Opinion
No. 27591.
January 21, 1929. Suggestion of Error Overruled March 4, 1929.
1. ANIMALS. Neither live stock sanitary board nor its officers have right to seize cattle without process of law and charge owner with costs of dipping them for eradication of ticks; officers of live stock sanitary board seizing cattle without legal process are liable to owner for damages ( Laws 1926, chapter 265; Constitution United States, Amendment 14; Constitution Mississippi, 1890, sections 14, 23).
Chapter 265, Laws of 1926, does not confer upon the live stock sanitary board, or its officers and agents, the right to seize cattle without process of law, dip them for the eradication of ticks, and charge the owner with the costs, and officers entering the inclosed premises of a citizen and seizing his cattle without legal process are liable to the owner for damages for such unlawful act.
2. ANIMALS. Charges for dipping cattle by officers of live stock sanitary board must be fixed by judicial proceeding, based on reasonable costs and expense ( Laws 1926, chapter 265, section 10).
The provisions of section 10, chapter 265, Laws of 1926, do not authorize officers engaged in tick eradication work to fix the fees chargeable against the owner of cattle for dipping them on an arbitrary basis, based upon the salaries of such officers; but such charges, where the property owner is liable for them, must be fixed by a judicial proceedings in case of the failure of the parties to agree on the amount, and must be based upon a reasonable cost and expense, and not upon an arbitrary valuation.
3. ANIMALS. Resort must be had to appropriate legal proceedings to obtain possession of cattle for purpose of dipping them ( Laws 1926, chapter 265).
Chapter 265, Laws of 1926, does not provide a specific method of obtaining possession of cattle for the purpose of dipping them, and quarantining them and selling them for the expense thereof, when the owner has failed to dip them at his own expense, and resort must be had to appropriate legal proceedings, which includes an opportunity for the owner of the cattle to be heard in some tribunal authorized by law to pass upon the question.
4. CONSTITUTIONAL LAW. Neither legislature nor any of its agents can deprive person of life, liberty, or property without due process of law ( Constitution Mississippi 1890, sections 14, 23; Constitution United States, Amendment 14).
Section 23 of the State Constitution prohibits search and seizure except upon probable cause supported by affidavit, but this alone will not authorize a seizure. The law must provide in what case a seizure or search may be made, and it cannot be made contrary to the provisions of this section. Section 14 of the state Constitution, and the Fourteenth Amendment to the Federal Constitution, provide that no person shall be deprived of his liberty or property except by due process of law. Neither the legislature, nor any of its agencies, can deprive a person of life, liberty, or property without due process of law.
5. OFFICERS. Officer injuring another while acting under color of office without authority of law is liable in damages.
Under the law of this state, the powers of officers, and their duties, are prescribed by law, and it is the duty of the officers, on assuming the duties of an office, to determine what powers and duties are conferred upon him. He does not become the law of the land by assuming office, and, if he does an act under color of office which injures a person, without authority of law, he is liable to damages therefor.
6. TRESPASS. One having right to legal possession of property has no right to invade premises and take possession thereof by force.
Under the law, a party has not the right to invade the premises of another, and take from the possession of the other party by force, or against the will of the party in possession, any property, even though he may have a right to the legal possession thereof, but he must in such case resort to court to obtain possession if the party in possession of the property refuses, on demand, to deliver it.
APPEAL from circuit court of Wilkinson county, HON. R.L. CORBAN, Judge.
Jones Stockett, for appellant.
The court should not have directed the verdict for appellees. Appellees claim as authority for their acts sec. 9, chap. 265, Laws of 1926. This calf had been released on November 11. Appellees were immediately advised that this calf had been released. If the calf had been released appellees had no authority to make this entry and seizure.
