valid exercise of the police power of the State and subserved the public welfare.

We are of the opinion that the cases herein cited furnish sufficient authority, as well as just and sufficient reasons, to warrant this court in holding that the statute under consideration was a valid enactment. It has been suggested that the act does not provide that the cost of its administration shall be paid out of the fund derived from its execution, but that this burden must necessarily be borne by the public revenues of the State. This suggestion may be answered by saying that there is no authority, either express or implied, given in the act to pay any part of the cost of its administration out of the public revenues of the State. The act expressly provides that the fee of the assessor for assessing and collecting the tax on each dog shall be paid out of the tax collected. We think authority may be implied from ¡the provisions of the act for the payment of the cost of the record book which he is required to keep, and the cost of the receipts and metal tags which he is required to furnish each person paying his dog' tax, out of the fund derived from the collection of the license fees. Certainly the act does not provide for the payment of any of these expenses out of the public revenues.

Without further elaboration, we hold that the statute is valid, and that the court below committed error in-quashing the indictment against the defendant, and the judgment will be reversed, and the case remanded for further proceedings.

It is quite probable, in view of the fact that a doubt has existed in the minds of some of the circuit and criminal judges of the State, and of some members of the profession, as to the validity of the act, that many persons have not paid their dog tax, and some have been indicted for not doing so. We recommend to the circuit and criminal judges of the State that, where persons have been indicted for not paying such tax, such indictments be nollied upon the payment of said tax and the costs.