
    WALKER v. STATE.
    (No. 6155.)
    (Court of Criminal Appeals of Texas.
    March 23, 1921.)
    J. Statutes t&wkey;64(2) — Provision of Cattle Tick Law, if ex post facto, heid separable from other provisions.
    Under Acts 36th Leg. (1920) Third Called Sess. c. 38, § 15, amending Acts 35th Leg. (1917) and c. 60 (Vernon’s Ann. Pen. Code Supp. 1918, art. 1284k), making it a misdemeanor for any owner of cattle exposed to ticks or having ticks on them, or having been exposed or been on premises where ticks are known to exist within nine months, to fail to dip them as directed by the Live Stock Sanitary Commission, where defendant’s cattle had ticks on them, and had been exposed to the tick subsequent to the date the law became effective, the prosecution might be .maintained though the nine-month clause were ex post facto, as it was separable from the other provisions and did not destroy them.
    2. Animals <§=»29 — Constitutional law <&wkey;497— Provision for dipping of cattle exposed to tick before passage, of law not ex post facto.
    Acts 36th Leg. (1920) Third Called Sess. c. 38, § 15, authorizing the .Live Stock Sanitary Commission to require the dipping of cattle exposed to fever-carrying tick within nine months prior to the passage of the act, and making violation of such direction a misdemeanor, is not an ex post facto law.
    3. Animals <&wkey;34 — Protest against order to dip cattle not condition precedent to defense to prosecution.
    Under the provision of Acts 36th Leg. (1920) Third Called Sess. c. 38, that a person notified to dip his cattle may file a protest and may obtain an injunction if dissatisfied with the action of the Live Stock Sanitary Commission thereon, it is not necessary to show the taking of such steps in order to avail of defenses against a criminal prosecution.
    4. Animals <&wkey;36 — Instruction heid not to make right to defend prosecution for refusal to dip cattle dependent on protest.
    In a prosecution for refusing to dip cattle as directed by the Live Stock Sanitary Commission, an instruction that the execution of such an order might be delayed by filing a written protest, but that when such step was not taken, the jury would determine if defendant was ordered to dip his cattle in conformity to law, and, if he unlawfully and willfully failed and refused to comply, did not make his right to defend dependent on the filing of a protest, but was favorable to defendant as tending to guard rather than impinge his rights.
    5.Criminal law <&wkey;l 159(5) — Jury’s determination held binding on appellate court under the evidence.
    Where the truth and sufficiency of the reasons given by defendant for declining to dip his cattle pursuant to notice from the Live Stock Sanitary Commission were passed on by the jury and determined against Mm, the jury’s decision held binding on the Court of Criminal Appeals under the evidence.
    Appeal from Gregg County Court; E. M. Bramlette, Judge.
    W. B. Walker was convicted of violating the Tick Quarantine Law, and he appeals.
    Affirmed.
    E. B. Martin, of Longview, for appellant.
    C. M. Cureton, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State. •
   MORROW, P. J.

Appellant is convicted for violating the Tick Quarantine Law. In chapter 38, Acts of the 36th Legislature, Third Called Session, amending chapter 60 of the Acts of the Thirty-Fifth Legislature (Vernon’s Ann. Pen. Code Supp. 1918, art. 1284k), there is found, in section 15, language in substance as follows:

“Any person owning cattle which have the fever-carrying tick upon them or upon any one of them or that are exposed to said fever-carrying tick, or that are on any premises on which the fever-carrying tick is known to exist or that have some time, within nine months ■preceding the issuance of the written direction to dip, hereinafter provided, teen exposed to said fever-carrying tick, or been on said premises or other place on which the fever-carrying ticlc is known to exist, who shall fail to dip," etc.

Appellant claims that the language italicized renders the law void as an ex post facto law. It is charged in the information that—

“On the 3d day of July, 1920, the appellant’s cattle were inspected and had been exposed to the fever-carrying tick, and had the fever-carrying tick upon them.”

The law quoted above became effective on the 17th day of June, 1920. It is therefore manifest that, if it be granted that that part of the law italicized was not enforceable, the prosecution might be maintained under that part of the law which was not subject to the supposed vice. In other words, if the reference to the nine months quoted was void, it is separable from that part of the law upon which this prosecution is found. Under such circumstances, the valid part of the law should not be destroyed, but the invalid part would be disregarded. Cye. of Law & Procedure, p. 976; Willoughby on Const., voL 1, p. 17; Ex parte Towles, 48 Tex. 413.

We will add that, in our opinion, the authority conferred by the section of the act quoted upon the Hive Stock Sanitary Commission to require by legal notice the dipping of cattle which within nine months prior to the passage of the act have been upon the premises infected by the fever-carrying tick would not be properly classified as an ex post facto law. Black on Interpretation of Laws (2d Ed.) pp. 382-383; Ruling Case Law, vol. 6, p. 290.

Inasmuch as the provision of the law mentioned does not operate in the instant case, a further discussion of its qualities is deemed unnecessary.

