Moore v. Cunningham

• Decision Date: 21 February 1921
• Docket Number: 21358
• Citation: 87 So. 112,124 Miss. 537
• Court: Mississippi Supreme Court
• Parties: MOORE v. CUNNINGHAM

87 So. 112

124 Miss. 537

MOORE v. CUNNINGHAM

No. 21358

Supreme Court of Mississippi

February 21, 1921

1. CONSTITUTIONAL LAW. Constitutional provision against local laws does not repeal existing laws.

Section 90, Constitution 1890, which directs that certain matters shall only be provided for by general laws, and, among other things, declares that the legislature shall not pass local laws "relating to stock laws, watercourses, and fences," does not have the retroactive effect of repealing chapter 231 of the Laws of 1882, creating a stock law district in Lowndes county.

2 REPLEVIN. Party, rightfully impounding animals, may recover possession taken from her by force.

Replevin is purely a possessory action, and where, under the provisions of chapter 231, Laws 1882, creating a stock law district, a plaintiff has rightfully taken up and impounded stock which were running at large within said district and were trespassing upon her premises, and where the stock were by force wrongfully taken from plaintiff's possession she may maintain an action of replevin to recover the possession of the stock.

HON THOS. B. CARROLL, Judge.

APPEAL from circuit court of Lowndes county, HON. THOS. B. CARROLL Judge.

Action by Mrs. S. A. Cunningham against E. S. Moore. From a judgment for plaintiff, defendant appeals. Affirmed.

Judgment affirmed.

Jas. Harrison and J. W. Loving, for appellant.

The appellant must submit that the authorities cited by appellee are not authorities on the propositions involved in this litigation, and will give the reasons therefor.

Section 2064, Code 1892; section 2243, Code 1906, and section 4565, Hemingway's Code, are not authority for the reason that this or these sections attempt to make the law directly opposite to that which section 90 of the Constitution expressly prohibits and hence the same is unconstitutional and are void. Nor do we consider that Browning v. Matthews, on the constitutionality of section 2064, Code 1892, or of the local act involved that case or this; that was a litigation involving a local act of 1878 and sections 2060 and 2062 of the Code of 1892, and does not pass upon the question as to the constitutionality of the local act of 1878, or of section 2064 of the Code of 1892. In fact, the question of the constitutionality was not raised before this court or the court below as far as we are able to discern of the said local act, or of the said section 2064, and had such a question been raised, doubtless the decision would have been different. We do not conceive that the question of the constitutionality of the local act of 1882 here involved was raised or passed upon in the case of Anderson v. Locke, 60 Miss. 283, 10 So. 251, but if it had been it would not have been passed on under the Constitution of 1890 as this decision was rendered in 1887. We are unable to agree with counsel for appellee that Chidsey v. Town of Scranton, 70 Miss. 449, 12 So. 545, is not authority on this question, for a local law, enacted before the present constitution was involved, and held invalid and abrogated by the Constitution, and as we understand this opinion, clause involved in that case under said section, which is claimed by appellee's counsel not to be a parenthetic clause, was held in this case to be a parenthetic clause, but even if it was not, to hold otherwise, the court held would render this clause superfluous and without any force whatever, for by the first clause of the paragraph, local, private, and special laws, of the class under consideration, are prohibited. The only effect the clause in parentheses can have is to withdraw exemptions existing under special or local laws, and hence, we must submit that this local act was abrogated by said section 90.

We cannot agree with counsel for appellee that 34 Cyc., page 1390, (111) and Bond v. Griffin, 22 So. 187, and Hill et al. v. Petty, 111 Miss. 665, is applicable to the question as to the special interest in this case. The local act does not give a lien, or the security for a debt, as we understand this act, and hence the kind of special interest existing on the property in the cases cited, and facts in these cases are different from the facts in the case at bar.

In the third section of appellees brief by Messrs Strong and Bush it is stated that Justice CUMMINGS "was not a justice of the peace of supervisors' district in which these cattle were taken up, but he was a justice of the peace in the same stock law district," but this is erroneous; the local act shows that the stock law district is composed of districts four and five, and the declaration itself shows Justice CUMMINGS was in district number two and his own testimony shows the same, as well as all other evidence on this subject in the record. He was not a justice of the peace in districts four and five, and there were other justices of the peace in this stock law district, as admitted and proven in the record and a justice within the district should have been tendered the cattle.

