*1
(Tes.
REPORTER
214 SOUTHWESTERN
596
sheriff,
dissolving,
ment.
tiff’s cattle without due
juries likely to
plaintiff’s premises
sanitary commission, authority
out
legislative authority and discretion.
Civ. St.
Constitutional
35th
appeal.
confer
of cattle to eradicate fever
2.
Civ. St.
of cattle to eradicate fever
to the
1.
ty;
F. Hammond
Switzer,
(1st
Supp. 1918,
Domain
tion—Tick
Stock
cation
Board—Statute—Validity.
May 29,
Love &
Appeal
R. W.
Suit
Animals
Constitutional
objection
Acts 35th
Acts 35th
Rev.
compensation for,
J. D.
appellees.
Called
Leg. (Reg.
objection
upon
Supp. 1918,
Supp. 1918,
Sanitary
Affirmed.
and H. H.
St.
Harvey, Judge.
Franklin,
On Motion for
sanitary board),
from District
et
Bouts,
<§=>2(2)—Due
1919.
H. Serres
Sess.)
temporary
art.
Delegation
<§=29—Creation
al.
1911,
Eradication.
Leg.
under direction of the live stock
Leg.
and others. Erom an order
Sess.) c.
July
c.
On
HAMMOND,
c.
art. 7312 et
c.
Commission.
12.(Vernon’s Ann. Civ. St.
Law
Law
art.
E‘. T.
Houston,
art.
Cooper,
7,
attempts
et
60,
60,
Motion
and others
attempts
seize and mistreat
such seizure and treat-
injunction,
GO,
protection against,
seq.),
Process—Compensa-
Court,
7314n),
7314n),
<§=>62—Tick
<§=>278(1)—Eminent
Rehearing.
§
19§
as amended
oe Power
ticks,
ticks,
Texas.
and Acts 35th
Branch,
is constitutional.
for
of law and with-
oe Live Stock
(Vernon’s
to vest
(Vernon’s
to enter
Harris Coun-
is not
is not
seq. (creating
as to
Sheriff,
as to
Rehearing,
delegate
appellants.
Beaumont.
Houston,
Fred R.
Eradi-
dipping
subject
plain-
et al.
upon
Live
Ann.
Ann.
Acts
Leg.
and appellee
in-
Ann. Civ. St.
following reasons:
lees were
pellants’
lants,
mission.
injunction
case was
the conclusions
p.
Act of
stopped by this suit.
County Judge, 196 S. W.
May
head.
dip
(Cr. ed
App.)
7314 et
started the
said
had been held
the live stock
35th
tion
as amended
mission
county, Texas,”
Called Session
[1]
The action of the court
[2,
Before the
Strength,
failed to
rehearing,
the said commission and its
Acts
Mulkey
about
involved
3]
fully
Legislature,
29,
[Vernon’s
before
though
favor of “tick eradication in Harris
dipiied
regular session, under which
The
1917,
county,
19 of the
At a
M. F.
seq.]),
(article
On
of the 35th
asserting
1918,
However, they
affirmed,
constitutionality
sustained in Brazeale v.
appellants
work
Motion
County Judge,
and the various owners of said
brief
c.
previous day
Supp.
requested by
filing
Hammond,
and treated several
S. W. 991.
and this is the
and such election had result-
pursuant
Ann. Civ. St.
60,
reached
is unconstitutional
this
7312 et
act of 1917
the
courts
c.
the Both
this case
comply
on
upon
insist
p.