The facts disclosed show that the premises of the appellant were within the quarantine zone, and where the law for the eradication of fever-carrying ticks was in full force and effect; that the appellant was given the notice required by law to dip his cattle in a vat situated in the county of his residence, about four miles therefrom; that there had been previously constructed other vats near the premises, but that at the time of tne notice they were not in condition for use; that the appellant’s cattle at the time had fever-carrying ticks upon them, and had been exposed to such ticks. No protest or objection is shown to have been made by the appellant to the Live Stock Sanitary Commission against the dipping of his cattle at the time and place mentioned; but appellant refused to have them dipped at the place designated, and introduced certain defensive matters; among them, that the solution provided in the dip was not prescribed by law.

In section 15a of the act the dip is described as an arsenical solution of a strength not less than 7]4 pounds, and not more than 8% pounds of arsenic to each 500 gallons of water in said solution.

One of the witnesses testified that the solution in the vat mentioned, at the time, was tested, and that it was charged with—

“an arsenical solution of a strength of not less than 7% pounds of arsenic to the 500 gallons of water and not more than 8% pounds of arsenic to the 500 gallons of water; that the strength was approximately 8 pounds of arsenic to each 500 gallons of water; that the dip used was prepared by Sherman-William's Paint Company and approved by the live Stock Sanitary Commission, and containing no element, other than arsenic, that could injure cattle in any way.”

It is further shown that a solution of arsenic would not result from merely mixing the mineral arsenic with water; that it required proper preparation by cooking with salicylic acid or caustic soda; and that soap and tar were used in the proper preparation of the mixing; that in the cooking process to render the arsenic soluble, all salicylic acid or caustic soda were entirely consumed before the water was added; and that the particular mixture in use on the occasion in question showed the presence of no salicylic acid or caustic soda.

Appellant also urged that the hot season of the year and the distance to the vat designated was such that driving his cattle, which were wild, would injure, them; that there was a vat near his premises which could, with slight delay and expense, be repaired, and, further, that he had used a preparation upon his cows which eliminated the ticks.

In the charge of the court, the authority of the jury to convict was predicated upon their finding from the evidence that appellant unlawfully and willfully failed and refused to comply with the order to dip his cattle; that if the solution used in the vat was not properly charged, with the solution named in the statute, an acquittal must result. This further instruction was .given:

“The execution or carrying out of a dipping order may be delayed by the owner or caretaker of the cattle by filing with the Live Stock Sanitary Commission, or its chairman, a written protest against such order, in the form of an affidavit, within five days from the service of such dipping order; but where such step is not taken by. the defendant you will determine from the evidence if the defendant was, in conformity with law, as hereinbefore explained to you, ordered to dip his cattle at the time and place in question, and if he unlawfully and willfully failed and refused to comply with such order.”

The only objection we find filed to the court’s charge is in the following language:

“That portion of the charge that makes it the duty of the defendant when he has any objections to dipping his cattle that he file his objections in the form of an affidavit with the Live Stock Sanitary Commission, and because it in effect abridges the right of the defendant in his defense under his plea of not guilty, and that part of the law only applies to the civil remedy by injunction”

—and no special charges were requested.

In one of the sections of the act it is provided, in substance, that a person notified to dip his cattle may, within five days thereafter, file with the Live Stock Sanitary Commission a protest, stating reasons which are deemed sufficient ground for a rescission of the order or the postponement of its execution ; that the time for hearing of such protest shall be fixed by the commission, upon which hearing, either in person or by affidavits, proof may be made, and if the statements are found correct said dipping directions shall be rescinded. The act further provides that if the owner is dissatisfied with the action of the commission, he shall have the right to seek an injunction to stay its order.

We do not dissent from the view of appellant that this provision of the law does not deprive him in a criminal proceeding of the right to urge his defense under the plea of not guilty; and, to avail himself of his defenses against the criminal prosecution, it is not necessary that he show that he has taken the steps indicated. In the instant case we do not interpret the charge as in conflict with this view, nor does it appear subject to the criticism embraced in the exception quoted. We think, fairly interpreted, the effect of the provision of the court’s charge in question is to advise the jury that, notwithstanding he had failed to protest to the commission against the dipping order, they would nevertheless determine from the evidence before them whether there was a willful refusal to comply with the order. It occurs to us that such a charge was favorable to the appellant for the reason that, in its absence, his failure to file a protest with the commission might have been used against him. Doubtless the paragraph of the charge in question might have been framed in more appropriate language, but the terms in which it is framed are not complained of, and no special charge correcting it was presented. In its substance, we think its tendency was to guard rather than impinge the rights of the appellant. In the light of it the jury was directed to determine whether in refusing to obey the order the appellant was in the wrong and willfully disobeyed it. In other words, the truth and sufficiency of the reasons given by the appellant for declining to dip his cattle after he received the legal notice to do so were passed upon by the jury and determined against him. Their decision, under the evidence, is regarded as binding upon this court, and the judgment is affirmed. 
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