
    McGEE v. STATE.
    (No. 4402.)
    (Court of Criminal Appeals of Texas.
    April 25, 1917.)
    1. AnimAls <S^29 — Tick Eradication — Offenses — Statute Applicable.
    The tick eradication law, enacted March 6, 1917, does not apply to the case where the cause originated and the conviction was had and the appeal perfected before that date, but only the provisions of Acts 33d Leg. c. 169, are applicable,
    [E'd. Note. — For other cases, see Animals, Cent. Dig. § 79.]
    2. Statutes ®^>76(1) — Construction—Constitutional Provisions.
    Const, art. 3, § 56, prohibits, except as otherwise provided, passage of certain local and special laws, “and that where a general law can be made applicable, no local or special law shall be enacted.” Article 16, § 23, provides that the Legislature may pass laws for the regulation of live stock, etc., and exempts sections or counties from the operation of such laws. Tick Eradication Law (Acts 33d Leg. c. 169) § 8 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7314e), provides for an election in each county to determine whether such county shall take up the work of tick eradication, and when such elections are carried, the county judge shall notify the sanitary live stock commission of the adoption of such law and that the Governor shall issue a proclamation quarantining the county for tick eradication, etc. Held, that under Const, art. 16, § 23, section 8 of Acts 33d Leg. c. 169, is constitutional.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 77½.]
    3. Criminal Law <®==>304(9) — Evidence—Judicial Notice.
    In a prosecution for violation of Tick Eradication Law (Acts 33d Leg. c. 169), as under the law the court and jury had to take judicial notice of the Governor’s proclamation that a county had adopted the law, it was unnecessary to prove the proclamation alleged.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 706, 2951½,]
    4. Criminal Law <@=>430 — Documentary Evidence.
    If the state undertook to introduce the proclamation, a certified copy was sufficient, and under no circumstances would it have been necessary to produce the original.
    [Ed. Note — For other cases, see Criminal Law, Cent. Dig. § 1019.]
    5. Criminal Law <@=>304(17) — Evidence—Judicial Notice.
    In a prosecution for violation of Tick Eradication Law (Acts 33d Leg. c. 169), judicial notice could not be taken of the notices from and orders of the state sanitary live stock commission.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 712, 2951⅝.]
    6. Criminal Law <S=^441^-Evidence — Documentary Evidence — Admissibility.
    In a prosecution for violation of Tick Eradication Law (Acts 33d Leg. c. 169), a notice from the state sanitary live stock commission, not signed or properly authenticated or proven up, should have been excluded, since either the original should have been produced and identified, or at least a properly authenticated copy thereof in order for it to be admissible.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 1028.]
    7. Animals <§=>36 — 1Tick Eradication — Offense — Evidence.
    In a prosecution for violation of Tick Eradication Law (Acts 33d Leg. c. 169), based on section 7, making it a misdemeanor to fail or refuse to dip or otherwise treat live stock as directed by the sanitary live stock commission, although section 4 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7314c) makes it the duty of the owner or caretaker of live stock located in special quarantined area established under authority of section 3 to treat such live stock as directed by such commission, a purported copy of a notice to the sheriff by the commission, unsigned, notifying him to take defendant’s cattle in possession and dip them, was immaterial, and should have been excluded, as the prosecution was not based on that section of the law giving the commission power and authority to require the sheriff to do it.
    [Ed. Note. — Por other cases, see Animals, Cent. Dig. §§ 95, 96.]
    Appeal from Young County Court; W. P. Stinson, Judge.
    W. C. McGee was convicted of unlawfully violating the tick eradication law, and he appeals.
    Reversed and remanded.
    Johnson & Johnson, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of unlawfully violating the tick eradication law, and assessed the lowest fine.

The first and only law applicable herein passed by our Legislature on the subject of the eradication of ticks, so far as we can find, was the act of April 8, 1913, p. 353 et seq. This act is quite crude, at least in some of its provisions, and some of them are quite difficult to understand, if indeed the language thereof is such that they can be understood in some particulars at all.

The present Legislature, however, by an act approved March 6, 1917, not yet published, enacted another law dn this subject, which is much clearer and some of its provisions fuller than the act mentioned above. We have examined the new act in the secretary of state’s office, and find that it provides that that act is cumulative 'only, and in effect does not expressly repeal the previous law. Furthermore, as this cause originated and the conviction was had and this appeal perfected before said act of March 6, 1917, was enacted, its provisions cannot be applied herein, but only the provisions of the said act of April 8,1913, are applicable. This prosecution was had under section 7 of said act of April 8, 1913, which is:

“Any person, company or corporation owning, controlling or caring for any domestic animals affected with or known to have been exposed to any contagious or infectious disease or the agency or transmission thereof, who shall fail or refuse to dip or otherwise treat such live stock at such time and in such manner as directed by the live stock sanitary commission, * * ⅜ shall be fined in any sum not less than fifty dollars nor more than one thousand dollars.”

