
    WALKER v. STATE.
    (No. 5715.)
    (Court of Criminal Appeals of Texas.
    April 7, 1920.
    Appellant’s Rehearing Denied June 16, 1920.)
    1. Animals <&wkey;34 — Criminal liability under tick eradication law defined.
    Tick Eradication Law (Acts 35th Leg. [1917], c. 60'[Vernon’s Ann. Oiv. St. Supp. 1918, arts. 7314-7314q]) does not require allegation and proof that cattle of accused were infected with ticks, or that they have been inspected, in order to sustain a prosecution thereunder.
    2. Animals ¡&wkey;34 — Statute contemplates free facilities for dipping cattle.
    Tick Eradication Law (Acts 35th Leg. [1917], e. 60, § 3 [Vernon’s Ann. Oiv. St..‘Supp. 1918, § 7314d]), as amended by Acts 36th Leg. (1919), c. 44, shows a legislative intention that facilities for the dipping of tick-infected cattle should be furnished at public expense, so that one required to pay a charge for the use of the facilities provided cannot be prosecuted for failure to dip cattle as ordered.
    Appeal from Comanche County Court; Jno. P. Hoff, Judge.
    John Walker was convicted of violating the Tick Eradication Law, and he appeals.
    Reversed. and remanded.
    V. W. Holmes, of Comanche, for appellant.
    • Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORB, J.

Appellant was convicted for violating the Tick Eradication Law in the county court of Comanche county, and given a fine of $25.

It appears that Oomanche county is in zone No. 1, as fixed by the terms of chapter 60, Acta of the Regular Session of the Thirty-Fifth Legislature (Vernon’s Ann. Oiv. St. Supp. 1918, arts. 7314V7314q) known as the “Tick Eradication Law,” and that on March 5, 1919, a quarantine was fixed upon said county by proclamation oí the Governor, under the provisions of sections 9 and 10 of said act (sections 7314g, 7314b). Thereafter, and in August, 1919, appellant was duly notified to appear and dip his cattle at a certain named vat, and upon his failure to comply this prosecution was instituted.

We do not think it necessary under the 1917 act, to allege or prove that the cattle of accused were infected with ticks, or that they had been inspected, as was held under the 1913 statute, in the McGee Case, 194 S. W. 652, and other authorities cited by appellant. An inspection of one,' or any number less than the whole, could not determine that a herd of cattle were free from ticks; nor would an inspection of a herd at a given date determine that the premises or range occupied by said cattle were free from ticks, nor that such herd might not, under ordinary conditions, be again infected by going upon an infected range, or by having infected cattle cross or come upon their range. As we understand it, the purpose of this law is to require the cattle of this state to be so treated as that fever-carrying. ticks, etc., will not attach themselves to such cattle, whenever by accident or necessity the opportunity for contagion arises, and that to attain this end the Legislature has seen fit to make obligatory,' within the terms of the statute, the dipping of all cattle in this state in the kind and character of solution fixed by authority of the agency established for the execution of the law, to wit, the live stock sanitary commission of Texas. The power to make this law is confided to the legislative branch of the government, and so long ds its terms are not shown to be unreasonable, or their execution so arbitrary as to seem oppressive, we must uphold it. We find nothing in the act of 1917 which requires an inspection of the premises or cattle as a condition precedent to the dipping of cattle, when properly notified so to do.

But one other question will be discussed. Section 3 of said chapter 60 (section 7314d) was. amended by chapter 44, Acts of the Regular Session of the Thirty-Sixth Legislature, so as to read as follows:

“It shall be the duty of the county commissioners’ courts to co-operate with and assist the live stock sanitary commission in protecting the live stock of their respective counties from all malignant, contagious, infectious or communicable diseases, whether such diseases exist within or outside the county, and otherwise protect the live stock interests of their counties. It shall be the duty of said commissioners’ courts to co-operate with the live stock sanitary commission and the officers working under the authority or direction of said commission in the suppression and eradication of fever-carrying ticks, and all malignant, contagious, infectious or communicable diseases of live stock; provided when it becomes necessary to disinfect any premises, county, or subdivision of the county infected with fever-carrying ticks, anthrax, hog cholera, glanders, foot and mouth diseases, bovine tuberculosis or contagious abortion, under order of the live stock sanitary commission, the county judge of -the county where said premises are located, shall have such disinfecting done at the expense of the county, and according to the rules and regulations of the live stock sanitary commission, and the said commissioners’ courts are hereby 'authorized and empowered and directed to appropriate moneys out of the general fund of their counties for the purpose of constructing or leasing necessary public dipping vats within their counties, and for the purchase of dipping material, and for the constructing of any other facilities and for the purchasing of any other materials for the hire of labor necessary to destroy the diseases and the carriers herein mentioned. Provided that for permanent improvements funds may be expended out of the county permanent fund.”

This seems clearly to indicate the intention of the Legislature to make the matter of tick eradication in the several counties one for which the expense should be provided out of the various county funds, The expressions “shall have such disinfecting done at the expense of the county,.” and “the said commissioners’ courts are hereby authorized and empowered and directed to appropriate moneys out of the general fund of their counties for the purpose of constructing or leasing necessary public dipping vats within their counties, and for the purchase of dipping material, and for the constructing of any other facilities and for the purchasing of any other material for the hire of labor necessary to destroy the diseases and the carriers herein mentioned,” would, seem to us to place beyond dispute the fact that after the taking effect of such amendment of 1919 such disinfecting, dipping,' etc., was to be at the expense of the counties. On his trial it was shown that a charge of 25 cents per head was fixed at the vat where appellant was notified to dip his cattle. One of his defenses was that he could not be required to pay this charge, and that he could not be compelled to dip his cattle until the county had prepared public facilities ; and he asked a special charge to the effect that he could not be convicted unless it was shown from the evidence that public facilities, without charge, were provided- This special instruction the trial court refused. Said amendment of 1919 went into effect in June of that year, and was effective in August, when this prosecution was instituted. We are unable to conclude otherwise than that such defense was valid, and that said charge should have been given. That the Legislature intended to make this a county expense is apparent from their language.' As to whether they had the power to direct such expenditure of county funds is a question not before us.

For the error mentioned, the judgment of the trial court is reversed, and the cause is remanded. 
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