D'Aquilla v. Anderson

• Decision Date: 21 January 1929
• Docket Number: 27591
• Citation: 153 Miss. 549,120 So. 434
• Parties: D'AQUILLA v. ANDERSON et al. [*]
• Court: Mississippi Supreme Court

120 So. 434

153 Miss. 549

D'AQUILLA v. ANDERSON et al. ^[*]

No. 27591

Supreme Court of Mississippi

January 21, 1929

Division B

Suggestion of Error Overruled March 4, 1929.

APPEAL from circuit court of Wilkinson county, HON. R. L. CORBAN Judge.

Suit by Frank D'Aquilla against Nolan Anderson and others. Judgment for defendants, and plaintiff appeals. Reversed, and in part rendered, and in part remanded, with directions.

Judgment reversed, and cause remanded.

Jones & Stockett, for appellant.

The court should not have directed the verdict for appellees. Appellees claim as authority for their acts sec. 9, chap. 265, Laws of 1926. This calf had been released on November 11. Appellees were immediately advised that this calf had been released. If the calf had been released appellees had no authority to make this entry and seizure.

Appellees had no right or authority to make this search and seizure and the motion of appellant to exclude should have been sustained. Sec. 9, Chap. 265, Laws of 1926, provides no machinery or procedure for the searching of barns, inclosures, pens or homes and the seizure therein of such cattle if found. To do this a search warrant is vital and necessary. If this statute furnishes the authority to make a search and seizure without a search warrant or legal writ, to that extent it violates secs. 14 and 23 of the state Constitution. Even after being advised that this calf had been released these appellees, armed with a commission from a board, proceeded with their design and purpose without investigation of any kind. This is an attempt, without judicial determination, to destroy the rights and property of appellant. McBride v. State, 70 Miss. 717; Goltra v. Weeks, 70 L.Ed. 1074; Byrd v. Welsch, 128 Miss. 843.

In U. S. F. & G. Co. v. State, 121 Miss. 369, 83 So. 610, it was held: "Where plaintiff alighting from a train, intrusted her suit case to a transfer man and just after alighting the city marshal searched the suit case for alcoholic liquors supposed to belong to the transfer man over his protest and without a search warrant in such case the defendant marshal was violating section 23 of the Constitution of 1890 relating to unreasonable search and seizure and since he was presumed to know the law his act was a willful wrong and mental suffering was a proper element of damages." In the case at bar this was an unlawful, unreasonable, and unjust search and seizure. Moore v. State, 138 Miss. 116, 103 So. 483; Lee v. Oxford, 134 Miss. 647, 99 So. 509; Tucker v. State, 128 Miss. 211, 90 So. 845; Butler v. State, 135 Miss. 885, 101 So. 193; McNutt v. State, 108 So. 721.

In conclusion we submit that the procedure adopted and taken by the appellees shown by this record was and is unwarranted and unjust both in law, reason and right. Even though appellees entry was lawful they abused their authority and are liable. Dickson v. Parker, 3 How. 219.

Tucker & Tucker, for appellees.

Appellees were working under and seized the calf under authority of sec. 9, chap. 265, Laws of 1926. The calf was sold by the sheriff under authority of sec. 10, chap. 265, Laws of 1926. It is not contradicted that appellant received the five-days' notice, failed to dip the calf, that the calf was dipped, quarantined and placed in the custody of the sheriff by appellees, Live Stock Inspectors, and was sold by the sheriff according to law for the expenses so incurred. It is a well-established rule that one of the most important fields of legislation in which a state may enact measures under the police powers consists of regulations in the interest of public health, public safety and to establish regulations that are reasonably necessary to secure the general welfare of the state, and under this head would come the right to establish quarantine regulations in reference to animals and live stock. 6 R. C. L. 206, sec. 200; Hawkins v. Hoye, 108 Miss. 282, 66 So. 741. The inspectors of the State Live Stock Sanitary Board, Nolan Anderson and Clarence Ward, working in conjunction with Hugh Rodgers an inspector in Wilkinson county, Mississippi, of the Bureau of Animal Industry of the United States, followed the procedure laid down by the legislature cited above to the letter of the law, as shown by this record. The legislature had the authority under its police power to pass a regulation for the prevention of the spread of this contagious disease among livestock in the interest of public good, and this regulation does not violate the Constitution of the state of Mississippi. State v. J. J. Newman Lbr. Co., 102 Miss. 802; Abbot v. State, 106 Miss. 340; Bailey v. Van Pelt (Fla.), 82 So. 789; Whitaker, Sheriff, v. Parsons (Fla.), 86 So. 247; Gorieb v. Fox, 134 S.E. 914.

