Kemmish v. Ball

• Decision Date: 01 January 1887
• Parties: KEMMISH v. BALL and others.
• Court: U.S. District Court — Southern District of Iowa

30 F. 759

KEMMISH v. BALL and others.

United States Circuit Court, S.D. Iowa, Western Division.

March Term, 1887

S. H Cochran and Flickinger Bros., for plaintiff.

Sapp &amp Pusey, for defendants.

SHIRAS J.

In the amended petition filed in this cause it is averred that in 1885 the defendants were the owners of a herd of Texas cattle, having purchased the same at or near Ft. Smith, in the state of Arkansas; that said cattle were affected with a dangerous and contagious disease known as 'Texas cattle fever;' that defendants well knew that such cattle had such disease, and that the same would be readily communicated to other cattle brought into contact with the diseased cattle, or upon the places or pastures where the latter might be driven; that the defendants with such knowledge, did willfully, wrongfully, and in violation of the provisions of section 4059 of the Code of Iowa, on or about June 1, 1885, drive said herd of infected cattle from the state of Arkansas into Union township Harrison county, Iowa, and turned the same loose upon the range and commons in said township, upon which plaintiff's native cattle then were, and thereby said disease was communicated to plaintiff's cattle, causing the death of a number thereof; and for the damages thus caused plaintiff prays judgment.

Sections 4058 and 4059 of the Code of Iowa, in force in 1885, were as follows:

'Sec. 4058. If any person bring into this state any Texas cattle, he shall be fined not exceeding $1,000, or imprisoned in the county jail not exceeding 30 days, unless they have been wintered at lease one winter north of the southern boundary of the state of Missouri or Kansas, provided that nothing herein contained shall be construed to prevent or make unlawful the transportation of such cattle through this state on railways, or to prohibit the driving through any part of the state, or having in possession any Texas cattle between the first day of November and the first day of April following.

'Sec. 4059. If any person now or hereafter has in his possession in this state any such Texas cattle, he shall be liable for any damages that may accrue from allowing said cattle to run at large, and thereby spreading the disease among other cattle known as the Texas fever, and shall be punished as is prescribed in the preceding section.'

By an act of the legislature approved April 10, 1885, these sections were expressly repealed, and substitutes therefor were enacted.

On behalf of defendants, it is claimed that the repeal of section 4059, without any saving clause in the repealing act terminates the right to recover under its provisions, the section being penal in its nature. Section 45 of the Code provides that in the construction of the statutes it is the rule that 'the repeal of a statute does not revive a statute previously repealed, nor affect any right which has accrued, any duty imposed, any penalty incurred, or any proceeding commenced, under or by virtue of the statute repealed. ' Under the provisions of this section, the...