Untitled Texas Attorney General Opinion ( 1951 )

December 12, 1951
lion,D. A. Davidson, Dlrector
Livestock Sanitary Commission
of Terns
3320 'West Seventh Street
Fort Worth, Texas Opinion No. V-1372
Re: Legality of cattlemen's
using individual hold-
ing brands which are
the same as brands
specified by law to
identify diseased cat-
Dear Mr. Davidson: tle.
Your request for an opinion refers to certain
Acts of the Legislature which provide for the brandine
of diseased cattle on the left jaw with the letter "T
for those with tuberculosis, and the letter "B" for
those having Bang's Disease , and then you state as fol-
lows :
'In the first of these Acts the letter
'T' is designated for the identification of
cattle found, by recognized methods, to be
positive reactors to the tuberculin test;
and in the second Act, the letter IBI is
designated for the identification of cattle
found to be positive reactors to the recog-
nized test for Brucella Abortus. It has
now come before this Department and its
field representatives 'chatindividual cat-
tlemen are using the letter IT' in some
instance, and the letter IBI in others,
as individual holding brands. Investiga-
tions further reveal these holding brands
are recorded with the County Clerks of the
Counties wherein the owners reside, identl-
fying these brands as having been legally
recorded.
"In the instance of the brand ITI, it
was found upon Investigation that some fif-
teen individual owners in the western part
. .
Hon. D. A. Davidson, page 2 (v-1372).
Of the State have this brand recorded, with
its position designated on the animal as
the left jaw, as a holding brand.
"Since separate Acts of the Legisla-
ture have definitely set out and designated
the letter ITI, in the Instance of tuber-
culin reactors, and the letter IBI in the
instance of Brucellosia reactors, as a
distinct identification of animals found
positive reactors to either of these dis-
eases, as the case may be, the question
then arises as to whether or not individual
owners in this State have a legal priority
in reoording either of these brands as hold-
ing brands, even though the said recording
was done prior to, or since the passage of
these separate Acts referred to. Can these
owners legally continue the use of either
of these brands as holding brands, even
though the Acts of the Legislature became
effective later than the original recording
in some instances?
"This matter has caused considerable
confusion in our field work, as to positive
identification of animals bearing either of
these brands, which by Legislative Act in-
dicate diseased animals."
The pertinent part of Article 1525b, Section
14, V.P.C., provides:
"All cattle that show a positive reac-
tion when tested for tuberculosis by a vet-
erinarian recognized by the Live Stock Sanitary
Commission for the performance of such testing
are hereby declared to be a public nuisance
and a menace to the health of other live stock
with consequent aad serious danger to human
life and health. It shall be the duty of said
veterinarian to brand or have branded all of
said positive reactors IT' on the left jaw with
a hot iron, which letter 'T' shall be not less
than three inches high. s . .n
Article 1525d, Section 1, V.P.C., provides:
Hon. D. A. Davidson, paged3 (V-1372).
%hen an accredited representative of
the Livestock Sanitary Commis~sionof Texas
or an accredited representative of the
United States Secretary of Agriculture or
an authorized veterinarian makes an agglu-
tination blood test for Bang's Disease of
cattle in this State he shall furnish to
the owner of such cattle in writing data
showing that certain identified animal or
animals have reacted to the test and are
affected by the disease, it shall be the
duty of the said authorized veterinarian
or accredited representative of the Live-
stock Sanitary Commission within forty-
eight (48) hours to brand each reactor or
animal affected with the disease on the
left jaw with the Letter 'B' and place a
metal tag in the ear of such animal with
numbers thereon and report in writing to
the Livestock Sanitary Copission of Texas
the numbers on such tags.
Article 1525e, Section 1, V.P.C., provides:
"It shall hereafter be unlawful for
any person to sell or otherwise dispose
of any cattle for milk purposes when he
knows or has reason to believe said cattle
are infected with Bang's Disease. If any
person shall sell or otherwise dispose of
any cattle having the brand of the letter
pBt on the left jaw, the same shall be taken
as prima-facie evidence in any Court of com-
petent jurisdiction, that such person knew
that said cattle was infected with Bang's
Disease."
The purpose of the above statutes is to help
protect the cattle industry and the public from the r&v,-
ages of the spread of tuberculosis and Bang's Disease.
