Byrd v. Welch

• Decision Date: 08 May 1922
• Docket Number: 22416
• Citation: 91 So. 568,128 Miss. 839
• Court: Mississippi Supreme Court
• Parties: BYRD v. WELCH, Sheriff

91 So. 568

128 Miss. 839

BYRD v. WELCH, Sheriff

No. 22416

Supreme Court of Mississippi

May 8, 1922

ANIMALS. Seizure without writ of undipped tick-infested oxen held unauthorized.

Chapter 221, Laws of 1918 (sections 5506g-5506i, Hem. Supp.), does not authorize seizure, without writ, of undipped tick-infested oxen from the owner while engaged in hauling on the public highway, but only authorizes seizure after notice while running at large upon the range.

HON. R S. HALL, Judge.

APPEAL from circuit court of Jones county, HON. R. S. HALL, Judge.

Suit in replevin by J. M. F. Byrd against W. E. Welch, Sheriff of Jones County, for possession of ten head of oxen. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Judgment reversed and case remanded.

W. B Collins, for appellant.

Counsel for appellee contended in the lower court that the appellee had the right to take the oxen in question from the appellant and dispossess him thereof by authority conferred on the appellee as sheriff of Jones county, Mississippi, by virtue of the statutes of the state relating to work of Tick Eradication in the state. The contended that by virtue of chapter 221, Laws of 1918, that the appellee had the right to dispossess the appellant of the oxen in question for the purpose of disinfecting the said oxen and ridding them of what is known as Texas Fever Tick, but the appellant contended that there was no violation of the said laws above referred to, and if there was, that the provision of the said statute was not complied with by the appellee or his deputies before taking the oxen in question. This statute is a highly penal statute and this court has repeatedly held that penal statute must be strictly construed and that nothing can be taken by implication or inference. In other words, this statute imposes a forfeiture, and statutes of this nature must be strictly construed, and always in a manner as favorable to the person whose property is to be seized or forfeited as is consistent with a fair principle or interpretation. It is a power granted to the sheriff and must be strictly construed against the officer acting under it and in as favorable manner to the person whose property is taken as is consistent with a fair interpretation of the statute. Penal statutes cannot be extended by construction so as to bring within their provisions cases, not embraced in their plain letter. Merrill v. Mechoir, 30 Miss. 516; Johnston v. State, 63 Miss. 228; Stafford v. State, 44 So. 801; Foote, v. Vacant, 34 Miss. 40. In the case of Foote v. Vacant, supra, the court said in deciding whether or not a person could recover a penalty on the official bond of a clerk for an alleged failure of duty: "And the statute provides that it may be recovered by an action of debt, which cannot be construed to mean an action of debt on the bond, for the reason that the statute must be strictly construed and cannot be made to embrace cases not coming within the letter of the law. This court had held in a number of cases, too numerous to mention, in cases which the forfeiture of property is sought under and by authority of statutes and in violation of certain penal statutes, that these statutes must be strictly construed and that before a forfeiture can be made, or a penalty placed upon the violator that the case must be brought within the strict purview of the statute under which the forfeiture is sought to be made or the penalty inflicted."

Let us read chapter 221 of the Laws of 1918, and see what is the real meaning of this statute and see if the facts in this case will bring it within the purview of this statute. Section 1 of this act provides: "That it shall be unlawful for any person, firm, or corporation owning or having in charge any cattle, horses or mules that are infested with the cattle fever tick, (Margaropus annulatus) to allow such animals to run at large or to be upon the open range, or unfenced lands, during such time that such animals are carrying the cattle tick upon their bodies."

Section 2. Should any cattle, horses, or mules, which are carrying the cattle fever tick (Margaropus Annulatus), upon their bodies be found running upon the open range, commons or unfenced lands, it shall be the duty of any inspector commissioned by the live stock sanitary board or any citizen of the county to notify the owner or persons having control of such animals; and such notices shall consist of either personal notice to such owner or persons, or by one publication in a newspaper published in the county having general circulation therein, or by posting notice in three public places in the county, one of which shall be at the county courthouse and if such animals are not removed within five days after such notification, publication or posting said notice, from the open range, commons or unfenced lands to notify the county sheriff forthwith that such tick infested animals are running at large, upon the open range, commons or unfenced places, and it shall be the duty of the inspector to dip or cause such animals to be dipped and thereafter be placed in enclosure and dipped in accordance with the regulations of the live stock sanitary board, and during such period as such animals are so confined, they shall be in custody of the county sheriff, who may collect reasonable fees for the feed, care and handling of such animals and any expenses so incurred in handling, dipping, confining or feeding or pasturing of such animals shall be a lien against them to be paid by the owner or owners of such animals before the same are released by the sheriff, and if such animals which have been so taken up and placed in the custody of the sheriff are not identified and claimed by the owner within a period of thirty days, such animals may be sold by the sheriff as provided by statutory law for estray animals.

Section 3. That any person, officer, firm or corporation violating or failing to comply with any of the provisions of this act shall be guilty of misdemeanor and upon conviction thereof in a court of competent jurisdiction shall be fined not less than five dollars, nor more than one hundred dollars, or imprisonment in the county jail not more than three months or both such fine and imprisonment.

It will be noted from the reading of this statute that before a sheriff has a right under or by virtue of the authority conferred in this statute to dispossess anyone of his cattle or to take them into his possession for the purpose of dipping them, they must: First, be found running at large on the open range or unfenced lands; second, he or some one else must give the owner of said cattle a five day's notice before the sheriff takes them into his possession, that they are infested with cattle tick; third, such owners...