Abbott v. State

63 So. 667 | Miss. | 1913

Cook, J.,

delivered the opinion of the court.

This case could be easily and summarily disposed of; but, as we are requested to pass on the validity of one of the most important statutes passed by the legislature in recent years, we deem it our duty to go fully into the questions presentéd for our consideration in this record.

By chapter 106, Laws of Mississippi 1908, entitled “An act creating a live stock sanitary board, specifying who shall constitute the same, fixing compensation for services of the members, delegating powers and authority for regulating live stock matters and the right to establish and maintain quarantine lines, prevent the introduction and spread of the Texas or tick fever, appoint inspectors and officers for the enforcement of regulations,” the legislative department has inaugurated a movement to rid the state of the cattle tick, now known to be the greatest enemy of stock raisers, and it seems to be the duty of this court to lend its assistance to all proper efforts to serve the material interests of the people of the state.

The validity of the statute in question arises in this case by the conviction of appellant for an alleged violation of the rules and regulations of the Mississippi Live Stock Board, and the affidavit upon which he was tried is in -the following words: “The state of Mississippi, Jefferson county. Personally appeared before the undersigned justice of the peace in and for said county, for the first justice district thereof, W. C. Bailey, who makes oath that T. W. Abbott did, in the county aforesaid and in said justice district, on or about the 26th day of July, A. D. 1912, while, owning and having cattle in that portion of Jefferson county and in said district, which was quarantined as having a contagious and infectious disease known as Texas or fever-carrying tick, under the rules and regulations of the state sanitary board of Mississippi, did willfully and unlawfully fail and refuse to dip in a standard dipping vat his said cattle, infected with or exposed to the infection of the Texas or fever-carrying tick, according to the rules and regulations of the Mississippi Live Stock Board, after having been duly and legally served with a notice by a state live stock inspector, so to do, against the .peace and dignity of the state of Mississippi. ’ ’

So far as the rights 'of appellant are concerned, it is only necessary to determine whether the affidavit charges any offense known to the laws of the state, and to solve this question it is necessary to consider and construe chapter 106 of the Laws of 1908. The first two sections of this act provide for a state live stock and sanitary board, and for the official headquarters of the board. Sections 3, 4, 5, and 6 read this way:

“Sec. 3. That said board shall have plenary power to deal with all contagious and infectious diseases of animals as in the opinion of the board may be prevented, controlled or eradicated, and with full power to make, promulgate and enforce such rules and regulations as in the judgment of the board may be necessary to control, eradicate and prevent the introduction and spread of Texas or tick fever and the fever7carrying tick (boophi-lus annulatus), and all other disease of animals in the state.

“Sec. 4. That any person, firm or corporation violating any of the provisions of this act or interfering with any duly appointed officer of said board, shall be guilty of a misdemeanor and fined upon conviction thereof not less than fifty dollars and not more than three hundred dollars, and shall also be liable to any person injured for any and all damages resulting from such violations.

‘ ‘ Sec. 5. That any person, firm or corporation driving, conveying or transporting from any other state or territory into or through this state, or moving within this state, animals known to be infested with the infection of a contagious or communicable disease, contrary to the rules and regulations of this board, shall be guilty of a misdemeanor and upon conviction thereof subject to a fine of not more than five hundred dollars or imprisonment in the county jail not to exceed six months or both at the discretion of the court.

“Sec. 6. That this board be, and the same is hereby, vested with full authority to establish and maintain quarantine lines and to appoint as many inspectors as may be deemed necessary and the funds at its disposal will permit, and to delegate authority to said inspectors to enter premises, to inspect and disinfect live stock and premises, and enforce quarantine including counties, farms, pens, and stables.”

It will be observed that section 3 invests the board with “plenary power to deal with all contagious and infectious diseases of animals,” and with “full power to make, promulgate and enforce such rules and regulations” as in the judgment of the board “may be necessary to control, eradicate and prevent the introduction and spread” of the tick fever and fever-carrying tick. Section 4 prescribes the penalty for the violation of “this act,” and also gives to any person injured by violations of the law a right of action for damages against the wrongdoer. Section 5 provides a penalty for bringing infected cattle into the state, or for moving cattle from one point in the state to another point in the state.

This defendant was charged with a failure' and refusal to dip his cattle in accordance with the rules and regulations of tlie state live stock board, and therefore section 5 has no application to the offense charged.

Does section 4 provide a penalty for the offense charged against appellant? Were the alleged acts of appellant in violation of chapter 106? These are the questions to be answered by this court.

It seems clear that the legislature may confer upon the live stock board the power to make rules and regulations to prevent the 'introduction- and spread of contagious or infectious diseases of live stock, and in the same act provide penalties for violations of such rules and regulations thereafter to be adopted. In such legislation it is the legislature that makes a violation of the rules and regulations a crime, and not the live stock board that makes the violation thereof a crime. Much authority may be found to the effect that legislation of this character is not a delegation of legislative functions,, but we believe it unnecessary to collate the authorities here. We will, however, briefly discuss a case decided by the supreme court of the United States.

In United States v. Grimaud, 220 U. S. 506, 31 Sup. Ct. 480, 55 L. Ed. 563, Justice Lamab (a name revered in this state) goes into the entire question of the power of the Congress to delegate to administrative officers and boards the power to make rules and regulations, and to provide penalties, in the same act, for violations of such reasonable rules and regula tions' as the administrative officer may thereafter promulgate. In that ease the secretary of Agriculture was authorized by Congress “to regulate the occupancy and use and to preserve the forests from destruction,” and the court through Justice Lamab said: “It is true that there is no act of Congress which, in express terms, declares that it shall be unlawful to graze sheep on a forest reserve. But the statutes from which we have quoted declare that the privilege of using reserves for ‘all proper and lawful pui'poses’ is subject to the proviso that the person so using them shall comply ‘with the .rules and regulations covering said forest reservation.’ The same act makes it an offense to violate those regulations; that is, to use them otherwise than in accordance with the rules established by the secretary.” The act of Congress was held to he beyond criticism.

The rule is thus stated by the supreme court of the United States, in Marshall Field & Co. v. Clark, 143 U. S. 649, 12 Sup. Ct. 495, 36 L. Ed. 294: “The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its action depend. To deny this would he to stop the wheels of government.”

In Ex parte Fritz, 86 Miss. 222, 38 So. 722, 109 Am. St. 700, this court held that the power could be delegated to the board of supervisors to make rules and regulations for the protection of game and fish, and to provide penalties for the violation of such rules. This decision is based on the historical powers conceded to this board, but there is no doubt in that case this c<?urt is committed to a liberal rule 'governing’ the delegation of legislative functions.

. The act under review could have been made more specific in its terms, by prescribing in the broadest language a penalty for any and all violations of the rules and regulation's of the live stock board; and, had that been done, we would be relieved of all difficulty in the instant case. It is contended that it was the intention of the legislature to do this very thing, but we must look to the law itself for the legislative intent, and it is not within the province of the court to write the law — that power rests with the legislative department.

This statute is a penal statute, and must be strictly construed. It may not be impertinent to say that by any rule of construction, whether liberal, or strict, can we find anything therein which penalizes the act the affidavit charges appellant with doing. As before stated, section 5 has no application here, and section 4 penalizes violations of the act itself, and there is nothing in the act requiring persons to dip their cattle. This omission, inadvertent or intentional, is unfortunate from an economical standpoint, which can be corrected by the legislature should the legislature desire to broaden the law on this subject. It follows that appellant has not violated the law as written.

Reversed and dismissed.