Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GERALD C. MANN ATTORNEY GENERAL
Honorable Dan W. Jackson District Attorney Houston, Texas
Attention: Coured J. Landram
Dear Sir:
Opinion No. 0-5358 Re: Constitutionality of H.B. 170, 48th Legislature of Texas, and related matters.
Your request for opinion has been received and carefully considered by this department. We quote from your request as follows:
"At the request of the County Clerk of Harris County, Texas, I am asking your opinion on the following questions, relating to H.B. 170, 48th Legislature, approved May 13, 1943, amending Chapter 1 of Title 181, Revised Statutes, 1925:
"Is the Job constitutional?
If that is the earliest date that the re-responding same-case place under the Act? This will doubtless be the earliest date on which it is the duty of the County Clerk to re-record also.
"Does the Act do not do not do re-recording of marks and brands on horses and wules?"
Said H. B. 170 reads as follows:
"H. B. No. 170
"AR ACT
providing for the re-recording of marks and brands; amending Chapter 1 of Title 181, Revised Civil Statutes of Texas, 1925, adding thereto an Article
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Honorable Dan W. Jackson, page 2
numbered 6899; deolaring the recording of all marks and brands heretofore made null and void; providing right to record brand for certain period; providing for forfeiture of such right if not oxereised within certain period; providing for sale or transfer of brands by owner; providing for recording or re-recording of brand or mark if no other person has sought to record such brand or mark regardless of whether or not the person seeking to record such brand or mark has previously recorded a brand; excepting counties from the provisions of the Act which shall have re-recorded brands or marks within the last five (3) years; repealing all laws or parts of law in conflict; and deolaring an emergency.
"BE IS REACTED BY TRE LEGISLATURE OF TRE STATE OF PRISM:
"Section 1. That Chapter 1, Title 121, Revised Civil Statutes of Texas, 1925, be amended by adding after Article 6898 an Article numbered 6899 to read as follows: "Article 6899. All records of marks and brands heretofore made as provided in this Chapter, except all county brands, shall beapme void and of no fofte and effect on the 1st day of October, 1943, and every person who has cattle, hogs, sheep, or goats shall have his mark and brand recorded or re-recorded in accordance with Article 6890 and Article 6898. "The legal owner of a brand and/or mark shall have a preferential right to record such brand and/ or mark for a period of two (2) years from the 1st day of October, 1943, but if such preferential right is not exercised within such two (2) years the same shall be forfeited and such brand and/or mark shall be subject to registration by any person, and the first person to record the same shall be the owner of the same. "Any brand recorded in accordance with the requirements of this Act shall be considered as the property of the person causing such record to be made and shall be subject to sale, assignment, transfer, devise and descent the same as other
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personal property. "Any person may record such brand and/or mark as he may desire to use provided no other person has recorded such brand and/or mark, without regard to whether or not such person has previously recorded a brand and/or mark. "This Ant shall not apply to any county which shall have reerecorded all brands and marks within the past five (5) years." "Sec. 2. All laws or parts of laws in conflict herewith are hereby repealed. "Sec. 3. The fact that so many recorded marks and brands are out of date and have no ownership, and are an unnecessary encumbrance on the records of the Gounty Clerks of various counties, creates an emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several days in each House be suspended, and said Rule is hereby suspended, and this Act shall take effect and be in force from and after its passage, and it is so enacted.
Ys/ John Lee Smith
President of the Senate Is/ Price Daniel Speaker of the House "I hereby certify that H. B. No. 170 was passed by the House on April 14, 1943, by the following vote: Yeas 93, Days 18.
Is/ Clarence Jones
Chief Clerk of the House
"I hereby certify that H. B. No. 170 was passed by the Senate on May 7, 1943, by a viva voce vote.
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"APPROVED: May 13th, 1943 /8/ Coke R. Stevenson Governor
FIIED IN THE OFFICE OF THE SECRETARY OF STATE THIS 13th DAY OF May 1943 AT 2 O'CLOCK AND 30 MINUTES P.M.
/8/ Sidney Latham Secretary of State
Article 6899, Revised Civil Statutes of Texas, 1925, was repealed by the Acts of 1929, 41st Legislature of Texas, p. 55, ch. 22, 1.
In answer to your first question it is our opinion that said R. B. 170 is constitutional. We think it is a valid exercise of the police power of the State. Live stock statutes dealing with branding and other matters relating to the protection of livestock of somewhat similar nature to H. B. 170 have been sustained by our Texas Courts as being valid exercises of the police power. See the following authorities:
Beyman v. Black, (1877) 47 Tex. 558.