Section 4 thereof is:

“It shall be the duty of any person in any county who is the owner or caretaker of any live stock located in a special quarantined area established under the authority of section 3 of this act, known by the live stock inspector to be infected with ticks (Margaropus analatus) or scabies infection are exposed to infection or agent of transmission of any other infectious, contagious, or communicable disease to treat such live stock and at such times and in such manner as shall be directed by the Live Stock Sanitary Commission.”

Section 8 requires the commissioners’ court of any county lying in a certain portion of the state to order an election held in such county upon the petition of a certain number of resident landowners to determine whether such county shall take up the work of tick eradication therein. It also directs when and how such elections shall be held, returns made, and the result declared. And when such elections are carried, etc., it requires the county judge -of such county to notify the sanitary live stock commission of the adoption of such law, and requires the commission to have the Governor issue a supplementary proclamation quarantining said county for tick eradication, and, in substance, requires the counties and citizens thereof under the direction of said commission to begin the work of tick eradication within 30' days thereafter.

The information herein, which was based upon and follows a proper complaint, alleged that an election was held in Young county on December 11, 1915, for determining whether that county should be under the direction of said commission for the eradication of the Texas fever tick, and after said law was in force and effect, and tlie Governor liad issued properly the said proclamation placing said county under quarantine for said purpose, that thereafter, on July 6, 1916, appellant was the owner and caretaker of domestic animals, catüe, “then and there infected with and exposed to the Texas fever tick, an agency for the transmission of an infectious and contagious disease, and did then and there fail and refuse to dip his said cattle as required by law,” and after said commission had directed him to- dip his cattle, “and an order to that effect had been served upon him by an authorized inspector.”

Section 56, art. S, of our Constitution, provides that “the Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law, authorizing,” and then specially enumerates a large number of matters embraced within this express prohibition, and concludes with this further provision, “and in all other cases where a general law can be made applicable, no local or special law shall be enacted.”

If this section of our Constitution was all there was therein about the enactment of a local or special law, then perhaps it would have prohibited and excluded the enactment of said sections of the said act of 1913; but the constitutional convention and the people in adopting it enacted another provision (section 23 of article 16) which is:

“The Legislature may pass laws for the regulation of live stock and the protection of stock-raisers in the stock-raising portion of the state, and exempt from the operation of such laws other portions, sections or counties; and shall have power to pass general and special laws for the inspection of cattle, stock and hides, and for the regulation of brands: Provided, that any local law thus passed shall be submitted to the freeholders of the section to be affected thereby, and approved by them before it sháll go into effect.”

This section 23 took out of said section 56 any prohibition'of the character of legislation of said act of April 8, 1913, and is one of the exceptions “otherwise provided in this Constitution” by section 56. Both our Supreme Court, in Armstrong v. Traylor, 87 Tex. 598, 30 S. W. 440, and this court, in Ex parte Tompkins, 47 Tex. Cr. E. 359, 83 S. W. 379, and see also Roberson v. State, 42 Tex. Cr. E. 597, 63 S. W. 884, have expressly held that under said section 23 our Legislature has the power and authority to pass a law regulating live stock and to make it applicable to the entire state or to a given county or to a subdivision of a county. And that such law can be made effective by direct enactment of theTlegislature, or the Legislature can provide for submitting said law to a direct vote of the freeholders of the locality in order to make it effective. We regard this question so well settled that we deem it unnecessary to further discuss it now. So that that part of the act of April 8, 1913, pro-. vi'ding for the submission of the tick eradication law to a vote of the county, and that the county had adopted it and the Governor at the instance of the commission had properly issued said proclamation, is not unconstitutional, but on the contrary the act and what was done thereunder was clearly constitutional.

Under the law the court and jury had to take judicial knowledge of the Governor’s proclamation alleged. It was unnecessary to prove it. But if the state undertook to introduce it at all, it would be proper to procure from the secretary of state a properly certified copy of such proclamation. The new act of March 6, 1917, so provides. Under no circumstances would it have been necessary to have produced the original and introduced that.

Judicial knowledge could not have been taken of the notices from and orders of the sanitary live stock commission. The notice from the sanitary live stock commission introduced over appellant’s objections was unsigned by any one and not properly authenticated or proven up. Appellant’s objections to it should have been'sustained, and that document excluded. Either the original of that from the commission, if necessary to be introduced at all, should itself he produced and identified, or at least a properly authenticated copy thereof, in order for it to be admissible.

We cannot see how the purported copy of a notice to the sheriff by the commission, unsigned, notifying him to take appellant’s cattle in possession, arid him, the sheriff, dip them, had any bearing in this case. The commission had the power and authority under the law to require the sheriff to do this, but this prosecution was not based on that feature of the law, but was upon appellant’s failure and refusal himself to dip his own cattle. On another trial, unless in some other way this is shown to be material, that notice, should be excluded.. We think the testimony of the county attorney sought to he introduced by appellant was inadmissible.

We deem it unnecessary to discuss any other question attempted to be raised.

Eor the errors above pointed out, the judgment is reversed, and the cause remanded. 
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