(dissenting).
I am unable to concur in the conclusions reached by the majority of the court upholding the constitutionality of the statute which is the basis of the indictment in this ease. Feeling as I do that some of the safeguards of the rights of the citizens of the State, under our Constitution, are invaded by the legislative enactment involved herein, I am constrained to put in writing! the reasons for my dissenting views.
I recognize the right and the power of the legislature to regulate the business of owning and keeping dogs, and that it may, without violating any of the provisions of our Constitution, require the payment of a license fee by those who own and keep dogs, but I deny that it has any power under the guise of police regulations to impose a tax for revenue and devote that revenue to any other than a public purpose, and I maintain that this is what the act in question does.
Under the view of the majority of the court, the legislature may exact any amount of revenue under its police *588powers without reference to the limitations on the taxing power of the legislature described by the Constitution, and devote that revenue to any purpose whatsoever ; the argument being- that the legislature may regulate the business of owing and keeping- dogs by the imposition of a tax, whether that tax be imposed according to the Constitution or not,' and, having that power, it may make any disposition of the revenue derived therefrom.
The real purpose of the act in question is not disclosed in the caption thereof. It purports to.be an act to regulate the owning, keeping, or harboring of dogs, and to provide a license fee for each dog owned, kept, or harbored, and for the disposition of such fees. It does not disclose the fact that under the provisions of the act itself every cent of the so-called license fee of $3 for a female dog and $1 for a male dog, except the sum of fifteen cents to the tax assessor, is to be devoted to the primany purpose of creating what is called in the act a “sheep fund,” to be used for the payment of damages sustained by sheep owners. Nor does it disclose the further fact that all fines belonging to the county, where such fines have been assessed, shall likewise be placed to the credit of the “sheep fund,” and that this “sheep fund” is to be given over to that limited number of citizens who may happen to sustain damages by reason of the ravages of dogs upon sheep.
I do not question the proposition that, because revenue may incidentally result from the imposition of a license fee, that fact does not make the law one for revenue. But, where the license fee or charge levied as a license, *589or a specified portion thereof (in this case all of it except fifteen cents), together ■with all fines and penalties derived from the enforcement of the law, are altogether devoted to the purpose of creating a fund, whatever disposition may he made of it, it cannot he said to he merely incidental. And I question the right of the legislature to devote revenue, whether derived directly in accordance with the tax provisions of the Constitution, or under the police power, or under any other power imaginable, to any other use or purpose than for the public purposes prescribed by our Constitution.
It is conceded by the majority opinion that, if the fee prescribed by the act is a tax, then the act is unconstitutional. Whether it .is a tax or not, it must be conceded, is not to be determined from the mere terms used in defining or describing it. We may look to the whole act’ and ascertain therefrom whether the license fee be a tax or whether it be a mere license fee. The act denominates the charge as being a license fee.
Section 1 of the act provides that every person keeping a dog shall pay “as an annual license fee to the county assessor or county trustee the sum of $1 for each male dog or spayed female dog, more than six months of age so owned, harbored or kept, and the sum of $3 for each and every female (unspayed) dog, more than six months of age, so owned, harbored or kept. ’ ’
Section 2 then requires the county assessor to give a receipt ior money paid him, and that this receipt shall be designated as a dog license. The assessor is required to take a record of persons owning dogs, and a copy of the receipt be given to each owner, setting forth the num-*590her of dogs, name, age, sex, and breed of the dogs, and the amount paid to Mm.
Section 3 provides that the money collected by the tax assessor is to be delivered to the county trustee.
Section 4 prescribes that any person keeping a dog who shall have failed to pay the license fee within thirty days, upon demand of payment by the county assessor, shall be guilty ‘of a misdemeanor, and upon conviction shall be fined not less than $10 nor more than $50 by the court having jurisdiction thereof.
Section 5 makes it the duty of the assessor to report all the information obtained to the county trustee, and the trustee is required to report all such information tó the district attorney-general, whose duty it is made to prosecute any persons violating* the provisions of the law. If it so happens that the criminal court is not in session, then a warrant must be sworn out against the delinquent, and prosecuted before a justice of the peace. All funds collected for violations of the act shall be turned over to the county trustee, to be held by him as a part of the “sheep fund,” afterwards in the act provided for.
Section 6 provides that any trustee or assessor or other person upon whom is enjoined any of the duties prescribed by the act shall be deemed guilty of a misdemeanor in office for violation thereof.
Section 7 provides that every person liable to taxation must make and subscribe to an oath to the county assessor stating the number of dogs, whether male or female, and, if female, whether spayed or unspayed, over the age of six months, kept by him, and, if any person make a false statement, he is deemed guilty of per*591jury, and upon conviction thereof shall he punished by law for that offense.
By section 8 it is provided that any person who owns of keeps a dog after he knows that the dog has killed, maimed, chased, or worried' sheep shall he guilty of a misdemeanor, and upon conviction thereof shall be fined not less than $10 nor more than $50.