60, p. 107,
of this suit án election
thngs
pursuant
appeal.
tick eradication in the
<&s»Ifor *2 n v. HAMMOND Tes.) (214 :.W.) ! inspector thereof, any Texas, sion, sanitary or the or chairman of the commission live stock the acting premises of commission upon appellants’ and under the said authority to enter n thereof, appellants’ or chairman shall have the to treat, injure, seize, mistreat and sheriff, deputy any law, or con- process call the sheriff and without of without due county any against of protection in- stable the in which such live stock compensation for or found, duty shall the likely treat- are iff, and it be of said sher- and seizure juries such deputy constable, together sheriff,- or property, with appellants’ in violation said of dip inspector, guaranteed the said to seize and or rights property otherwise as appellants’ of of animal of treat such domestic ner and at or animals in a man- by provisions the Constitution of him the sanitary times as such the commis- States.” and the United of Texas the state up- sheriff, deputy sheriff, sion shall direct. or “to confer the same performing constable out' service as above author- such set the on ity sheriff of the pro- compensation property appellants’ shall receive such as is to seize discretion and Statutes, the vided article Revised treatment as such the and compensation paid any inspectors and similar person shall be sanitary or its commission stock live may hearing may perform- any who him in direct, to assist without or determine ing fees, rights services, appellants’ such and said all the judicial of determination or the taking stock, authorizing cost of and the thereby of of premises, said the against shall a lion animal property constitute such 'or due without said by and shall be civil of the collectable suit.” of the law due course without law land, contrary state to the Constitution This -case was decided lower court the United States.” of Texas and pleadings. No was offered. assignments, appel- foregoing pleading Under tlie In addition-to the unconstitutional- following propositions: ity 19, appellants pleaded advance the of lants section that the sanitary agents live stock commission and its provisions contrary of (a) the “It be would inspectors dip had ordered Constitution, the section a sheriff of poisonous ingre- their cattle in chemical constable, with no other of cattle; injure dients would the that which live stock instruction the the order or than inspectors, commission, agents pellants sanitary or would be forced to drive eradicating fever-carry- who, ing ticks, purpose of for the dipping vats, about five miles to the and that any person premises the enters time, driving this would take and that the by against takes the wishes seizes and owner’s injure them, cattle to and from the váts would other live stock.” force or especially cows; cattle, by the milch that the elementary (b) or is that the 'directions “It inhaling absorbing taking and otherwise sanitary commis- the live its instructions of systems poisonous chemicals, into their the agents inspectors, Texas, the or be sion sheriff thorize greatly injured; would be cattle are or constable would insufficient to any per- sound, healthy condition, premises the them to enter son, or being properly cattle the owner. Before other live appellants; or to 'seize the by cared against the wishes stock the sheriff would be premises of. infectious, malig- said cattle have no enter the authorized to nant, contagious, diseases, or communicable any person by his seize of other force possession property the and use said the or live stock and them for appellants, such as now have and eradication, purpose of he must author- tick be maintain, intend causes and constitutes proper or to do so warrant writ issued ized by public safety, the competent jurisdiction.” no menace to and there justifying (c) “This no conditions the exists the seiz- authorize premises seize ure, conversion, injury, or destruction of or constable to enter 'sheriff any being made at affidavit threatened the being all, without be the searched defendant. property all, at described the is to petition originally filed being all. evident seized described at county. E. Hammond sheriff Harris that such a must fail and be without force.” By permission of court the live stock the (d) or “For a sheriff constable to -seize and sanitary intervened and answer- stock, against or wishes other live the plaintiffs’ petition. eradicating pleading owner, purpose After ed the fever-carrying ticks, with no other question tick eradication was sub- than orders or instructions qualified mitted voters coun- agents sanitary inspectors, commission, its or approved, ty, it was taking property pro- would be without due duly of the election was certified to .result of law.” cess proper authorities, under au- county thority of said election Harris (article 7314n) Section 19' is as follows: duly quarantined, that Harris any person, firm, corporation owning, co-operation sanitary “If with the live stock or caring controlling or domestic animal commission, built a vats and any territory quarantined or by animals