Appellees had no right or authority to make this search and seizure and the motion of appellant to exclude should have been sustained. Sec. 9, chap. 265, Laws of 1926, provides no machinery or procedure for the searching of barns, inclosures, pens or homes and the seizure therein of such cattle if found. To do this a search warrant is vital and necessary. If this statute furnishes the authority to make a search and seizure without a search warrant or legal writ, to that extent it violates secs. 14 and 23 of the state Constitution. Even after being advised that this calf had been released these appellees, armed with a commission from a board, proceeded with their design and purpose without investigation of any kind. This is an attempt, without judicial determination, to destroy the rights and property of appellant. McBride v. State, 70 Miss. 717; Goltra v. Weeks, 70 L.Ed. 1074; Byrd v. Welsch, 128 Miss. 843.
In U.S.F. G. Co. v. State, 121 Miss. 369, 83 So. 610, it was held: "Where plaintiff alighting from a train, intrusted her suit case to a transfer man and just after alighting the city marshal searched the suit case for alcoholic liquors supposed to belong to the transfer man over his protest and without a search warrant in such case the defendant marshal was violating section 23 of the Constitution of 1890 relating to unreasonable search and seizure and since he was presumed to know the law his act was a willful wrong and mental suffering was a proper element of damages." In the case at bar this was an unlawful, unreasonable, and unjust search and seizure. Moore v. State, 138 Miss. 116, 103 So. 483; Lee v. Oxford, 134 Miss. 647, 99 So. 509; Tucker v. State, 128 Miss. 211, 90 So. 845; Butler v. State, 135 Miss. 885, 101 So. 193; McNutt v. State, 108 So. 721.
In conclusion we submit that the procedure adopted and taken by the appellees shown by this record was and is unwarranted and unjust both in law, reason and right. Even though appellees entry was lawful they abused their authority and are liable. Dickson v. Parker, 3 How. 219.
Tucker Tucker, for appellees.
Appellees were working under and seized the calf under authority of sec. 9, chap. 265, Laws of 1926. The calf was sold by the sheriff under authority of sec. 10, chap. 265, Laws of 1926. It is not contradicted that appellant received the five-days' notice, failed to dip the calf, that the calf was dipped, quarantined and placed in the custody of the sheriff by appellees, Live Stock Inspectors, and was sold by the sheriff according to law for the expenses so incurred. It is a well-established rule that one of the most important fields of legislation in which a state may enact measures under the police powers consists of regulations in the interest of public health, public safety and to establish regulations that are reasonably necessary to secure the general welfare of the state, and under this head would come the right to establish quarantine regulations in reference to animals and live stock. 6 R.C.L. 206, sec. 200; Hawkins v. Hoye, 108 Miss. 282, 66 So. 741. The inspectors of the State Live Stock Sanitary Board, Nolan Anderson and Clarence Ward, working in conjunction with Hugh Rodgers an inspector in Wilkinson county, Mississippi, of the Bureau of Animal Industry of the United States, followed the procedure laid down by the legislature cited above to the letter of the law, as shown by this record. The legislature had the authority under its police power to pass a regulation for the prevention of the spread of this contagious disease among livestock in the interest of public good, and this regulation does not violate the Constitution of the state of Mississippi. State v. J.J. Newman Lbr. Co., 102 Miss. 802; Abbot v. State, 106 Miss. 340; Bailey v. Van Pelt (Fla.), 82 So. 789; Whitaker, Sheriff, v. Parsons (Fla.), 86 So. 247; Gorieb v. Fox, 134 S.E. 914.
Argued orally by P.M. Stockett, for appellant.
The appellant, D'Aquilla, filed a suit against the appellees, alleging that on or about the 13th of November, 1926, the defendants did by force of arms, and without his consent, enter his inclosed premises at Ft. Adams, in Wilkinson county, and tie and take away a calf, the property of plaintiff, valued at ten dollars; the said trespass being willful and wanton, and without authority of law, and defendants thereafter failed and refused to return the calf so illegally taken away; by reason of which trespass and conversion of the property of plaintiff the latter has been damaged in the sum of five hundred dollars.
