Ex Parte Leslie, (No. 5852.)

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtMorrow
Citation223 S.W. 227
PartiesEx Parte LESLIE.
Docket Number(No. 5852.)
Decision Date09 June 1920

Page 227

223 S.W. 227
Ex Parte LESLIE.
(No. 5852.)
Court of Criminal Appeals of Texas.
June 9, 1920.

Appeal from Milam County Court; W. G. Gillis, Judge.

Application for habeas corpus on behalf of J. M. Leslie. From a denial of relator's application, he appeals. Judgment reversed, and relator released.

W. A. Morrison and Robert M. Lyles, both of Cameron, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

MORROW, J.


The relator sought in the county court of Milam county discharge from custody, and appeals from the order remanding him to the custody of the sheriff. His prosecution is under section 15 of the Acts of the 35th Legislature, chapter 60 (Vernon's Ann. Pen. Code Supp. 1918, art. 1284k), as follows:

"Any person, company, or corporation owning, controlling or caring for any domestic animal or animals, which are located in any territory quarantined through the provisions of this act, or by the order of the live stock sanitary commission of Texas, who shall refuse or fail to dip or otherwise treat such live stock at such time and in such manner as directed in writing by the live stock sanitary commission, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than twenty-five dollars nor more than one hundred dollars, and each day of such failure or refusal shall be a separate offense."

The complaint charges failure to dip his cattle, and contains the following:

"And that said cattle were then and there located in territory quarantined under the provisions of law by virtue of an order of the live stock sanitary commission of Texas, as promulgated and proclaimed by proclamation No. 17 by the Governor of the state of Texas, to wit, Milam county, Texas; that said live stock sanitary commission did direct said J. M. Leslie in writing on the 27th day of March, A. D. 1920, to dip said cattle on the 29th day of March, A. D. 1920, between the hours of 7 o'clock a. m. and 1 o'clock p. m."

The object of the act in question is the prevention of disease to cattle, and one of the means recognized therein is the eradication of fever ticks. Power is conferred upon the live stock sanitary commission of Texas—

"to make and promulgate rules and regulations * * * and the live stock sanitary commission of Texas shall give notice of such rules and regulations by proclamation issued by the Governor of Texas." Vernon's Ann. Civ. St. Supp. 1918, art. 7314.

Judicial sanction has often been given to the exercise of the power to, by law, prescribe the punishment for the violation of the regulations of a board or commission, upon the theory that, observing proper limitations, such an act is not obnoxious to the principle denying to the Legislature the power to delegate its authority. U. S. v. Grimaud, 220 U. S. 506, 31 Sup. Ct. 480, 55 L. Ed. 563; State v. Railway, 56 Fla. 617, 47 South. 969, 32 L. R. A. (N. S.) 651; U. S. v. L. & N. Ry. (D. C.) 176 Fed. 942; Whaley v. State, 168 Ala. 152, 52 South. 941, 30 L. R. A. (N. S.) 499; Kansas v. Crawford, 104 Kan. 141, 177 Pac. 360, 2 A. L. R. 880; Jannin v. State, 42 Tex. Cr. R. 631, 51 S. W. 1126, 62 S. W. 419, 53 L. R. A. 349, 96 Am. St. Rep. 821; Ruling Case Law, vol. 6, p. 183. The relator insists, however, that, if the soundness of this principle be conceded, the act in question is faulty in failing to define the powers conferred, and that the rules promulgated are not authorized by the Legislature, and are such as would not be within its power.

The power to make laws is placed by the people, through the Constitution, upon the Legislature. The rights of individuals

Page 228

are guarded by restrictions touching the enactment and publication of laws, and the privilege is afforded of presenting by petition or appearance before the legislative committees opposition to proposed enactments affecting the property or the liberty of the citizen. A completed law, if penal in its effect, must define the act or omission denounced as criminal with some degree of certainty. Penal Code, art. 6; Augustine v. State, 41 Tex. Cr. R. 59, 52 S. W. 77, 96 Am. St. Rep. 765; Sogdell v. State, 81 Tex. Cr. R. 66, 193 S. W. 675; Griffin v. State, 218 S. W. 494; Railway v. State, 100 Tex. 420, 100 S. W. 766. And if by the law one is, as in the present case, commanded to do some affirmative act, due process of law requires that he be given reasonable notice as a predicate to his punishment for failure to comply with the demands. Taylor's Due Process of Law, p. 286, § 132; Railway v. State, 100 Tex. 424, 100 S. W. 766; Ekern v. McGovern, 154 Wis. 157, 142 N. W. 595, 46 L. R. A. (N. S.) 841. In conferring upon an instrument of government, such as the live stock sanitary commission, the power to make rules, the nonobservance of which constitutes a criminal offense, it is deemed necessary that the Legislature define the power and place limitations upon the authority to promulgate rules, to the end that they may not be lacking in the essential elements of a law denouncing an offense.

