Moore v. Cunningham

87 So. 112, 124 Miss. 537

• Court: Mississippi Supreme Court
• Decided: October 15, 1920
• Docket: No. 21358
• Status: Published

Opinion

W. IT. Cook, J.,

delivered the opinion of the court.

Mrs S. A. Cunningham, appellee, instituted a replevin suit in the circuit court of Lowndes county, seeking to recover the possession of twenty-nine head of cattle, Avhich were alleged to have been wrongfully taken from, her possession by appellant, defendant beloAv.

The facts reflected in this record are substantially as folloAvs:

Appellant and appellee OAvned adjoining farms, Avhich Avere located within the confines of a certain stock law district in LoAvndes county, Avhich district had been created by chapter 231 of the LaAvs of 1882. Section 2 and 3 of this act provide:

“Sec. 2.' Be it further enacted, that if any animal or animals shall be found loose or trespassing upon the fields, or cultivated land of any person other than the owner of the animal or animals, it shall be laAvful for any one interested to take up and confine all animals so found, and the OAvner of such animal or animals, shall pay to the person taking them up, the sum of fifty cents per head for each horse, mule or coav, and the sum of tAventy-five cents per head for each hog, sheep or goat, and the further sum of tAventy-five cents per head per day for feeding- the same, and the OAvner shall not be alloAved to recover or repossess himself of any such animal or animals until said sum shall be first fully paid.

“Sec. 3. Be it further enacted, that any person who takes or confines any animal, under provisions of this act, shall, without delay, give notice of the taking up and confinement to the owner, if known or can be ascertained upon diligent inquiry, and if the owner shall not within five days from time such notice be given or diligent inquiry made, pay the amount due according to rate specified in preceding section, and take possession of his animal or animals, it shall be the duty of the person who took up and confined the same, to deliver it promptly to the nearest or most convenient justice of peace, who shall sell it at public auction for cash, after giving five days’ notice, by posting written or printed notices, in three public places of time and place of sale, and shall give to purchaser a bill of sale, which, in absence of fraud, shall vest in purchaser a perfect title to animal or animals bought by him; and the justice shall be allowed out of proceeds of sale, fifty cents per head for all horses, mules and cattle, and twenty-five cents per head for all hogs., sheep and goats sold by him as aforesaid; and he shall pay out of proceeds of sale, to person who took Up and confined the animal or animals sold, the amount due him, as provided in foregoing section, and balance of proceeds he shall pay to county treasurer for use of OAvner; provided, the owner call for the same within twelve months from day of sale, and in case of failure so to do, the same shall be paid into school fund of said county.”

Appellant owned a large number of cattle which were pastured on his premises, and which were permitted to escape therefrom, and they committed frequent depredations upon the crops of appellee. After numerous requests to appellant to keep his cattle up, appellee finally took up and impounded about forty head of them, and then notified appellant of that fact. Appellant promised to come out and look after them, and finally did go and inspect the cattle, but did not arrange to pay the damage or move the cattle. Appellee’s farm extended into Noxubee county, and while the cattle were taken up in Lowndes county, they were driven across the line into Noxubee county to be placed in an inclosure. Finally appellee went before a justice of the peace in Noxubee county for the purpose of instituting proceedings to sell 'the cattle for the damages accrued, but, upon being advised that the justice of the peace in Noxubee county was without jurisdiction in the matter., she went to Justice Hinkle, in Lowndes county. This justice agreed to advertise the cattle, but requested that the matter be delayed until he could talk to appellant, Moore. After talking to appellant, this justice of the peace suddenly resigned — for what reason does not appear. There being no other justice in supervisor’s district, No. 4, appellee then went before Justice Cummings, of Columbus, and he thereupon advertised the cattle for sale, and instructed appellee to bring them to Columbus on the day of sale. On account of the severity of the winter several of the cattle had died, and there were only twenty-nine advertised for sale, and there is much tstimony in the record upon the question as to whether appellee had properly fed and sheltered them. On the day of the sale the cattle were being driven to Columbus, and when near Columbus, and when passing-certain lands of appellant, he and his son suddenly confronted the negroes who were driving the cattle, and ordered them to turn them into his pasture or field and to unload the feed which they had on their wagons. The appellant and his son were armed with a shotgun and rifle, and naturally these negroes promptly complied with appellant’s demand. When the son of appellee arrived on the scene, he found tlie cattle penned in appellant’s field, the feed unloaded, some of the negroes gone, and appellant, armed with a deadly weapon, guarding- the cattle. Upon his refusal to surrender the-possession of them, appellee’s son proceeded to Columbus, and instituted this suit in the name of appellee to recover the possession of the cattle.

The controlling question presented by this record is whether the special or local act of 1882 creating this stock law district wag abrogated by section. 90 of tbe Constitution of 1890. Section 90 of tbe Constitution declares that —“The Legislature shall not pass local, private, or special laws in any of the following enumerated cases, but such matters shall be provided for only by general laws, viz.: (a) Granting divorces; . . . (k) exempting any person from jury, road, or other civil duty (and no person shall be exempted therefrom by force of any local or private law); ... . (q) relating to stock laws, watercourses, and fences.”