By section 9 it is made a misdemeanor for any person to keep or harbor a dog who has not paid the tax assess- or or county trustee the required license fee, and upon conviction they shall be fined not less than $10 nor more than. $50.
By section 10 it is declared a misdemeanor for a person owning or keeping a female dog to permit it to run at large when in heat, after he knows such dog to be in heat, and upon conviction thereof shall be fined not less than $10 nor more than $50.
All the revenue derived from violations of the law by means of the fines and penalties just described, as well as the license fee, shall constitute a fund known as the “sheep fund.” .'
Section 11 provides: “Sec. 11. Be it further enacted,. that all money derived by the licensing of dogs, collected by the county assessor or county trustee, as provided by this act, shall constitute a fund known as the ‘ Sheep Fund,’ which shall be kept’by the county trustee and used 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 of Tennessee, and each county trustee shall colléct all fines belonging to his county from the respective courts where such fines have *592been assessed under, tbe provisions of tbis act, and all sucb fines shall be placed to tbe credit of tbe ‘sheep fund, ’ as herein provided for. ’ ’
Thus it will be seen a scheme is devised for tbe production of a large revenue to make up a fund from which sheep owners may be compensated for their personal losses by the ravages of dogs. Not even the expense of the administration of the enforcement of the law is taken care of out of the license fee, or from any other source. This burden must necessarily be borne by the public revenues of the State, with the single exception of fifteen cents to the tax assessor for assessing and collecting the tax. Even the expense incident to the cost of the record book required to be kept, the cost of the receipts, and every other expense and charge fixed in the act, except the fee of fifteen cents and the cost of a metal tag which is to be borne by the dog owner, must come from the public revenues.
By the opinion of the majority it is said that the act does not provide for the payment of any of these expenses out of the public revenues. To be sure it does not, but all these expenses, the costs of witnesses, the fees of officers, and every other item of expense connected with the enforcement of the law has to be paid, and the State is deprived by this act of any of the funds derived from the license fee, or from fines, with which to pay this expense., but devotes it to the private purpose of indemnifying the sheep owner. In this roundabout way the public is made to pay the costs and expenses incident to this law out of funds which it would otherwise be entitled to devote to public purposes, in order to pro*593tect a private industry. This violation of the rights of the citizens cannot he justified merely because, if this sheep fund is not exhausted in the payment of private claims, it may he devoted to the public school fund.
Can it be said that a charge thus imposed upon the owners of dogs is one for the primary purpose of regulating the dog industry, and not a tax within the meaning of our Constitution?
Taxes .have been variously defined. Practically all of the definitions given by the courts are stated in 37 Cyc., pp. 706-708, as follows:
“The terms ‘tax’ and ‘taxes’ have been defined as a rate or sum of money assessed on the person or property of a citizen by government for the use of the nation or State; burdens or charges imposed by the legislative power upon persons or property to raise money for public purposes, and the enforced proportional contribution of persons and property levied by authority of the State for the support of government and for all public needs. Taxation is the act of laying a tax, or imposing these burdens or charges upon persons or property, or, in other words, the process or means by which the taxing power is exercised. Other definitions relating to taxes and taxation are given in the notes and subsequent sections of this article.
“In a general sense the terms ‘tax’ and ‘taxes’ include every burden that may be lawfully laid upon the citizen by virtue of the taxing power, but their application in’ constitutional or statutory provisions, varies to some extent according to the intention and purpose of the particular provision, and even the fact that a burden is *594imposed in the exercise of the taxing “power does not necessaiily make it a tax. .The essential characteristics, of a tax are that it is not a voluntary payment or donation, bnt an enforced contribution, exacted pursuant to legislative authority, in the exercise of the taxing-power, the contribution being of a proportionate charac-' ter, and payable in money, and imposed, levied, and collected for the purpose of raising revenue, to be used for public or governmental purposes, and not as payment for some special privilege granted or service rendered. Taxes and taxation are therefore distinguishable from various other contributions, charges, or burdens paid or imposed for particular purposes or under particular powers or functions of the government. Whether a particular contribution, charge, or burden is to be regarded as a tax depends upon its real nature in view of these essential characteristics, and, if it is in its nature a tax, it is not material. that it may be called by a different name, and conversely, if it is not in its nature a tax, it is not material that it may have been so called.” 37 Cyc., pp. 706-710.
Unquestionably the license.fee prescribed in this act is a burden laid upon the citizen who happens to be the owner-of a.particular class of property, and the object and purpose of levying the tax or charge is to create a fund to be used for governmental purposes. Of course, the fact that, this fund is devoted to an unlawful purpose cannot relieve it of the characteristics of a'tax, because whatever purpose the legislature may express'is a governmental purpose, whether constitutional or .not, with:in the definition of the term taxation. - ' 1 •.
