Hancock County v. Shaw

SteveNS, J., delivered the opinion of the court. The county in this case appeals from the judgment of the circuit court of Hancock county awarding appellee the value of a cow killed through the negligence of the county’s agent in dipping the cow under the provisions of the statute regulating the dipping of cattle for the eradication of the'cattle tick. Chapter 38 of the Laws of Mississippi, as passed at the extraordinary session of the legislature in 1917, requires the several counties of this state to pay á reasonable compensation for live stock that may have been killed or permanently injured since March 1, 1916, or that might be killed or permanently injured in the process of dipping after the passage of such law. The statute was approved October 12, 1917. Section 1 provides: “Be it enacted by the legislature of,.the state of Mississippi, that any person in any county in this state shall be entitled to recover from such county reasonable compensation for any live stock owned by such person that may have been killed or permanently injured since March 1, 1916, or that may hereafter be killed or permanently injured in the process of dipping or as a result of such' dipping foiy the eradication of the cattle tick, where such dipping was done under the supervision of the board of supervisors or the live stock sanitary board.” • ' The record in this case shows that the cow the value of which is sued for was killed prior to the pas54 , sage of the statute. As stated by counsel for appellant : * “.There is no dispute as to the facts in this case. * * * There is hut one thing that we care to call the attention of this court' to, and that is that the cow sued for in this case was killed, if killed at all, by the agents of the county prior to the passing of the law under which suit was filed. * * * The question now for. this court to decide is whether or not the legislature could provide that a county had to pay for all cattle killed prior to the passage of the law. * * * This is the only point at issue.” And' in the brief of counsel for appellee it is said: “As stated by appellant, the only question is whether or not the law is constitutional.” We proceed, therefore, to a discussion of this, the only point raised by the present appeal. Counsel for appellant observes: “We have found decisions holding that the legislature had no right to make individuals or railroads pay for something the doing of which''was not prohibited when done.” But counsel frankly admits he is “unable to find any authorities that * * * would support our contention, or that yould disprove our contention” so far 'as the constitutionality of the present statute is concerned. Any decision as to the power of the legislature to pass the statute under review was expressly preter-mitted in George County v. Bufkin. 117 Miss. 844, 78 So. 781. The statute is retroactive to the extent that it'gives a right of action to the owners of live stock killed or permanently injured in the process of or as a result of the passage and approval of the law October 12, 1917. But the statute expressly provides that the live stock the value of which is sued for must be killed or permanently injured as a result of dipping “done under tlie [55] supervision of the hoard of supervisors or the live stock- sanitary board;” and the burden is upon the owner to show that there is no contributory negligence on his part, and to “first make proof of the amount of hisi loss or damage to.the board of supervisors.” This legislation is not retrospective in the sense that it injuriously affects or disturbs vested rights of individuals or private corporations. The legislature was evidently mindful of the fact that owners of live stock have no option when it comes to dipping their cattle. It is a violation of the law for them to refuse to dip. The chancery court has jurisdiction to enforce the provisions of the dipping law and by its mandatory process to compel obedience on the part of the owner. If, then, the property of the owner is destroyed or permanently injured in the process of or as a result of dipping, it is fair to say that the owner whose property is thus destroyed has an equitable claim against the public. His property has been taken for the public good. As said in Cullman County v. Blount County, 160 Ala. 319, 49 So. 315, 18 Ann. Cas. 322: “The constitutional inhibition against retroactive laws does not apply to legislation recognizing and affirming such obligation of a subordinate branch of the state with respect to past transactions. It is designated 'and intended to prevent retrospective legislation injuriously affecting individuals, and thus protect vested rights from invasions.” The statute creates no right of action against an individual ' or private corporation. It simply gives a right of action against the county whose agent destroys or permanently injures private property. The sovereign state is dealing with one of its political subdivisions. No vested rights are affected or disturbed. The constitutional point under consideration was expressly decided in New Orleans v. Clark, 95 U. S. 644, 24 L. Ed. 521. The Supreme Court of the United States, [56] by Mr.- Justice Field, made the following pertinent observation : ‘ ‘A- law requiring a municipal corporation to pay. a demand wbicb is without' obligation, but which, is equitable and just in itself, being founded upon a valuable consideration received by the corporation, is not a retroactive law — no more so than an appropriation act providing for the payment of a pre-existing claim. The constitutional inhibition does not apply to legislation recognizing or affirming the binding obligation of the state, or of any of its subordinate agencies, with respect to past transactions. It is designed to prevent retrospective legislation injuriously affecting individuals, and thus protect vested rights from invasion.” The statute under consideratioü 'does not, in our judgment, violate either section 14 or section 16 of our state Constitution, or any other constitutional provision, either state or federal. Many retroactive statutes have been passed apportioning an existing liability between counties, or requiring counties or municipal corporations to pay claims which are morally binding, but- which cannot be legally enforced without a special act of the legislature. Judge Story, in Society for the Propagation of the Gospel v. Wheeler, 2 Gall. 105, 22 Fed. Cas. 756,. No. 13,156, defined retroactive legislation, stating: “Upon principle every statute which takes away or impairs vested rights acquired- under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already passed, must be deemed retrospective.” This definition of Mr. Justice Stoey was quoted with apparent approval by the Supreme Court of the United. States in Sturgess v. Carter, 114 U. S. 511, 5 Sup. Ct. 1014, 29 L. Ed. 241. Without attempting to test the constitutionality of our statute in the light of, or with reference to, this [57] definition, we have no hesitancy in saying that the main question is that of the right of the legislature to compel a subdiyisio'n' of the state to discharge an obligation which is considered to be a just' claim against the public. This general question will be found discussed to some extent in the note to State ex rel. Bulkeley et al. v. Williams, 68 Conn. 131, 35 Atl. 24, 421, 48 L. R. A. 465. Affirmed.