Argued orally by P. M. Stockett, for appellant.

OPINION

ETHRIDGE, P.J.

The appellant, D'Aquilla, filed a suit against the appellees, alleging that on or about the 13th of November, 1926, the defendants did by force of arms, and without his consent, enter his inclosed premises at Ft. Adams, in Wilkinson county, and tie and take away a calf, the property of plaintiff, valued at ten dollars; the said trespass being willful and wanton, and without authority of law, and defendants thereafter failed and refused to return the calf so illegally taken away; by reason of which trespass and conversion of the property of plaintiff the latter has been damaged in the sum of five hundred dollars.

The defendants pleaded the general issue, and gave notice thereunder that on the trial of the cause they would introduce evidence to prove that Anderson and Clarence Ward were commissioned by the state live stock sanitary board as range riders, and that they were officers of the law in tick eradication work in the county; that Hugh Rodgers was commissioned by the Federal Bureau of Animal Industry as an agent and officer of the law to enforce the rules of the state live stock sanitary board in tick eradication work; that the plaintiff was duly notified to dip all his cattle, horses, mules, jacks, and jennets; that he failed and refused to dip the calf, and the defendants, under and by authority of the law, took possession of said calf, dipped and quarantined it, and placed it in the custody of the sheriff, who sold it for ten dollars, for its feed and care, under the law; and there is now due the sheriff a balance of three dollars seventy-five cents for care of the calf.

On the trial of the case, the defendant Rodgers was asked, on cross-examination:

"Q. Did you have any papers of any kind? A. Only my commission as a livestock inspector."

He was also asked:

"Q. Who authorized you to go in that lot? A. My commission by the livestock sanitary board."

Anderson testified to like effect, and introduced his commission from the live stock sanitary board, as live stock inspector, as authority for their entry into the lot of the plaintiff, the taking therefrom the calf, over his objections, and without his knowledge and consent, dipping the same, and turning it over to the sheriff. We quote the following from the commission, relied upon as authority for this entry and taking of the calf:

"This certifies that Mr. Nolan Anderson, Woodville, Mississippi, has been this day commissioned as a livestock inspector for the state of Mississippi, in accordance with section Three, House Bill 206, Laws of 1926, and is hereby authorized and empowered to enter premises to inspect and disinfect livestock and premises and enforce quarantine, including counties, farms, pens, stables and other premises. In witness thereof the said state Livestock Sanitary Board has caused this commission to be signed by its duly authorized executive officer and to be sealed with its seal this first of May, 1926.

"[Signed] R. V. Rafnel; and the seal of the Livestock Sanitary Board."

The testimony further shows that, when the calf was taken from the lot, the plaintiff claimed to the officers that the calf had been exempted, and offered to dip it himself if they would let him do so; but they refused to do so, dipped it themselves, and refused to turn it over to him unless he paid a charge of eight dollars for their dipping of the calf. With reference to this expense, the witness stated:

"Q. What were the expenses? A. Eight dollars.

"Q. How did you arrive at the amount? A. Three of us at one hundred forty dollars per month, and I figured that eight dollars would not quite cover it all, but we had another cow.

"Q. How did you arrive at eight dollars? A. I figured at sixteen dollars, and eight dollars was half of it.

"Q. Did you collect for the other cow? A. Nobody claimed it.

"Q. On what legal basis did you charge your fees? A. According to what we were getting paid.

"Q. According to your salary? A. Yes, sir."

There was a peremptory instruction for defendants in the court below, from which this appeal is prosecuted.

There was no introduction of any ordinance or rule or regulation of the livestock sanitary board in evidence, and, as stated above, there were no legal papers of any kind taken out by the officer to secure possession of the calf, but, without any such writ or papers, the defendants went...