We have been unable to find, and counsel have failed to cite, any case where this court has passed upon the exact question here presented, but it has been passed upon by the courts of several other states in construing similar constitutional provisions.

Appellant. relies upon the case of Chidsey v. Tewn of Scranton, 70 Miss. 449, 12 So. 545, as authority for the contention that this special act has been abrogated by paragraph (q) of this constitutional provision. The Chidsey Case, supra, arose under paragraph (k), which is herein set out in full, and the court there used the following language:

“It is sought to maintain the exemption by the rule of. construction that repeals by implication are not favored, and by a criticism of the structure of the parenthetical clause of paragraph (k), above noted. It is said in argu-. ment that the clause does not declare that no one shall be exempt from the duties referred to, but only that no one shall be exempted — meaning that no one. shall claim exemption by reason of any special or local law thereafter enacted. This construction, if adopted, would render the clause superfluous, and without any force whatever, for by the first clause of the paragraph local, private, and special laws of the class under consideration are prohibited; the only effect the clause in parenthesis can have is to withdraw exemptions existing under special or local laws.”

It is earnestly contended that the parenthetic clause in paragraph (k) added nothing to the subdivision and took nothing from it, and that an entire omission of the parenthetic clause would not affect the construction of the subdivision, and that the Chidsey Case, supra, so held. We do not so understand this case. On the contrary, from the foregoing quotation from this case, it clearly appears to us that this decision., holding that exemptions previously granted by special or local laws were withdrawn, is based entirely upon that portion of the paragraph which appears within the parenthesis. Although this clause is written in parenthesis, it is not in fact parenthetical, and the Ohidsey Case has construed it as a substantive part of the subdivision, the effect of which was to abrogate exemptions already existing under special or local laws passed prior to its adoption.

In Cyc., vol. 36, p. 990, it is stated as the general rule for construction of constitutional prohibitions on special or local legislation that, provisions of state Constitutions prohibiting the enactment of special laws where a general law- may be applicable are not retroactive so as to annul special laws already in force. In support of the text cases are cited from California, Colorado, Illinois, Kansas, Kentucky, Maryland, New York, and South Dakota.

In Nevada School District v. Shoecraft, 88 Cal. 372, 26 Pac. 211, the court in passing upon a constitutional provision similar to ours, used the following language:

“The provision of the present Constitution that the legislature shall not pass local or special laws in certain cases applies to future and not to past legislation.”

Also in Board of Education v. Hyatt, 152 Cal. 515, 93 Pac. 117, it is said:

“The act, having been, passed before the adoption of the Constitution of 1879, was not affected by the restrictions contained in that instrument prohibiting the passing of local or special laws.”

In Huer v. City of Central, 14 Colo. 71, 23 Pac. 323; Covington v. City of East St. Louis, 78 Ill. 548; State v. Thompson, 2 Kan. 432, Smith v. Simmons, 129 Ky. 93, 110 S. W. 336; New Central Coal Co. v. George's Creek Coal & Iron Co., 37 Md. 537, and People v. B., F. & C. T. Ry Co., 89 N. Y. 75, the courts of those states have construed constitutional provisions similar to section 90 of our present Constitution, and held that, local and special laws enacted prior to the adoption of the constitutional provision under consideration were not abrogated thereby.

We conclude that the constitutional provision here under review was not retroactive, and that chapter 231 of the Laws of 1882 was not abrogated by section 90 of the Constitution, and since this act creating the stock law district is still in full force and effect, it follows that appellee was clearly within her legal rights when she took up and impounded the cattle found trespassing upon her premises and crops.

It is further contended on behalf of appellant that, since •there was a justice of the peace residing within the stock law district, the justice of the peace at Columbus was without jurisdiction of the proceedings seeking to sell the cattle for the statutory damages accrued. It appears that the proceedings were instituted before a justice of the peace at Columbus in an attempt to comply with the provision of the act creating the district which required the cattle to be carried before the nearest justice of the peace. The evidence is not clear as to the location of the justice within the district, and there is some evidence that Justice Cummings, of Columbus, was the nearest justice of the peace. * However, the legality of the proceedings before the justice of the peace is not here involved. This is solely a replevin suit to recover the possession of cattle alleged to have been wrongfully taken from the possession of appellee. Replevin is purely a possessory action, and the cattle were rightfully in the possession of appellee at ^fche time they were taken from her by appellant and his son by the use of a shotgun and a rifle. Whatever rights appellant may have had against appellee, he cannot maintain them by any such strong-arm methods as were here used, and he should have resorted to the process of the courts to assert them. The appellee was rightfully in possession of the cattle when they were taken from her by appellant, she was entitled to recover possession of them, and we find no- error in this record which would warrant a reversal of the judgment of the lower court.

Affirmed.