Moss v. Mississippi Live Stock Sanitary Board

• Decision Date: 27 May 1929
• Docket Number: 27739
• Citation: 154 Miss. 765,122 So. 776
• Court: Mississippi Supreme Court
• Parties: Moss et al. v. MISSISSIPPI LIVE STOCK SANITARY BOARD

122 So. 776

154 Miss. 765

Moss et al. v. MISSISSIPPI LIVE STOCK SANITARY BOARD

No. 27739

Supreme Court of Mississippi

May 27, 1929

Division A

1 EVIDENCE. Judicial cognizance is taken that Texas cattle tick and resulting fever are menace, and that certain counties are quarantined because live stock are infested.

Supreme court takes judicial cognizance of fact that Texas cattle tick (Margaropus annulatus) and fever resulting therefrom are regarded as menace, and that certain counties against which balance of United States is quarantined, are so quarantined because live stock are infested with such peculiar kind of tick.

2 ANIMALS. Constitutional law. Law creating live stock sanitary board to quarantine and treat animals for eradication of Texas cattle fever tick held within police power and not violative of the state Constitution and Fourteenth Amendment (Laws 1926, chapters 263, 264, 265, with amendment to section 3 of chapter 264 by Laws 1928, chapter 61; Constitution United States Amendment 14).

Laws 1926, chapters 263, 264, and 265, with amendment to section 3 of chapter 264 by Laws 1928, chapter 61, creating live stock sanitary board for purpose of quarantining and treating animals within infested area, with ultimate purpose of completing eradication of Texas cattle fever tick, held within police power, and not In violation of Constitution, United States Amendment 14, or of state Constitution, in so far as delegation of power and restriction of liberty of citizen In dealing with property is dealt with.

3. CONSTITUTIONAL LAW. Large discretion is lodged in legislative branch to decide necessary measures to protect public interest.

Very large and broad discretion is lodged in legislative branch of government to decide what measures are necessary to protect public interest; general welfare of commonwealth being chief concern of legislature.

4. ANIMALS. Regulation requiring owners to carry live stock distance varying from three and nine-tenths to five and seven-tenths miles to have them inspected and dipped, held not unreasonable (Laws 1926, chapters 263, 264, and 265, with amendment to section 3 of chapter 264 by Laws 1928, chapter 61).

Regulations of live stock sanitary board, in accordance with Laws 1926, chapters 263, 264, and 265, with amendment to section 3 of chapter 264 by Laws 1928, chapter 61, requiring owners of live stock to carry stock distance varying from three and nine-tenths to five and seven-tenths miles for purpose of having them inspected and dipped, held not unreasonable regulation.

5. ANIMALS. Possibility that live stock dipped for eradication of cattle tick might die did not prevent enforcement of regulation (Hemingway's Code 1927, section 4121).

Possibility that animals dipped in solution composed of arsenic might die by reason thereof did not prevent enforcement of regulations by live stock sanitary board for purpose of eradicating Texas cattle fever tick, in view of provision of Hemingway's Code 1927, section 4121 (Laws 1917, chapter 38), for recovery of reasonable compensation for death of live stock killed or permanently injured as result of dipping or eradication.

6. EVIDENCE. It is common knowledge that crops have advanced well toward safe period on July 5.

It is matter of common knowledge, particularly in South Mississippi, that crops have advanced well toward safe period on July 5, and that farmers whose crops are in urgent need of labor on July 19 and 26 are exceptions.

7. INJUNCTION. Live stock owners cannot invoke aid of equity to enable them to disregard regulations for clipping stock merely because of threatening invasion of Constitutional right (Constitution 1890, section 23; Laws 1926, chapter 264, section 3, as amended by Laws 1928, chapter 61).

Owners of live stock cannot invoke aid of equity to enable them to continue to disregard and violate regulations requiring them to dip animals for purpose of eradicating Texas cattle fever tick merely because of threatened invasion of rights under Constitution 1890, section 23, by reason of provision of Laws 1926, chapter 264, section 3, as amended by Laws 1928, chapter 61, authorizing inspectors and range riders to enter premises of those living within quarantined area and inspect live stock therein.

8. EQUITY. One seeking equity must do equity and come into court with clean hands.

He who seeks equity must do equity, and must come into court with clean hands, and, in case party has violated conscience or good faith or other equitable principle in his prior conduct, doors of court will be shut against him.

9. EQUITY. Live stock owners violating law requiring dipping of animals to eradicate cattle fever tick were not entitled to protection of equity (Laws 1926, chapter 265, section 11).

