Cooper v. Martin

• Decision Date: 02 November 1925
• Docket Number: 25141
• Court: Mississippi Supreme Court
• Parties: COOPER v. MARTIN. [*]

105 So. 740

141 Miss. 756

COOPER v. MARTIN. ^[*]

No. 25141

Supreme Court of Mississippi

November 2, 1925

Division B

ANIMALS. Person impounding cattle infested with fever tick may cause tick eradication authorities to take charge of them as running at large, although such cattle are in his pasture.

Under section 2, chapter 221, Laws of 1918 (Hemingway's Supplement 1921, section 5506h), where the owner of cattle infested with the fever tick lets them run at large, and they are impounded by another person to prevent depredations on crops, such person may cause the tick eradication authorities to take charge of them as provided in the statute, although at the time of such taking charge the cattle are in the pasture of such third person. Such person is not required to turn the cattle out of his pasture to depredate upon the crops five days, where the pasture is located in a stock law district, and where there is no contract between the owner of the cattle and the owner of the pasture.

HON. C C. MILLER, Judge.

APPEAL from circuit court of Lauderdale county HON. C. C. MILLER, Judge.

Replevin by John T. Cooper against John M. Martin. Judgment for defendant, and plaintiff appeals. Affirmed.

Affirmed.

Williamson & Gipson, for appellant.

Section 5495, Hemingway's Code, provides: "That before any county shall take up the work of tick eradication, that the board of supervisors shall order an election by giving thirty day's notice, to determine whether or not the county should come under said act, and if a majority of the qualified electors of the county voting in said election vote in favor of said act, it shall become operative in the county." The act spoken of is chapter 218, Laws of 1914, and it does not affirmatively appear in this record, from the evidence, that any such election was ever held in Lauderdale county.

There were no records whatever introduced, and there were no records offered in evidence to prove or attempt to prove that the people of Lauderdale county had elected or subjected themselves to the Laws of the state governing tick eradication.

We cannot look to the rules and regulations of the state live stock sanitary board because none were offered or introduced in evidence, and such rules and regulations, if any, must be proven in the same manner as municipal ordinances and the acts of the board of supervisors. See Covington Co. v. Pickering, 123 Miss. 210, 85 So. 114.

Therefore, if any part of the laws or rules and regulations governing tick eradication is applicable to this case, for either party to this litigation, it is section 5506, Hemingway's Mississippi Supplement of 1921, chapter 221, Laws of 1918. And we must bear in mind that this law is highly penal, and must be strictly construed. Abbott v. State, 106 Miss. 340, 63 So. 667.

In passing upon the question whether or not the trial court committed error in granting defendant's request for a directed verdict, every material fact which appellant's evidence tended to show, either directly, or by reasonable inference, should be taken as true. McKinnon v. Braddock, 104 So. 154.

In Bird v. Welch, Sheriff, 91 So. 568, this court held that a seizure, without writ, of undipped, tick-infested oxen was unauthorized where they had been running at large upon the common range, but were not running at large upon the commons or unfenced lands when seized by the officers.

We maintain that the method of enforcement in the case at bar was not reasonable, and was not within the bounds of the organic, law; that the cows involved in this litigation were taken from the plaintiff and withheld from him without due process of law; that the lower court erred in granting a peremptory instruction for the appellee for the reason that the appellant, plaintiff below, should have been granted a peremptory instruction to find for him, which instruction was requested by appellant and was refused by the lower court, and, therefore, we submit that the judgment of the lower court should be reversed, and that judgment should be entered in this court in favor of the appellant.

Amis & Dunn, for appellee.

This case is controlled by chapter 221, Laws of 1918. In Bird v. Welch, 91 So. 568, the court construed the act in question as not authorizing deputy sheriffs to seize oxen, although infested with cattle fever ticks, which were then yoked together as a team in charge of a, driver, and engaged in hauling logs on a public highway. Clearly the facts in that case did not authorize the seizure of the oxen by virtue of any provision of the statute. The statute is crude, but it is quite clear that the legislature intended thereby to provide that cattle found infested with cattle fever ticks, running at large upon the open range, commons or unfenced lands should be dealt with in the manner there in provided as a means of preventing the spread of the ticks. The procedure fixed by the statute is reasonable, and in our opinion in no wise violates any of the constitutional guaranties of the rights of property, etc.

It is perfectly manifest from all of the evidence in the case, that the cattle in question were infested, that they were running at large; (whether the act of the owner in permitting them to so at large was willful or intentional or not) that notice was given as required by the act; that the cattle were not removed by...