McMillan v. Live Stock Sanitary Board

• Decision Date: 31 March 1919
• Docket Number: 20616
• Citation: 81 So. 169,119 Miss. 500
• Court: Mississippi Supreme Court
• Parties: MCMILLAN v. LIVE STOCK SANITARY BOARD

81 So. 169

119 Miss. 500

MCMILLAN v. LIVE STOCK SANITARY BOARD

No. 20616

Supreme Court of Mississippi

March 31, 1919

Division B

[81 So 169, Division B.]

1 INJUNCTION. Offenses. Order of live stock sanitary board. Dipping cattle.

The legislature has the power to confer on the chancery court jurisdiction to enforce by injunction the lawful orders of the live stock sanitary board.

2 INJUNCTION. Offenses. Dipping of cattle. Enforcement by injunction. Laws 1916, chapter 167, making it the owner's duty to dip his live stock when so ordered by the inspector and making it a crime to fail to do so, also confer upon the chancery court the power to compel obedience to such lawful orders by mandamus, injunction or any other appropriate remedy.

3. DIPPING OF CATTLE. Statutes. Repeal.

Laws 1916, chapter 167, was not repealed by Laws 1918, chapter 221. The last-named act of the legislature is merely supplementary, to meet the conditions not mentioned in the laws of 1916.

HON. W. M. DENNY, JR., Chancellor.

APPEAL from the chancery court of Stone county, HON. W. M. DENNY, JR., Chancellor.

Bill by Live Stock Sanitary Board against Peter McMillan to enjoin defendant from violating orders of the board. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Mize & Mize and E. R. Davis, for appellant.

The bill in this case was drawn to compel appellant to obey the laws and to restrain him from committing a crime. The first contention of appellant is that equity is without jurisdiction of a case of this character, because it is enjoining him from committing a crime, and deprives him of the right to a trial by the jury which is guaranteed him and every one charged with committing a crime by the Constitution of the United States and state, since when appellant violates the law in question, he thereby commits a crime for which there is a complete and adequate remedy at law.

In "Re Debbs," 158 U.S. 564, the supreme court said: "The difference between a public nuisance and a private nuisance is that one affects the public at large and the other only the individual. The quality of the wrong is that courts over them rests upon the same principle and to the same extent . . . Again, it is objected, it is outside the jurisdiction of a court of equity to enjoin the commission of crimes. This, as a general proposition, is unquestioned. A chancellor has no criminal jurisdiction; something more than a threatened commission of an offense against the law of the land is necessary to call into exercise the injunctive powers of the court. There must be some interference, actual or threatened, with property or rights of a pecuniary nature, but when such interferences appear, the jurisdiction of a court of equity arises, and is not destroyed by the fact that they were accompanied by, or are themselves, violations of the criminal law."

In that case, there was a strike in Chicago, in which a great number of strikers were congregated together and were interfering with interstate mail and traffic, a case wherein it can be readily seen that the law courts were unable to handle the matter; great throngs of people congregating and conspiring together and interfering with interstate mail and traffic; and the court in that case properly granted an injunction on the ground that it was an interference with public rights of property of a pecuniary nature. But in the instant case there is only one man involved, who the bill alleges refused to dip his cattle; and the act in question has given the courts ample power to fine and imprison him if he violates the act. The bill shows that he has been prosecuted and was still being prosecuted in the criminal courts, and that a case was then pending against him in the circuit court of Stone county carried there by appeal.

The case of State v. Vaughan, et al., 81 Ark. 117, was a case where a bill was filed to enjoin the running of a pool room and gaming house near the city of Little Rock in which betting on horses was participated in. The bill was brought by the attorney-general of Arkansas together with the prosecuting attorney of the six judicial circuit and the mayor of Little Rock. The court refused to grant the injunction. In that case, it was shown that the defendant was daily violating the criminal law. The court said: "Applying these principles, it is seen that the admissions of the answer prove forth to have been daily violating the criminal law, but there is an absence of any showing that the acts constituting a crime reached to the grounds of any equity jurisdiction;" and in closing said: "Persons charged with crime are entitled to a jury trial and this right must not be taken from them under the guise of an injunction against a nuisance."

In the Vaughan case, supra, there are several decisions cited from other states. So we contend that appellant, if he should violate the act, is entitled to a trial by a jury, which right is guaranteed him by the Constitution, and that this right cannot be taken away from him under the guise of an injunction.

The appellee has a complete and adequate remedy at law, because every time appellant failed or refused to dip his cattle, he can be indicted, and it would then be for a jury to say whether or not he had failed or refused to dip his cattle. If he had, the court can fine and imprison him each and every time he is found to have violated the law. We are therefore unable to see on what theory the chancery court should take jurisdiction, for, as stated by the supreme court of the United States, it should be a very rare and exceptional case where the chancery court should intervene for the enforcement of criminal law. So we submit that for this reason the demurrer should have been sustained.

Our next contention is that the Act of 1916 in question was repealed by chapter 221, Acts of 1918. When this latter Act was passed in March, 1918, it was provided that it should take effect from and after August 1, 1918. At that time, it was generally understood by the public everywhere that the state was practically free of cattle ticks and that the quarantine should be lifted from all over the state, and some kind of a public meeting was called and held in the city of Jackson, Mississippi, celebrating this event; but, in order to prevent the returning of the tick, the legislature passed chapter 221, Acts of 1918, which provides that any person owning cattle infested with the fever tick should not allow such animal to run at large on the open range, and that such cattle should be confined separate from other cattle and should be dipped; and provided that it should be the duty of any inspector commissioned by the live stock sanitary board or any citizen of the country, to notify the owner of any cattle having ticks on them that were running at large, and if the owner failed to confine the cattle and dip them as provided by the said act, it should be the duty of the inspector to cause the animals to be dipped and to prosecute the person who failed or refused to confine and dip such infested cattle and while the legislature did not in specific language repeal the Act of 1916, yet clearly it was the intention of said Act of 1918 so to do and to provide at the same time for the confinement and dipping of cattle that were actually infested.

A statute may be repealed, and frequently is by implication, and where a later act takes hold of the entire subject-matter and deals with it fully, then all prior acts on said subject-matter are thereby appealed by implication. State v. Jenkins, 73 Miss. 525. In this case, the laws on the subject of cattle ticks and dipping which has been prominent before the people of the state of Mississippi for several years, and which was an excellent law, but which had about served its purpose in 1918, and was an unpopular law with a good many people, was taken hold of by the legislature of 1918, and the Act of 1918, chapter 221, was passed, dealing with the entire subject fully and thereby repealing the former act by implication. 26 American & English Ency. of Law (2 Ed.), p. 731 lays down this rule: So we submit that the said 1918 Act repealed the 1916 Act, and the bill of complaint herein being drawn under the 1916 Act, fails to allege that appellant's cattle were infested with ticks, and therefore the demurrer to the bill should have been sustained.

The state being practically free of ticks in 1918 there was no necessity for the longer and continued use of state wide dipping; it was only necessary that wherever a person's cattle were found to be infested with ticks, he should be and was required to confine said cattle and to dip them until they were found to be free of ticks, and for failure to comply with this act it was the duty of the inspector to prosecute the owner who failed or refused to comply therewith.

We therefore respectfully submit that the...