Owners of live stock who were guilty of misdemeanor under Laws 1926, chapter 265, section 11, by reason of failing to obey regulations of live stock sanitary board requiring dipping of animals for eradication of Texas cattle fever tick, held not entitled to protection of equity, since they could not refuse to obey plain mandate of law and then invoke equity's assistance.

ON SUGGESTION OF ERROR.

Suggestion of Error Overruled June 10, 1929.

APPEAL from chancery court of Jasper county.

HON. G. C. TANN, Chancellor.

Suit by B. L. Moss and others against the Mississippi Live Stock Sanitary Board. Decree of dismissal, and complainants appeal. Affirmed.

Affirmed. Suggestion of error overruled.

Ellis B. Cooper and Collins & Collins, all of Laurel, for appellants.

The live stock sanitary board and their range riders and other officers have no right to go upon the premises of individuals and citizens and take their live stock for the purpose of dipping them without process of the courts.

Frank D'Aquilla v. Nolan Anderson et al., case No. 27,591, not yet reported.

A public officer may also be enjoined from resorting to criminal procedure to enforce illegal demands.

14 R. C. L. 431, sec. 132; Ex parte Young, 209 U.S. 123; Phil. Co. v. Stinston, 223 U.S. 605, 32 S.Ct. 340; 56 L.Ed. 570; 14 R. C. L., 133, page 432; 14 R. C. L., sec. 136, page 434.

Orders of the Mississippi live stock sanitary board cannot be enforced where unreasonable.

Wilson v. Alabama Great Southern R. Co., 28 So. 567; Town of Kosciusko v. Slomberg, 68 Miss. 469, 9 So. 297, 12 L. R. A. 528; In re Smith, 146 N.Y. 68, 40 N.E. 497, 28 L. R. A. 820; Hurst v. Warner (Mich.), 26 L. R. A. 484; State v. Burdge (Wis.), 70 N.W. 351, 37 L. R. A. 162.

In the enactment and enforcement of tick eradication laws, the property rights of the individual should not be destroyed nor invaded without due process of law.

Byrd v. Welch et al., 91 So. 568.

Robt. L. Bullard, of Hattiesburg, for appellee.

Courts of equity do not interfere to accommodate mere apprehension of injury.

Sec. 436, Griffith's Chancery Practice; Edgell v. Clark, 76 Miss. 66.

The legislature has authority to authorize the entry of premises in cases of quarantine, the prevention of infectious diseases and measures necessary to conserve the public health. It is everywhere held that in dealing with these subjects legislatures have broad powers.

8 Cyc. 868.

MCGOWEN, J. SMITH, C. J.

OPINION

MCGOWEN, J.

The appellants, B. L. Moss and seven other farmers residing in Jones and Jasper counties, exhibited their bill in the chancery court of Jasper county against the Mississippi live stock sanitary board and the officers thereof, praying for a temporary injunction restraining appellee from in any way interfering with appellants' live stock, and restraining and enjoining appellee from undertaking to trespass upon appellants' premises for the purpose of inspecting and dipping their live stock, and from in any way interfering with appellants' liberty and their right to full and complete enjoyment of their live stock, and to enjoin appellee from enforcing the rules and regulations, and requiring appellants to carry their cattle and live stock to the dipping vats at Stringer, or to any other place, at unreasonable times and unreasonable distances.

A temporary injunction was directed to be issued as prayed for, and, by agreement of the parties, the cause came on to be heard in vacation. Proof was taken on the issue presented by the bill on the merits, and the injunction was dissolved; five hundred dollars attorney fees were assessed against the appellants as damages for the wrongful suing out of the injunction; and the bill was finally dismissed, hence this appeal.

The bill alleged that appellants were property owners in Jones and Jasper counties, owning real estate in Jasper county upon which they kept mules, horses, and cattle; that Moss was the owner of eighteen head of mules which he used in farming every day, plowing and cultivating crops; that at that season of the year his mules were very necessary in carrying on his business of farming; that it was a busy farming season when the bill was filed, July 3, 1927, requiring the cultivation of crops every day, and that one omitted day in the cultivation of said crops would entail great loss; that the said Moss cared for his mules, kept them free of ticks and other vermin; that his mules were no menace to any one in the way of conveying any kind of contagious or infectious diseases or spreading the cattle or tick fever in Mississippi, and that his mules were used by him in and about his farm work.

It was further alleged in the bill that the live stock sanitary board was engaged in undertaking to eradicate the Texas fever tick from Mississippi under chapter 264, Laws of 1926; that appellee had built dipping vats in Jasper county filled with an arsenical solution very poisonous in its nature and dangerous to live stock, unless weather...