*595It is a settled rule of law that no legislative body can impose a license tax for revenue purposes under the guise of the police power, and it is equally well settled that a license fee required of useful employments can carry with it only such fee as is necessary to pay the expenses of licensing, including reasonable compensation for the additional expense of supervision over the particular vocation, except, of course, the legislature cannot he expected to anticipate the exact amount of the expense to be incurred, and therefore any surplus derived from a reasonable exercise of legislative power may be devoted to some other purpose without infringing the taxation provisions of the Constitution.
It is practically conceded by the opinion of the majority that, if the keeping of dogs were a useful employment, then any license fee charged must be such and no more as to reasonably meet the additional expenses incurred by the State in the enforcement and administration of the law. It has been too universally decided to admit of contrary argument that any license fee which is unreasonably in excess of the estimated expense occasioned by any particular line of .business constitutes a tax, and not a license fee, and of course it follows that, where the license fee is specifically devoted to some other purpose it is a tax and not an exercise of the police power. 17 Ruling Case Law, pp. 532, 539, 543.
I quote from the above authority not so much for the purpose of showing what the decisions have been as to present in concrete form the reasons for the proposition that, when a burden or charge is levied against a citizen or a property holder beyond that which *596is reasonable for covering tbe expense of the enforcement of the law,' and certainly when it is devoted to an entirely different purpose, it becomes a tax, and the power to enforce it’s collection depends upon whether it has been levied in accordance with the limitations of the Constitution.
“It is a rule of wide acceptation that a municipal corporation cannot, under the guise of the police power, impose a licens.e tax for revenue purposes., 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 rendeb it an exercise of the taxing power. While it is no objection to a tax imposed under the police power that it may incidentally yield a revenue, still the tax cannot be made so heavy on a legitimate occupation as to create a monopoly, or, in effect, próhibit the pursuit of the occupation. The amount of the license fee or charge is to be considered in determining whether the exaction is one for regulation merely, or for revenue, the reason being that the amount of the fee might in some cases be so large as to suggest of itself, considering the character of the business to which it was applied, that it was in fact a tax for revenue.” 17 R. C. L., p. 543, section 59.
*597Of course, if a license fee or charge could be held to be a tax, by reason of the excessive amount of "the fee or charge, there is no escape from the conclusion that, if the tax by the act is devoted to other purposes, and certainly when devoted to a govermental purpose, it becomes a tax that must conform to the limitations of the Constitution.
Again quoting from Euling Case Law:
“It is well settled that the license required of useful employments can carry with it only such fee as is necessary to pay the expenses of licensing, including reasonable compensation for the additional expense of municipal supervision over the particular business or vocation; whereas the exaction of license fees for revenue purposes is the exercise of the power of taxation, and, as such, comes within the provisions of the constitution limiting the exercise of that power.” 17 R. C. L., p. 533, section 50.
Again quoting from Euling Case Law:
“It is a well-settled rule in may jurisdictions that a license fee may be of sufficient amount to include the expense of issuing the license and the cost of the necessary inspection or police surveillance connected with the business or calling licensed, and that the exaction of sums in excess of such expenses is, in effect, nothing else than a tax on the business. But where the ordinance conforms to the rule, charges thus imposed are in no sense a tax, fine, or penalty, but a legitimate fee charged for services rendered, including the expenses which may be incurred in the enforcement of such police inspections or superintendence as may be lawfully exercised over the *598business. Under this rule, in fixing the fee it is proper and reasonable, however, to take into account not only the expense of, direct regulation, but all the incidental consequences that may be likely to subject the public to cost in consequence of the business licensed. As a general rule, ‘at least with reference to employments not requiring restraint, a fee which is disproportionate to the cost of regulation will be deemed unreasonable; and so it has been held that, if there is no inspection or supervision by the municipality, there can be no license fee impose.” R. C. L., section 56, p. 539.
It may be well to notice some of the cases in which the courts of this country have made the distinction between a mere license fee and a tax :
The case of Ellis v. Frazier, 38 Or., 462, 63 Pac., 642, 53 L. R. A., 454, was one involving a statute imposing a tax on bicycles, to be used for the construction of bicycle paths, and in which the act was held to contravene a constitutional - provision against special or local laws for laying, opening, or working highways. The act set apart four-fifths of the tax as a fund for the purpose of constructing and maintaining bicycle paths, and this fact was held to show that the statute was primarily designed as a means of raising revenue, and the burden imposed must be treated as a tax, and not a license. In discussing the question the court said:
“The legislative assembly has referred to the levy as a tax, but the descriptive designation .is unimportant; for the object sought to be obtained by the enactment must determine the character of thé exaction.”
*599The court quoted from Cooley on Taxation at page 396, wherein that author said:
“The distinction between a demand of money under the police power and one made under the power to tax is not so much one of form as of substance. The proceedings may be the same in the two cases, though the purpose is essentially different; one is made for regulation and the other for revenue. If, therefore, the purpose is evident in any particular instance, there could be no difficulty in classifying the case and referring it to the proper power.”