located county pur- dipping points in .Harris for the provisions act, order of horses, mules, dipping cattle, pose of Texas, the live stock shall commission of law, inspectors provided by had fail or refuse to in or treat such domestic short, pleading provided after —in animal or animals such such requirements necessary of the law time as put section 19 force and effect had into mission, then the live stock commis- (Tex. SOUTHWESTERN REPORTER complied with', said commis- been sion to and live stock as follows: county. answered commission and the sheriff of Harris n * “ authority granted It seems to us that the * prepared said vats so act, in this the same filled with the solution the especially necessary in section is a animals to bo could be de- *3 safely, injury easily administration, to said tail of in and not sense animals, dipped therein said ticks removed legislative. questions The different in raised therefrom, are above, ths as stated have been de- 100,000 head of and that more.than cattle adversely Livingston cided in dipped has been in said County, App. 19, v. W. 30 Tex. 68 S. Ellis Civ. injury s'aid treatments without and treated or loss or 723; City Galveston, Crossman v. damage any, either, or all of * n n 128; 109; S. W. v. Stockwell 203 S. W. your respect And cattle. fully intervener Riley dipped County, 743; v. Coleman W. the court that it has 181 S. shows to and and bo and directed the Gilbert, App. 100, caused to v. Chambers Tex. Civ. treating domestic animals 630; Maynard Freeman, 42 S. W. v. S. W. specified neigh act in of the class in said 334; Railway City Dallas, Co. v. 98 Tex. plaintiffs live, in borhood of where and has so of this cause 850; 84 S. R. A. W. Castleman L. requested plaintiffs Rainey, supra, and authorities cited consisting their said domestic original opinion. cattle, horses, mules, asses, and that said entering Without into a do; detailed discus- failed have and refused so to agency assignments propositions constitute an that for the transmission of fectious and a said animals sion of the ad- ’fever, Texas an in by appellants in vanced their motion for re- contagious disease, and constitute hearing, overrule the on the au- we danger menace and serious other cattle thority of the above-cited cases. vicinity county, Tex.; in said and in said Harris notwithstanding the duties of the plaintiffs when herein to so and treat said cattle requested so to do said live stock san-^ itary commission, they and each of them have’ * n n wholly failed refused so to do. In- INS. NORTHWESTERN NAT. LIFE respectfully CO. v. shows tervener the to the court that EVANS. said cattle would and could have injury done without been to said cattle and and Appeals of Civil of Texas. June great them, would would have resulted ever said cattle result in county permit benefit to injury no loss or what thereto, the failure <©=>646(3) 1. Insurance Insurance- —Life and so treat the said cattle would Payment Default ery of Premium —Recov- irreparable injury loss and to Harris Policy. therein, and cattle owners in that it will Beneficiary 15-year cannot recover on settle- agency transmit and be an policy giving profits upon share in to be insured for the transmission of through the said fever maturity 15-year period creditable to fu- the ticks from the said cattle to those premiums, ture where insurer had defaulted in that are free therefrom reason of the treat payment of the cash surrender premium, proof value ment received theretofore them.” policy death, at time of insured’s either as to Rainey, In Castleman value or as to the amount profits by policy apportionable earned Dallas, opin- Court of an it, profits, ap- of whether such published ion since we handed down our de- plied payment premiums, of future were suf- case, cision in this has sustained the consti- ficient to insurance in force at date of in- tutionality of section 19 of this act sured’s death. attacks similar to the ones made injunctions Rainey, In Insurance <§=>90 Castleman was —Life Insurance —Au- Agent Policy. part testimony —Limitations because the sustained application being injured policy, Provisions of were showed limit- ing agent’s authority, binding upon by plaintiff’s dip, both in- and because was not shown surer and insured. were infected with disease. contrary appears pleadings from the <§=>141(4) Contract—Repre- 3. Insurance appears case. an- intervener’s Agent Application—Pol- sentations icy. injurious; not was swer 100,000 something application like head of policy cattle had expressly Where dipped; appears made the entire contract between and it further insurer and insured, application provided pellants’ standing insurer cattle were a menace to by any representa- not was bound statements or county. Hence, in Harris the other under the agent, signed tions of the and where insured re- Rainey, of Castleman v. stating ceipt, policy that he had examined justified trial dissolv- represented, found neither insured nor ben- ing the eficiary legally policy, could claim that the agree issued, cannot par- not the contract between the delegation act amounts ties. eases see same KEY-NUMBER ©^oFor