77 So. 796 | Miss. | 1917
delivered the opinion of the court.
A. N. Horton, a citizen of Lincoln county, filed a suit in the justice court of district 1 of said county against the board of supervisors for damages for dipping a cow in April, 1917. The declaration is in the following words:
“Comes plaintiff, resident citizen of Lincoln county, Miss., and complains of Lincoln county, and states the cause of action: That in April, 1917, he was compelled under the law of the state of Mississippi to dip a cow. That when the cow was dipped, she got some of the mixture in which she was dipped in her mouth and swallowed it, which caused her death' in a few days thereafter. Said cow being the property of this plaintiff. That the drinking and the swallowing of the said mixture was due to the negligence and carelessness of the inspector under whose direction the said cow was dipped. Said inspector was duly appointed as provided*820 by law. Said claim was properly filed before tbe board of supervisors of Lincoln ' county, Mississippi, in, accordance with law, and was by said board disallowed. That tbe cow was a valuable one, and was worth fifty-five dollars. Plaintiff, therefore, sues and demands judgment for the sum of fifty-five dollars and all cost of this suit.”
The judgment of the justice court was for the plaintiff, and was appealed to the circuit court. In the circuit court the county interposed a demurrer on the following grounds: First, the declaration states no cause of action; second, the plaintiff cannot recover in this case because the county is not liable as a matter of law; and, third, the matter of payment of cattle injured or killed by dipping is discretionary with the. board of supervisors, and the claim shows on its face that the board of supervisors had disallowed it, and the claim cannot be sustained. The court below sustained the demurrer, and the plaintiff appeals here.
The plaintiff relies upon chapter 222 of the Laws of 1914. Section 1 of this act provides that the board of supervisors of any county in this state in which the dipping of cattle for the eradication of the cattle tick has been conducted under the authority of the board of supervisors, and in eases where cattle are hereafter dipped under the authority of the board, is authorized to pay out of the general funds of such county to the owner of cattle such loss or damage as may have been suffered by such owner because of the death or permanent injury to such cattle in the process of dipping, provided, that any one claim shall not exceed one hundred dollars. Section 2 is in the following words:
“That any owner of cattle making a claim for the death or injury of his cattle under this law shall make proof of the amount of his loss or damage to the board of supervisors, to the satisfaction of the said board of*821 supervisors. And when proof has been made or submitted to tbe board that is satisfactory to it that tbe owner of cattle has suffered loss or damage because of tbe death or permanent injury of bis cattle in tbe process of dipping, or as tbe result of dipping, tbe board may allow to such owner such fair and reasonable damages as in tbe judgment and discretion of the board will compensate him for bis loss or damage.”
We think this statute is not a statute creating an absolute liability against the county, but is an enabling statute to authorize tbe board of supervisors to pay such claims in any amount they may consider to be proper for such injury. Tbe very terms of section 2 of tbe act provide that the proof must be to tbe satisfaction of tbe board of supervisors, and that when proof has been made and submitted to tbe board that is satisfactory to it, tbe board may allow such claimant such fair and reasonable damage as in tbe judgment and discretion of the board will compensate him for bis loss or damage. We think this statute was passed for tbe purpose of preventing so many local bills being introduced to enable tbe board to pay in their discretion certain persons for cattle dipped. This conclusion is strengthened by tbe fact that chapter 221 of tbe Laws of 1914 requires the inspectors and other officers appointed to conduct tbe inspection and dipping of cattle to give bond in the sum of two thousand dollars, conditioned for the faithful performance of their duties, and providing that such inspectors or other officers shall be civilly liable on bis official bond for any damages to cattle or other live stock resulting from bis negligence or incompetency.
We are further of the opinion that tbe declaration does not charge any fact from which incompetency or neglect can legally be. determined. It is not sufficient to allege negligence as a mere conclusion or inference.
Affirmed.