The defendants pleaded the general issue, and gave notice thereunder that on the trial of the cause they would introduce evidence to prove that Anderson and Clarence Ward were commissioned by the state live stock sanitary board as range riders, and that they were officers of the law in tick eradication work in the county; that Hugh Rodgers was commissioned by the Federal Bureau of Animal Industry as an agent and officer of the law to enforce the rules of the state live stock sanitary board in tick eradication work; that the plaintiff was duly notified to dip all his cattle, horses, mules, jacks, and jennets; that he failed and refused to dip the calf, and the defendants, under and by authority of the law, took possession of said calf, dipped and quarantined it, and placed it in the custody of the sheriff, who sold it for ten dollars, for its feed and care, under the law; and there is now due the sheriff a balance of three dollars seventy-five cents for care of the calf.
On the trial of the case, the defendant Rodgers was asked, on cross-examination:
"Q. Did you have any papers of any kind? A. Only my commission as a livestock inspector."
He was also asked:
"Q. Who authorized you to go in that lot? A. My commission by the livestock sanitary board."
Anderson testified to like effect, and introduced his commission from the live stock sanitary board, as live stock inspector, as authority for their entry into the lot of the plaintiff, the taking therefrom the calf, over his objections, and without his knowledge and consent, dipping the same, and turning it over to the sheriff. We quote the following from the commission, relied upon as authority for this entry and taking of the calf:
"This certifies that Mr. Nolan Anderson, Woodville, Mississippi, has been this day commissioned as a livestock inspector for the state of Mississippi, in accordance with section Three, House Bill 206, Laws of 1926, and is hereby authorized and empowered to enter premises to inspect and disinfect livestock and premises and enforce quarantine, including counties, farms, pens, stables and other premises. In witness thereof the said state Livestock Sanitary Board has caused this commission to be signed by its duly authorized executive officer and to be sealed with its seal this first of May, 1926.
"[Signed] R.V. Rafnel; and the seal of the Livestock Sanitary Board."
The testimony further shows that, when the calf was taken from the lot, the plaintiff claimed to the officers that the calf had been exempted, and offered to dip it himself if they would let him do so; but they refused to do so, dipped it themselves, and refused to turn it over to him unless he paid a charge of eight dollars for their dipping of the calf. With reference to this expense, the witness stated:
"Q. What were the expenses? A. Eight dollars.
"Q. How did you arrive at the amount? A. Three of us at one hundred forty dollars per month, and I figured that eight dollars would not quite cover it all, but we had another cow.
"Q. How did you arrive at eight dollars? A. I figured at sixteen dollars, and eight dollars was half of it.
"Q. Did you collect for the other cow? A. Nobody claimed it.
"Q. On what legal basis did you charge your fees? A. According to what we were getting paid.
"Q. According to your salary? A. Yes, sir."
There was a peremptory instruction for defendants in the court below, from which this appeal is prosecuted.
There was no introduction of any ordinance or rule or regulation of the livestock sanitary board in evidence, and, as stated above, there were no legal papers of any kind taken out by the officer to secure possession of the calf, but, without any such writ or papers, the defendants went into the inclosed premises, took the calf, and dipped it, and, without any statutory authority, made the charge of eight dollars for so doing, basing the said charge upon the pro rata of one day to a month's salary of each of the three officers involved. In other words, the whole proceeding appears to have been based upon the authority of the commission issued by the live stock sanitary board, and the officers assumed that they had the right to fix the charge on the basis of their monthly salaries.
Chapter 265 of the Laws of 1926, section 9, is relied upon as the authority of the live stock sanitary board to act in the premises. Under the title, "Procedure when the owner fails to dip," section 9 provides: "Cattle, horses, jacks, jennets or mules infested with or exposed to the cattle tick (Margaropus Annulatus), in any county known to be partly or wholly infested with such tick, the owner or owners of which, after five days' written notice from a live stock inspector, or such animals as are provided for under section 8, shall fail or refuse to dip such animals at a time and place designated in such notice and regularly every fourteen days thereafter until released, in a vat properly charged with arsenical solution, under the supervision of a live stock inspector, said cattle, horses, jacks, jennetts or mules shall be dipped, quarantined and placed in the custody of the sheriff, by the live stock inspector. Suitably fenced areas for holding such cattle while in the custody of the sheriff shall be provided by the board of supervisors."