Lastro v. State, (1878) 3 Tex. Grim. Rep. 363.
Walker v. Bovman, (1878) 1 Tex. App. Civ. Cases, (White & W.) 353.
In answer to your second question it is our opinion that the legal owner of a brand or mark has a preferential right to record such brand and/or mark for a period of two years from the 1st of October, 1943. The right of such owner to re-record does not attach until October 1, 1943; such preferential right of such owner endures two years thereafter. After the expiration of said two year period, if the owner has not availed himself of his preferential right, another person may record such brand or mark.
We note that R. B. 170, although containing the usual emergency clause, reflects that same was passed in the Senate by a "viva voce vote." Recourse to the Senate Journal shows that the bill was passed in the Senate but does not reflect the vote cast. Thus no showing has been made that the bill received the two-thirds majority necessary to place it
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In immediate effect. It therefore goes into effect ninety days after adjournenent - whieh, however, happens to be prior to oatober 1, 1943. In this connection see Opinion Ho. 0-5171-A of this department, copy of which is enclosed herewith for your information.
Artiele 6890, Vernon's Annotated Texas Civil Stat-
utes, reads as follows: "Every person who has cattle, hogs, sheep or goats shall have an ear mark and brand differing from the ear mark and brand of his neighbors, which ear mark and brand shall be recorded by the county clerk of the county where aueh animals shall be. No person shall use more than one brand, but may record his brand in as many counties as he deems necessary."
Artiele 6891, Vernon's Annotated Texas Civil Statutes, reads in part as follows: "Each county shall have a brand for horses and cattle, said brand to be known and designated as the 'county brand.' The county brand of each county shall be as follows:
Artioles 6892, 6893, 6896, 6897 and 6898, Vernon's Annotated Texas Civil Statutes, read as follows: "Art. 6892. The owners of all horses and cattle, in addition to their private brand, may place said county brand upon the neck of all horses and cattle owned by them." "Art. 6893. Whenever any horses or cattle branded with the county brand are removed to another or county, the owners of such atook may counterbrand with said county brand, and a bar under said county brand shall be used and known as the 'County brand,' and when so counterbranded the brand of the county in which said atook may be newly located may be placed on said atook."
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"Art. 6896. Cattle shall be marked with the ear marks or branded with the brand of the owner on or before they are twelve months old; hogs, sheep, and goats shall be marked with the ear mark of the owner on or before they are six months old." "Art. 6897. If any dispute shall arise about any ear mark or brand, it shall be decided by reference to the book of marks and brands kept by the county clerk, and the ear mark and brand of the oldest date shall have the preference." "Art. 6898. The clerks of the county courts in their respective counties shall keep a well bound book, in which they shall record the marks and brands of each individual who may apply to them for that purpose, noting in every instance the date on which the brand or mark is recorded."
Under a statute exempting two horses for each family, mules are exempt, as they are used for the same purposes. Allison v. Brookshire, 38 Tex. 199. "Horse," as used in a statute exempting from execution a horse used by the head of a family, means any animal of the genus "equus" or "horse" and hence includes an ass. Richardson v. Duncan, 49 Tenn. (2 Helak.) 220, 222.
The word "horse" is generic, and includes mules and asses as species. Molamb &; Co. v. Lambertsom, 62 S.E. 107, 109, 4 Ga. App. 553.
The word "horse" is sometimes used as a generic name, including all animals of the horse kind; as used in statute prohibiting the running of a horse race along a public road, it should be construed to include mules. Goldsmith v. State, 38 Tenn. (1 Read) 154, 156, eiting Bouvier Lav Dict. 590 . "Horses" as used in a statute requiring a railroad company to erect and maintain fences sufficient to prevent cattle, horses, sheep and hogs from getting on such railroad, includes mules and asses. "Horses and asses are both defined
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honorable Dan W. Jackson, page 7
by lexicographers as 'quadrupeds of the genus equus." "Dhio a H. R. Go. v. Brubaker, 47 Ill. 462, 463.
Artiole 6892, V. A. G. B., supra, definitely reoognizes that owners of horses (as well as owners of cattle also mentioned in the artiole) may have a private brand, which can be used in addition to the ountry brand. It is our opinion that the term "horses" used in Artiole 6892 also includes "mules."
In anover to your third question, it is our opinion that same should be anovered in the affirmative, and same is so anovered.
Very truly yours ATTORNEY OENERAL OF TEXAS By
WJF 1 db Enclosure
TTOREYY GUITRAL OF TEXAS