We again respectfully submit that this cause should be reversed and rendered.

J. H. Frierson, for appellee.

We will undertake to answer the objections set out in the appellant's brief. Their first objection, is that the appellee was not entitled to the possession of the property when she replevied them after they had been forcibly taken from her possession by the appellant. Our answer to this is that chapter 231 of the Acts of 1882, gives the right. That act also provided for the payment of fifty cents per head for taking up the cattle and twenty-five cents per day for feeding the cattle and provides that the cattle shall not be turned over to the owner unless these amounts are paid. The act is quoted in full in the transcript, pp. 84-86. We most respectfully submit that the statute gives a claim against the cattle for these amounts and the right of the party who takes them up to retain possession till the amount is paid or turn them over with this lien attached to nearest and most convenient justice of the peace for the enforcement of this lien. The case of May v. Rockett, does not apply at all.

This Act of 1882, has been construed by the supreme court in the case of Anderson v. Locke, 1 So. 251. In that case it was held that the act was constitutional. That case, however, was decided prior to the Constitution of 1890. It is claimed by the appellant that this Act of 1882 was abrogated by subdivision "q" of section 90, Constitution of 1890. Section 90 of the constitution provides that no local, private or special law shall be enacted in certain enumerated cases. Subdivision (q) reads: relating to stock, watercourses and fences. To sustain the contention of appellant that the said Act of 1882 was abrogated, counsel cite the case of Chidsey v. The Town of Scranton, 70 Miss. 449, 12 So. 545. The Chidsey case was on subdivision (k) of section 90, Constitution of 1890, which reads as follows:

(k) Exempting any person from jury, road or other civil duties, and no person shall be exempt therefrom by force of any local or private law. Chidsey claimed exemption from road taxes or duty under an Act of 1886, which declares that the members to the number of fifty of Scranton Fire Company, No. 1, in the town of Scranton, Jackson county, Mississippi, be and are hereby exempt from road taxes or duty.

Counsel for appellant contends that section 90 abrogated all local laws then in operation on all points enumerated in subdivisions under said section 90. The Chidsey case is decided on the clause of subdivision (k) which is in parenthesis and reads: "(and no person shall be exempt therefrom by force of any local or private law.)" In other words this clause in parenthesis was the deciding point in that case.

In reference to the abrogation of the existing local laws at the time of the passage of the Constitution of 1890, we reply that repeals by implication are not favored. This proposition of law is so well established that citation is not necessary. Furthermore section 4565 of Hemingway's Code, section 2243 of the Code of 1906, which is the last section under chapter under fences and stock laws, reads as follows:

"Crops without fences or with certain kind of fences shall remain in force until altered, amended, repealed on petition or vote under provisions of this chapter. In the case of Browning v. Matthews, Sheriff, 18 So. 658, the court passed on an Act of 1878, which was a local act providing a scheme whereby any part or the whole of the counties of Monroe, Clay, Chicasaw, Oktibbeha, Lowndes, Panola, LaFayette, De Soto and Copiah, might be put into stock law districts. That case was before the supreme court in 1895 and gives no intimation that either the court or the counsel in the case had any idea that section 90 of the Constitution of 1890 had abrogated or repealed any local stock law."

Counsel for the appellant claimed that the demurrer should have been sustained because the declaration did not make any allegations that would entitle the appellee to the immediate possession of the cattle. The declaration alleges, plaintiff further avers that she has a special interest in said cattle to the extent of one thousand twenty-nine dollars and that she is entitled to the immediate possession of the same.

Counsel for appellant next contends that the appellee failed to comply with the act, chapter 231 of the Acts of 1882; they say the act provides that the cattle shall be taken to the nearest and most convenient justice of the peace within five days. Counsel have misquoted the act; it provides that the owner of the cattle shall be notified without delay and if the owner shall not, within five days from the time such notice be given or diligent inquiry made, pay the amount etc., the animal shall be...