They are enacted in the exeraise of the police power of
the State and even though the rights of individuals are
curtailed to some extent, the action will not be ques-
tioned except where the exercise of the power is clearly
unreasonable and arbitrary. City of West University Place
v. Ellis, 134 Tex. 222, 134 S.W.2d 1038 (1940). When any
law has the effect to protect the public health or to pre-
vent or minimize economic waste in such an industry as
that of stock raising in this State, it IS for the pub110
hon. D. A. Davidson, page 4 (v-1372) l
welfare and benefit of the people of this State. Weal v.
Boon-Scott, 247 S.W. 689 (Tex. Civ. App. 1923); 39 Tex.
Jur. 377, Stook Iaws, Sec. 62.
Before the passage of such statutes any per-
son could adopt, use, and record the letters 'T" and
%", to be placed on the left jaw of their animals,
as individual holding brands under Article 6890, V.C.S.,
whloh provides as follows:
"Every person who has cattle, hogs,
sheep or goats shall have an ear mark and
brand differing from the ear mark and
brand of his neighbors, which ear mark
and brand shall be recorded by the county
clerk of the county where such animals
shall be. No person shall use more than
one brand, but may record his brand tn as
many counties as he deems necessary.
However, since the Legislature has enacted
Articles1525b, Section 14, and 1525d, Section 1, V.P.C.,
designating and settingapart the letters "T" and %" for -
use as brands set out therein, we 'areof the opinion
that these provisions Impose an exception under Article
6890 above or a repeal by implication of so much of that
part of Article 6890 as would allow persons to use such
designated letters as holding brands, and that persons
no longer can legally use such letters on the left jaw
of animals as holding brands. To hold otherwise would
result in considerable confusion in the enforcement of
the statutes designed to protect the cattle raising in-
dustry and the public welfare of the people of this
State. The use of the msrkings for diseased animals
is clearly intended to be exclusive and their use for
other purposes is unlawful.
39 Tex. Jnr. 137, Statutes, Section 73, pro-
vides:
'Although it contains no repealing
clause, a new enactment abrogates any
former act on the same subject, with
which It olearly and manifestly conflicts,
to the extent of the inconsistbncy or re-
pugnancy between the two. This consti-
tutes a repeal by implication, or, more
properly speaking, by necessary implica-
tion."
Hon. D. A. Davidson, page 5 (V.-1372)
.
Also see 1,Sutherland, Statutory Construction
(3rd Ed, 1943) 461, Section 2012.
It is pointed out that no statute literally
prohibits the use of ,thebrands described In Articles
1525b, Section 14, and 1%5d, Section 1, V.P.C., for
purposes other than to Identify diseased cattle. How-
ever, we believe that,such prohibition exists by neces-
sary Implication when the mechanics set up for effect-
ing the purpose of such statutes are considered.
The repugnancy here involved is only as to
the use of the letters 'T" and %" on the left jaw,
and since the Legislature has set them apart for a
designated use In the interest of the industry and
the public, we hold that no person can legally con-
tinue to use such letters on the left jaw as a holding
brand under Article 6890, V.C.S., even though such per-
son had recorded such letters before the enactment of
Articles 1525b, Section 14, and 1525d, Section 1, V.P.C.
This opinion is limited strictly to the legal-
ity of such continued use of the designated letters by
such owners. We express no opinion as to the legal
consequences of a continuation of the use of such mark-
ings in an illegal manner. However, self-interest
should sufficiently discourage their use by cattle
owners as private brands.
SUMMARY
Individual owners cannot legally con-
tinue to use the letters "T" or 'B" on
the left jaw of their cattle as holding
brands In view of Articles 1525b, Section
14, V.P.C. (Acts 4ist Leg., 1st C.S. 1929,
ch. 52, p. 114), and 1525d, Section 1, V.P.C.
(Acts 45th Leg., R.S. 1937, ch. 431, p. 875,
as amended, Acts 50th Leg., R.S. 1947, oh.
262, p. 461), which provide for the use of
the same letters on the left jaw of cattle
Hon. D. A. Davidson, page 6 (V-1372).
as brands for cattle having tuberculosis
or Bang's Disease.
Yours very truly,
APPROVED: PRICE DANIEL
Attorney General
Ned McDaniel
State Affairs Division
Charles D. Mathews -Clinton Foshee
First Assistant Assistant
CF:jmc
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