The law prescribes that one who "shall * * * fail to dip or otherwise treat such live stock at such time and in such manner as directed in writing by the live stock sanitary commission shall be deemed guilty," and says that the commission shall give notice of the rules promulgated "by proclamation issued by the Governor." It is silent touching the contents of the notice in writing which it requires shall be given, and the proclamation is likewise silent. The charge is made in the information that on the 27th day of March the relator was ordered in writing...

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26 practice notes
  • State v. Rhine, No. PD-0912-08.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 23, 2009
    ...Crim. 152, 15 S.W.2d 650 (Tex.Crim.App. 1929); Land v. State, 581 S.W.2d 672 (Tex. Crim.App.1979); Ex parte Leslie, 87 Tex. Crim. 476, 223 S.W. 227 (Tex.Crim.App. 1920). See also Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454 (Tex.1997). As this Court stated in Land v......
  • Texas Boll Weevil Eradication Foundation, Inc. v. Lewellen, Nos. 96-0745
    • United States
    • Supreme Court of Texas
    • October 9, 1997
    ...violation of the separation of powers section (Art. 2, § 1) of the Constitution. 480 S.W.2d at 372. In Ex parte Leslie, 87 Tex.Crim. 476, 223 S.W. 227 (1920), the Court of Criminal Appeals invalidated a statute empowering the Live Stock Commission to create a penal offense for failing to di......
  • Rowland v. State, No. 28357
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • January 30, 1957
    ...137] v. State, 108 Tex.Cr.R. 147, 300 S.W. 64; Dockery v. State, 93 Tex.Cr.R. 220, 247 S.W.2d 508; Ex Parte Leslie, 87 Tex.Cr.R. 476, 223 S.W. 227; Overt v. State, 97 Tex.Cr.R. 202, 260 S.W. 856; Ex parte Wilmoth, 125 Tex.Cr.R. 274, 67 S.W.2d The correctness of the holding in those cases ha......
  • Railroad Commission v. Shell Oil Co., No. 7928.
    • United States
    • Supreme Court of Texas
    • March 11, 1942
    ...1064, 30 L.Ed. 220." See also City of Dallas v. Urbish, 252 S.W. 258, 259, par. 2. In the case of Ex parte Leslie, 87 Tex. Cr.R. 476, 223 S.W. 227, 229, the Court of Criminal Appeals had under consideration the validity of a proclamation of the Live Stock Commission which required the stock......
  • Request a trial to view additional results
26 cases
  • State v. Rhine, No. PD-0912-08.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 23, 2009
    ...Crim. 152, 15 S.W.2d 650 (Tex.Crim.App. 1929); Land v. State, 581 S.W.2d 672 (Tex. Crim.App.1979); Ex parte Leslie, 87 Tex. Crim. 476, 223 S.W. 227 (Tex.Crim.App. 1920). See also Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454 (Tex.1997). As this Court stated in Land v......
  • Texas Boll Weevil Eradication Foundation, Inc. v. Lewellen, Nos. 96-0745
    • United States
    • Supreme Court of Texas
    • October 9, 1997
    ...violation of the separation of powers section (Art. 2, § 1) of the Constitution. 480 S.W.2d at 372. In Ex parte Leslie, 87 Tex.Crim. 476, 223 S.W. 227 (1920), the Court of Criminal Appeals invalidated a statute empowering the Live Stock Commission to create a penal offense for failing to di......
  • Rowland v. State, No. 28357
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • January 30, 1957
    ...137] v. State, 108 Tex.Cr.R. 147, 300 S.W. 64; Dockery v. State, 93 Tex.Cr.R. 220, 247 S.W.2d 508; Ex Parte Leslie, 87 Tex.Cr.R. 476, 223 S.W. 227; Overt v. State, 97 Tex.Cr.R. 202, 260 S.W. 856; Ex parte Wilmoth, 125 Tex.Cr.R. 274, 67 S.W.2d The correctness of the holding in those cases ha......
  • Railroad Commission v. Shell Oil Co., No. 7928.
    • United States
    • Supreme Court of Texas
    • March 11, 1942
    ...1064, 30 L.Ed. 220." See also City of Dallas v. Urbish, 252 S.W. 258, 259, par. 2. In the case of Ex parte Leslie, 87 Tex. Cr.R. 476, 223 S.W. 227, 229, the Court of Criminal Appeals had under consideration the validity of a proclamation of the Live Stock Commission which required the stock......
  • Request a trial to view additional results

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