The court approved a quotation from another case in which it was held:
“Whenever it is manifest that the fee for a license to conduct an occupation is substantially in excess of the sum necessary to cover the cost of issuing the license and incidental expenses attending the regulation of the business, the burden is a tax, and not a license. ’ ’
After quoting the above, the court said, with respect to the particular statute involved therein:
“Whatever the rule may be in respect to the granting of licenses which incidentally result in producing a revenue, or the law in relation to the authority of a municipal corporation in the maintenance of its streets, it cannot reasonably be inferred that the burden imposed by the act in question was an exercise of the police power of the State; for the use of a bicycle does not necessarily tend to the destruction of the highways. We do not wish to be understood as intimating that the sum of $1 more than the cost of executing the necessary receipts and supplying the requisite tags is an unreasonable exaction, *600bnt, inasmuch as that sum is set apart from each collection as a fund for the purpose of constructing and maintaining bicycle paths, it is evident, we think, from a consideration of the entire act, that it was primarily designed as a means of raising revenue, and the burden thus imposed must therefore be treated as a tax, and not a license.”
In the case of Wisconsin Telephone Co. v. City of Milwaukee, 126 Wis., 1, 104 N. W., 1009, 1 L. R. A. (N. S.), 587, 110 Am. St. Rep., 886, it was held that the power to exact from the telephone company, authorized by statute to erect its lines in the streets of the city, a license for the use of such streets, is not given to a municipal corporation by a charter conferring upon it general police power and right to control and regulate its streets and to prevent the incumbering of them. The act involved in that case required the payment by the persons erecting poles of an annual license fee of $1 for every pole, and the funds derived from such license were to be credited to and become a part of the general city fund. The court said:
“The plain import of this ordinance is that it grants the privilege to telephone and telegraph companies to occupy the streets of defendant city with their poles . . . in consideration of the license fee exacted. . . . There is nothing in the ordinance indicating that the fee is exacted for inspection or supervision, or that it will be used for such purpose, or that any such amount is necessary to defray the expense of such inspection and supervision. . . . Even if the city had, the right to impose reasonable charges for inspection and super*601vision, it should not he permitted, under the guise of such power, to collect large amounts of revenue for the benefit of the city, regardless of the amount necessary for such inspection and supervision.”
In the case of Ottumwa v. Zekind, 95 Iowa, 176, 63 N. W., 672, 29 L. R. A., 735, the court said:
“ ‘Licenses are a part of the police regulations of a city, and should be charged for as such and only to such extent as may reasonably compensate the city for issuing and enforcing the licenses, and for the care exercised by the city under its police authority over the particular person licensed. ’ . . . The amount of the license fee or charge is to be considered in determining whether the exaction is not . . . one of revenue or prohibition instead of one of regulation under the police power.”
The case of American Fertilizer Co. v. Board of Agriculture of North Carolina (C. C.), 43 Fed., 609, 11 L. R. A., 179, involved the constitutionality of an act of the legislature of North Carolina to the effect that no commercial fertilizers should be sold or offered for sale until the manufacturer or importer obtained a license from the State, for. which he should pay a privilege tax of $500 per annum, for each separate brand. The court recognized the right of the State to tax any person for •the privilege or doing any particular business therein, under the authority of McCullough v. Maryland, 17 U. S. (4 Wheat.), 316, 4 L. Ed., 579; but this statute was challenged upon the ground that it imposed a tax on fertilizers. The court said:
“If the legislation . . . can properly be referred to” the police “power, it will be because the right to *602pass inspection laws may be deemed to have its foundation in the police power of a State. Certainly if it be anything but what the act itself seemed to contemplate — a tax on an occupation or a privilege tax — it is because it is used to secure an inspection of commercial fertilizers before they can be sold in North Carolina. Such a tax would be constitutional only within the limits of the Constitution. It cannot be sustained when evidently in erxcess of what is required for .such purpose, and when the proceeds are applied to other uses.
“We think that in this case the court might judically take notice of the evident fact that $500 on a brand of commercial fertilizers is a much larger sum than can be necessary for its inspection. But the court is relieved from all embarrassment in this respect by the fact that the act declares, by necessary implication, that the tax is not needed for inspection expenses. In section 22 $500 of the money received from the tax on fertilizers is appropriated to the North Carolina Industrial Association, and in section 23 $41,000 is given to pay the expenses óf the department of. agriculture, including $20,000 for the completion of the oyster survey, and 'all other revenues arising from the tax on fertilizers’ are 'appropriated to the establishment of an agricultural and mechanical college.’ ’’
The difference between a tax and a license fee is clearly expressed bj^ this court in McMillan v. City of Knoxville, 139 Tenn., 324, 202 S. W., 65, and it was therein recognized that a license fee is one that covers the expenses incident to its issuance and the expenses incident to the supervision of the particular business being regulated. The court said:
*603“A ‘license,’ in its truer sense, is issued under the police power,- while a license may he issued on the payment of an ‘occupation tax,’ levied under this taxing power embodied in the Constitution, revenue being its primary^ object, though regulation may be in mind as an incident. The two' charges and licenses are distinct things, but confusion of thought arises at times, due to the fact that a license may be issued in either case. In the one case the power exercised is that to license, and in the other to tax and to license. 3 McQuillin, Mun. Corp., section 961.
