Tenney v. Lenz

16 Wis. 566

• Court: Wisconsin Supreme Court
• Decided: January 15, 1863
• Status: Published

Opinion

By the Court,

Paine, J.

It seems to us very clear that chap. 175, of the Laws of 1860, is an exercise of the police power of the state and not of its taxing power. Dogs, though possessing many excellent qualities, are liable by running mad and destroying sheep to do great mischief. Hence it is strictly a legitimate exercise of the police power, “ to regulate and license the keeping of dogs,” as was done by the act referred to.

This being so, we cannot assent to the position taken by the appellant, that if the sum required for a license exceeds the expense of issuing it, the act transcends the licensing power, and imposes a tax. By such a theory the police power would be shorn of all its efficiency. The exercise of that power is based upon the idea that the business licensed, or kind of property regulated, is liable to work mischief, and therefore needs restraints, which shall operate as a protection to' the public. For this purpose the license money is required to be paid. But if it could not exceed the mere expense of issuing tho license, its object would fail entirely. Take, for example, the business of selling intoxicating liquors. Such a sum imposed for a license would operate as no restriction whatever. We have no doubt, therefore, that the legislature may, in regulating any matter that is a proper subject of the police power, impose such sums for licenses as will operate as partial restrictions upon the business, or upon the keeping of the particular kinds of property regulated. See Milwaukee Fire Department vs. Helfenstein, ante, 136. We have said thus much in answer to the point made by the appellant, though it could hardly be assumed that the sum of one dollar, required by this act for a license, is large enough to invalidate the law, even were the rule as the appellant contends.

The only other objection necessary to be noticed, is this. The appellant says the act in question does not repeal chapter 48 of the Revised Statutes, which gives a right of action by the owner of sheep killed by dogs, against the owner of the dog; so that although the defendant should pay the full amount of the damage do) e to the town, on a judgment in this action, he would still be liable to pay it over again to the owner of the sheep. This is not so. For although chapter 48 of the Revised Statutes, N not repealed, it cannot be assumed that the legislature intended to allow the owner of sheep killed, to have two remedies for the same injury, and recover on both. It furnishes the remedies, and he may elect either; but after recovering upon one, he cannot elect the other. This is evident from the fact, that this act provides that if the owner elects to prove his damage to the town, and to accept its order upon the treasurer for the amount, the town thereby becomes invested with his claim for damages against the owner of the dog, and authorized to bring the action, as was done here. This implies that his claim is transferred by the operation of the act, and the election of the owner under it, to the town; and if so, of course he could not afterwards sue on it himself. He might have proceeded under chapter 48, R. S., against the owner of the dog had he seen fit; but having chosen another remedy, under the act of 1860, the effect of which is to transfer his claim to the town, such right of action would no longer remain in him.

The judgment is affirmed with costs.