Section 10 provides as follows: "Any expense incurred in the enforcement of section 9 of this act, or for feed, care and handling of such animals while undergoing the process of tick eradication, and any expense incurred in handling, dipping, confining, feeding or pasturing of any animals while in the custody of the sheriff shall constitute a lien upon such animal or animals to be paid by the owner or owners of the animals before the same are released by the sheriff. Should the owner or owners of cattle, horses, jacks, jennetts and mules which have been placed in the custody of the sheriff as herein provided, fail or refuse to pay said expenses after five days notice, they shall be sold by the sheriff of the county after ten (10) days advertising, either by notice at court house door and two other public places in the neighborhood of the place at which the animal was taken up for the purpose of tick eradication or in the newspaper published in the county having general circulation therein."
Section 11 provides the penalty for violation of the rules and regulations of the live stock sanitary board, making the same a misdemeanor.
It will be noticed, from a reading of chapter 265, Laws 1926, that methods of seizure are not provided for. Presumably the legislature intended existing remedies to be applied to enforce the provisions of the act. The act does not, in terms, authorize the range riders or the sheriff to enter the inclosed premises and seize and take away property of the owner without demand. If possession is refused on demand, then appropriate legal proceedings, including an opportunity to be heard by the person owning the cattle or live stock in some tribunal authorized by law to pass upon the question, should be taken.
Section 23 of the Constitution prohibits searches and seizures except upon probable cause, supported by an affidavit. But this alone would not authorize a seizure. The law must provide in what case a seizure and search can be made, and it cannot be made contrary to the prohibitions of the Constitution. Section 14 of the State Constitution, and the Fourteenth Amendment to the Federal Constitution, provides that no person shall be deprived of life, liberty, or property except by due process of law. The legislature could not authorize the live stock sanitary board to do what it could not do itself. Certainly the live stock sanitary board could not confer authority in a mere commission of an officer to enter premises and seize property without conforming to the above provisions of the Constitution.
One of the first things an officer should learn on assuming the duties of office is the law bearing on his office and its duties. He does not become the law of the land by assuming office, and can do no act unless the law authorizes him to do so, which will affect any other person's rights, property, or liberty. As no ordinance of the live stock sanitary board was introduced, we have no way of knowing whether any of the regulations or rules pertinent to this matter existed. But we know that a mere commission was not sufficient authority for the acts which were here done. The officers, having acted without legal authority, are clearly liable to the plaintiff for their invasion of his premises and the seizure of his property.
Under a former statute, the supreme court held that an injunction would lie to compel an owner to conform to the dipping laws. McMillan v. Live Stock Sanitary Board, 119 Miss. 500, 81 So. 169.
Section 14 of the act repealed certain former laws, which repeal included the law the court acted upon in that decision. It may be that the officers had a right to replevy the cattle to get possession of them, but it is certain that before they could take them they must either have the consent of the owner or some legal possession.
In Wilson v. Kuykendall, 112 Miss. 486, 73 So. 344, the court said: "Under the law a party has not the right to invade the premises of another and take from the possession of the other party by force or against the will of the party in possession any property, even though he may have title thereto. He must in such case resort to court to obtain possession if the party in possession refuses on demand to deliver the property."
It is true, the defendants here were officers, but they had no legal process to serve, and what was said in that case is applicable here to one before us. The court was accordingly in error in granting the peremptory instruction for the defendant, but should have granted a peremptory instruction on liability for plaintiff and impaneled the jury to assess the damages.
The judgment of the court below will therefore be reversed, judgment rendered here establishing liability, and the cause remanded to the court below, with instructions to issue writ of inquiry and assess the damages.
Reversed and remanded.