“Judge Cooley says that under the authority to license in the truer sense ‘a municipal corporation may by ordinance require a license to be first taken out, and charge a reasonable sum for issuing the same, and keeping the necessary record, but it cannot, by virtue of this authority, without more, levy a tax upon an occupation itself. ’ Mayor of Nashville v. Linck, 12 Lea (80 Tenn.), 507. A license in this sense is a permit issued not for revenue, but for regulation. As said, an occupation tax is levied for revenue primarily, and, in instances, for regulation incidentally.
“We are of the opinion that it was competent for the legislature to provide a regulatory license for, and also an occupation tax upon, such agencies. The two are not inconsistent; neither impinges on the other. 17 R. C. L., p. 486. Therefore the enactment of chapter 78 did not repeal chapter 70 of the Acts of 1917.
“It was competent for the legislature to add to whatever regulation was manifested in the imposition of the privilege or occupation tax, by providing for the more *604detailed policing regulation set forth in Acts 1917, chapter 78, and to fix a fee therefor.’ 1
“A true license fee, as contradistinguished from such a tax, should he fixed to cover the expense of issuing it, the service of officers, and other expenses directly or indirectly incident to the supervision of the particular business or vocation. There is no attempt in this case to question the amount of the license fee as being excessive or . so unreasonable as to partake of the nature of a tax. Ex parte Cramer, 62 Tex. Cr. R., 11, 136 S. W., 61, 36 L. R. A. (N. S.), 78, Ann. Cas., 1913C, 588.”
In Postal Telegraph Co. v. Taylor, 192 U. S., 64, 24 Sup. Ct., 208, 48 L. Ed., 342, there was involved an ordinance imposing a license tax or fee upon telegraph companies having poles and wires in the borough.
The license fee charged was held to be a tax because it was twenty times more than could possibly be incidental to inspection and supervision. The ordinance was held to be unreasonable, although it was urged by the municipality that it was a proper police regulation, and that the collection of the. revenue was but incidental to the protection of the lives and property of its citizens. In passing upon the validity of the ordinance, the court said: •
“When we come to an examination of the grounds upon which this kind of a tax is justifiable, and when we find that in this case each one of those grounds is absent, how is it possible to uphold the validity of such an ordinance? To uphold it in such a case as this is to say that it may be passed for one purpose and used for another; passed as a police inspection measure and *605used for the purpose of raising- revenue; that the enactment as a police measure may he used as a mere subterfuge for the purpose of raising revenue, and yet, because it is said to be an inspection measure, the court must take it as such and hold it valid, although resulting in a rate of taxation which, if carried out throughout the country, would bankrupt the company were it added to the other taxes properly assessed for revenue and paid by the company. ’ ’
For similar reasons the supreme court of the United States in the case of A. & P. Telegraph Co. v. Philadelphia, 190 U. S., 160, 23 Sup. Ct., 817, 47 L. Ed., 995, held that an ordinance requiring the company to pay a license fee for the supervision of its business was subject to some restraint in the amount of the charge which it exacts The court said:
“When it is authorized only in support of police supervision, the expense of such supervision determines the amount of the charge, and, if it were possible^ to prove in advance the exact cost, that would be the limit of the charge. In the nature of things that, however, is ordinarily impossible, and so the municipality is at liberty to make the charge large enough to cover any reasonable anticipated expenses. It is authorized to fix such charge in advance, and need not wait until the end of the period for which the license is granted. It may not act arbitrarily or unreasonably, but the risk may rightfully be cast upon the licensee.”
The majority opinion would seem to make a distinction between license fees charged upon useful employments and these employments which are deemed detrimental *606to the public health, and that therefore the legislature may iu the exercise of its police power, and without conformity to the limitations of the Constitution with respect to taxation, raise any amount of revenue from a person engaged in an employment deemed by the legislature to be detrimental to the public morals or the public health, and that by means of the license fee the legislature may prohibit or restrain such a business even though it results in the production of a revenue.
Unquestionably the legislature has the power if it exercises it in accordance with the limitations of the Constitution to tax undesirable occupations to the point of prohibition. It may exercise its police power through the method of taxation, but it cannot exercise its police power in violation of the mandates of the Constitution. If the legislature sees fit to prohibit or restrain the keeping of dogs, by means of a tax, then it must conform to the provisions of the Constitution on that subject. The exercise of the police power is not an unrestrained one. It cannot be exercised in violation of plain inhibitions in the Constitution. When a legislature invokes its taxing power to further police regulations, it must comply with the restrictions of the Constitution in that respect. Our legislature is authorized by the Constitution to levy a tax upon privileges. This power cannot be used to prohibit useful occupations, because the police power cannot be combined with the taxation power to destroy or to restrain useful employments. In such case the amount of the privilege tax must be a reasonable one. But, in the case of those employments deemed detrimental to the public health or to the public morals, the *607legislature may combine its taxing power with its police power, and impose a privilege tax which would operate as a regulatory measure under its police power. But it cannot raise revenue by taxation without complying with the provisions of our Constitution with respect thereto under the guise of the police power. Whenever it undertakes to destroy a dangerous business by the exercise of its police power, it must recognize the restraints of the Constitution. It may go to the end necessary to accomplish the purpose, provided it does not run counter to the Constitution itself. When it undertakes to utilize the taxing power, it must comply with the limitations which created the power.
I am perfectly aware of the fact that in some jurisdictions the courts have gone a long way to uphold legislation of this character. Similar statutes have been held constitutional by the Supreme Courts of Michigan, Indiana, Illinois, Ohio, and Kentucky.
In the case of Cole v. Hall, 103 Ill., 30, it Seems that it would make no difference under the Constitution of that State what disposition was made of the license fee when collected.
The Oklahoma banking laws, requiring bankers to pay a tax to create a fund for the protection of those who lose their money in bank failures, are referred to.
None of these cases can possibly be in harmony with the principle that a license fee in excess of reasonable expenses for supervision, or for other purposes than supervision, is nothing but a tax, unless it be upon the principle that any amount of money can be raised for any purpose under the police power, which tends to *608restrain or prohibit a business or occupation detrimental to the public health or to the public morals. It may be that the enactments in these States are in harmony with some privilege tax power conferred by the Constitution upon the legislature. I cannot agree to the soundness of any such decisions when tested by our Constitution.
I should not feel impelled to emphasize my dissent if I were convinced that this court had in previous decisions settled the question, as is stated by the opinion of the majority. While I am not prepared to concede the correctness of the decisions of this court in the case of State v. Erwin, 139 Tenn., 341, 200 S. W., 973, and Ponder v. State, 141 Tenn., 481, 212 S. W., 417, nevertheless they should be adhered to if conclusive of the question herein presented.
I recognize the soundness of the principle that the legislature is not obliged to calculate in advance the expenses incident to the administration of a law, and that it may within reasonable limitations estimate what would be a reasonable charge to meet expenses of that character, but whenever the legislature undertakes by means of a license fee to collect from property owners a fee or charge which upon its face is not intended for nor devoted to the purpose of meeting the expenses incident to the regulation, or which it can be readily ascertained is not intended for that purpose, I am obliged .upon principle and authority to conclude that such a charge constitutes a tax which must be raised in the method and according to the provisions and limitations of our Constitution. I conceive such to have been the holding of this court in the case of Phillips v. Lewis, 3 Shan. Cas., *609230. In that ease an act making it a privilege and imposing a tax thereon to keep a dog was under consideration. Its constitutionality was defended on the ground that it was an exercise of the police power inherent in the legislature. In denying this contention the court said:
“This power [the police power] is a very different one from the taxing power, as we think, in its essential principles, though the taxing power, when properly exercised, may indirectly tend to reach the end sought by the other in some cases. This power in the State is based on the maxims that a man must so use his own as not to do wrong to another; that the individual citizen shall so enjoy his own rights as not thereby to infringe upon the rights of others; that the interest and rights of the individual, or a class of individuals, is to be made subservient to the higher interest of the whole or majority of the people of the State whenever the minor interest shall conflict, in the judgment of the legislature, with that of the greater. . . .
“We will, however, from the cases before us, indicate some of the means which have been held constitutional and within the power of the legislature in other States by which the ownership of property may be regulated, and restraints fixed upon such ownership so as to prevent injury to others or detriment to great public interests, to which such ownership must always be held subordinate. Numerous instances will be found in Cooley’s Const. Lim., p. 595 (6th Ed. 739-741), for the proper exercise of this power, and are familiar to our own jurisprudence. Such cases, too, as in themselves are. *610not wrong:, but are declared to be public nuisances because endangering’ the public health, public safety, and, we may add, the same principle applies to that which is deemed injurious to any great public interest, and this to be judged of by the legislature. Milldams may be abated or destroyed, churchyards found detrimental to the public health, or in danger of becoming so, the keeping of gunpowder in cities or villages, the sale of poisonous drugs, allowing unmuzzled dogs to be at large when danger is apprehended from hydrophobia, and, we may say, the same, regulation might be applied in case of danger to any great public interest, such as sheep raising in our State. The author adds, ‘and, generally, it may be said that each State has complete authority to provide, for the abatement of nuisances, whether they exist by the party’s fault or not.’
“In Massachusetts it has been held that a law (Acts 1867, chapter 130, section 7) was valid providing ‘that any person may, and every police officer (and constable) shall kill, or cause to be killed, all dogs (whenever or) wherever found, not licensed and collared according to the requirements of a statute, and this without previous adjudication, and that an officer with a warrant for this purpose from proper authority, might even enter upon the close of an owner for this purpose.’ See 100 Mass. R., 136. We may say that this decision goes too far in one aspect, and there ought to be. a judgment of a court of competent jurisdiction as to the improper possession of the property before it could rightfully be destroyed.-
“At any rate, from a brief summary of their results it is clear from them all that the State may declare the *611keeping of this species of property a nuisance, or limit the number to be kept, or particular species of it, with known tendencies to do injury by devouring sheep; that it may impose penalties for keeping such animals, to be enforced by a fine or otherwise, on conviction; that it may regulate the manner in which such animals shall be kept, as by forbidding them to be allowed to go at large except when in use and under the control of competent persons, or require them to be kept muzzled or collared so as to be incapable of doing mischief, and, in fact, may make whatever (character) of regulation or requirement in this direction (that may be) adequate to the end to be attained, the protection of that valuable and increasing industry, wool growing in our State.
“To devise proper means in this direction is confided to the wisdom of the legislature, representing the people and familiar with their wants. But in case of destruction of this or any other property, except in the well-known cases, recognized at common law, of great emergencies, such as the destruction of a house in a city to check the progress of a fire, etc., and under these limitations, the rule of the Constitution of our State must be followed — that is, no man shall be deprived of his life, liberty, or property but by the judgment of his peers, or the law of the land. . . .
“It will readily be seen from this review of the principles that underlie the police power, as well as the cases on the subject, that this statute is not in accord with them, so far as the provisions for taxation are concerned. In fact, the law was not framed with that view, but purely as a revenue measure, no doubt intending, as *612one of the results, however, to he secondary to the first, to lessen the number of dogs in this State, hut- this secondary end which might or might not be the result cannot bring the tax imposed within the requirements of the Constitution, and the means used are not the appropriate ones to that end.
“It is proper, perhaps, before we close, to refer to one other argument presented — that is, that our license •laws in some cases, as in that of selling spirituous liquors, were intended to check its sale. This may be, and is no doubt, to some extent, a secondary result of the law, but the leading one (object) is revenue'.
“Rut it is clear this is only, an incident to such a law. We have but to look at the list of occupations made privileges to see that this is not the general object of such laws,- for instance, merchants, telegraph companies, artists, and photographers. These occupations were certainly not intended to be checked or lessened by declaring them a privilege, and taxing them as such. It does not follow that, because this effect may in some degree follow, that it is the end of the law, nor that it is done in the exercise of the police power of the state, especially when we see the leading object to be revenue. But we need not further pursue this discussion. The result is that the law before us must be held void as a revenue measure or tax imposed in violation of the limitations of our Constitution, and not sustainable under the police power of the State, because not so purposed in the first place, and, second, because not using the appropriate remedies for the exercise of such power. However lightly we may esteem the animal subject to *613'this tax, the Constitution of out State is not thus lightly to he esteemed, and must he held, both in great and small matters, to be the supreme law of the land.”
It is true that this court in the Erwin Case held the Act of 1907 (Laws 1907, chapter 32) to he constitutional. That act prescribed regulations for the keeping of dogs. It prescribed a $3 fee to be paid by the owner of the dog for the registration thereof. This fee was held to be only incidental to the payment of the costs of the execution of the act. The court said:
“The object of the present act is the regulation of dogs. The tax is only an incident to the object expressed and is not much more than enough to cover the cost of its execution.” .
Section 9 of the Act of 1907 provided: “It shall be the duty of the circuit court clerks by the 31st day of December of each year to make up their accounts and receipts from the registry of female dogs, from which shall be deducted the cost of books, collars, tags, or other necessary expense, and a fee of fifty cents for each female dog registered, which shall be the fee or compensation of the clerk, and he shall make a report to the commissioner of agriculture by the 10th day of January of each year of the number of female dogs registered in his county the preceding year. The balance, if any, remaining in the fund shall be turned in to the county trustee, who shall receipt the clerk for the same, and place the same to the credit of the common school fund, to be prorated as other school moneys collected by such trustee.”
*614Manifestly the purpose of this fee was to cover the costs and expenses incident to the administration of the law, and the part devoted to the school fund was simply what might remain, if any, over and above this reasonable estimate of what it would take to cover such expenses. This was manifestly in the mind of the court in the Erwin Case. Exactly the same provision is found ' in section 8, chapter 648, of the Private Acts of 1917, the constitutionality of which was involved in the Ponder Case.
The difference in the provisions of these latter acts and the one now under consideration constitutes the very thing which I say renders this act violative of the Constitution. In other words, whenever the legislature under the guise of a license fee fixes a tax for purposes other than those' incident to the administration of the law, or unreasonably in excess thereof, the fee becomes necessarily a tax which can only be levied in the method prescribed by our Constitution.
The act in question is objectionable for the further reason that it undertakes to appropriate the funds derived by means of license fee and fines and penalties collected to a private rather than a public use.
I conceive it to be wholly immaterial whether revenue is derived under the taxing power or any other power; it cannot be devoted to any other than to the public use, under the provisions of our Constitution. I am aware of the fact that some courts have held that it is immaterial to what use the money is devoted, so that it does not arise through the exercise of the taxing power of the legislature. I cannot conceive that the property of *615one citizen can be taken away from bim and given to some private industry or some private enterprise. Every cent of money which the legislature takes from any. citizen under our Constitution can only he for the purpose of devoting it to public uses. The property of a citizen cannot even be taken away from him for public purposes except in accordance with the constitutional guaranties. It cannot be taken away from him by any means for private purposes. I do not question the great importance of the sheep industry in this State, or any other State, nor do I question the fact that dogs are of such a nature as that their number should be reduced, and that the owners thereof should be compelled to make restitution ,to persons injured by reason of their vicious or destructive habits, but I apprehend that the rights- of the citizen as expressed in the Constitution are of more importance to the public than the mere proper solution of the dog question.
In the case of Fox v. Mohawk & Hudson River Humane Society, 165 N. Y., 517, 59 N. E., 353, 51 L. R. A., 681, 80 Am. St. Rep., 767, there was involved before the court, of New York an act entitled an act for the prevention of cruelty to animals, and empowering certain societies for the prevention of cruelty to animals to do certain things. The statute provided that every person who owns or harbors dogs within the limits of any city having a specified population in which there exists a society' for the prevention of cruelty to animals shall procure a yearly license for such animals and pay .$1 yearly to such society; the said license fees to be used by said society toward defraying the costs for carrying out the *616provisions of the statute, and to secure shelter for lost, strayed, or homeless animals, and for its own purposes.
The court- held that the act was unconstitutional so far as it'required the owner of the dog to pay a license fee to the defendant for its own use. The court quoted from People ex rel. Einsfeld v. Murray, 149 N. Y., 374, 44 N. E., 147, 32 L. R. A., 344, in which that court said:
“No exaction can. be lawfully made of a citizen by way, of tax, impost or excise, except under the authority of the legislature, and the product of such imposition is public money.”
The correctness of this doctrine was said to be too clear to be questioned. “The appropriation of public money for other than strictly governmental purposes and its expenditure through other than official channels have been most carefully limited by article 8 of the Constitution. ’ ’
The Constitution provided: “Neither the credit nor. the money of the state shall be given or loaned to or in aid of any citizen, corporation or private undertaking. This section shall not, however, prevent the legislature from making such provision for the education and support of the blind, the deaf and dumb, and juvenile delinquents, as to it may seem proper.”
It was further provided: “No county, city, town or village shall hereafter give any money or property, or loan its money or credit to or in aid of any individual association or corporation.”
With respect to these provisions of the Constitution and the act under investigation, the court said:
*617“By this comprehensive enumeration of money of the State, of a connty, city, town, or village, it is plain that the Constitution meant,to include all public moneys which are raised in any manner throughout the State as an exaction from the citizen by the taxing or licensing power of government.” „
Recently there was decided by the Supreme Court of the United States a case, that of Nicchia v. People of State of New York, 255 U. S., —, 41 Sup. Ct., 103, 65 L. Ed., —, having been decided at the October term, 1920, in which there was involved the constitutionality of the New York dog law. That law required every person who owns or harbors one.or more dogs within the corporate limits of any city having a population of over $800,000 to procure a yearly license and pay the sum of $2 for each dog. The American Society for the Prevention of Cruelty to Animals was empowered and authorized by the act to carry out its provisions and to issue licenses and collect the fees therefor. Its constitution,ality was upheld upon the ground that the license fees collected to the extent that they were not required to-be used in carrying out the provisions of the act might he retained by the society as compensation for its enforcement. The court said:
“Property in dogs is of an imperfect or qualified nature, and they may he subjected to peculiar and drastic police regulations by the State without depriving their, owners of any federal right. ... Its power to require those who wish to keep dogs to secure licenses from and pay fees to a public officer is also clear. And when the State, in the reasonable conduct of its own af*618fairs, chooses to intrust the work incident to such licenses and collection of fees to a corporation created by it for the express purpose of aiding in law enforcement, and in good faith appropriates the funds so collected for payment of expenses fairly incurred and just compensation for the valuable services rendered, there is no- infringement of any right guaranteed to the individual by the federal Constitution. Such action does not amount to the taking of one man’s property and giving it to another, nor does it deprive dog owners of liberty without due process of law.”
The reasons assigned by Chief Justice 0 ’Rear in his dissenting opinion in the case- cited and relied upon in the majority opinion in this case, aptly expresses my mews- upon the right of the legislature to devote public funds derived from dog license taxes to private uses. While this opinion of Judge O’Reab is a minority opinion, it was concurred in by two of his associates, and it seems to me its logic and reasoning is unanswerable and unanswered by the opinion of the majority of the court in the present case. He expresses my views so well that I quote his opinion in full: