December 12, 1951

lion,D. A. Davidson, Dlrector Livestock Sanitary Commission of

## Terns 3320 ' West Seventh Street FortWorth, Texas Opinion No. V-1372
Re: Legality of cattlemen's using individualholdingbrands which are the same as brands specifiedby law to identifydiseased catDear Mr. Davidson: tle.

Your request for an opinion refers to certain Acts of the Legislaturewhich provide for the brandine of diseased cattle on the left jawwith the letter "T for those with tuberculosis,and the letter "B" for those having Bang's Disease, and then you state as follows:
'In the first of theseActs the letter 'T'is designated for the identificationof cattle found,by recognizedmethods, to be positive reactors to the tuberculin test; and in the secondAct, the letter IBI is designated for the identificationof cattle found to be positive reactors to the recognized test for Brucella Abortus. It has now come before this Department and its field representatives 'chatindividualcattlemen are using the letter IT' in some instance,and the letter IBIin others, as individualholding brands. Investigations further reveal these holding brands are recordedwith the County Clerks of the Countieswherein the owners reside, identlfying thesebrands as havingbeen legally recorded.
"In the instance of the brand ITI,it was found upon Investigationthat some fifteen 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 separateActs of the Legislature have definitely set out and designated the letter ITI,in the Instance of tuberculin reactors, and the letter IBI in the instance of Brucellosia reactors, as a distinct identificationof animals found positive reactors to either of these diseases, as the casemay be, the question then arises as to whether or not individual owners in this State have a legal priority in reoording either of thesebrands as holdingbrands, even though the said recording was done prior to, or since the passage of these separateActs referred to. Can these owners legally continue the use of either of thesebrands as holding brands, even though theActs of the Legislaturebecame effective later than the original recording in some instances? "Thismatter has caused considerable confusion in our fieldwork, as to positive identificationof animalsbearing either of these brands, which by LegislativeAct indicate diseased animals." The pertinentpart of Article 1525b, Section 14,V.P.C., provides:

"All cattle that show a positive reaction when tested for tuberculosisby a veterinarian recognizedby 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 consequentaad serious danger to human life and health. It shallbe the duty of said veterinarian to brand or have branded all of said positive reactors IT'on the left jawwith a hot iron,which letter 'T'shallbe not less than three incheshigh. 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~sion of Texas or an accredited representative of the United States Secretary of Agriculture or an authorized veterinarianmakes an agglutinationblood 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 identifiedanimal or animals have reacted to the test and are affectedby the disease, it shallbe the duty of the said authorized veterinarian or accredited representativeof the Livestock Sanitary Commission within fortyeight (48)hours to brand each reactor or animal affected with the disease on the left jawwith 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 shallhereafter be unlawful for any person to sell or otherwise dispose of any cattle for milk purposeswhen he knows or has reason to believe said cattle are infectedwith Bang's Disease. If any person shall sell or otherwise dispose of any cattle having the brand of the letter pBton the left jaw, the same shallbe taken as prima-facie evidence in any Court of competent jurisdiction,that such person knew that said cattle was infectedwith Bang's Disease." The purpose of the above statutes is to help protect the cattle industryand the public from the r&v,- ages of the spread of tuberculosisand Bang's Disease. They are enacted in the exeraise of the police power 

## of the State and even though the rights of individualsare curtailed to some extent, the action will not be questioned 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 prevent or minimize economic waste in such an industryas that of stock raising in this State, it 

## IS for the pub110hon. 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 person could adopt, use, and record the letters 'T"and %", to be placed on the left jaw of their animals, as individualholding brands under Article 6890, V.C.S., whloh providesas follows:

"Everyperson who has cattle, hogs, sheep or goats shallhave an ear mark and brand differing from the ear mark and brand of his neighbors,which ear mark and brand shallbe 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 Legislaturehas enacted Articles1525b, Section 14, and 1525d, Section 1,V.P.C., designatingand settingapartthe letters "T"and %" for use as brands set out therein,we 'areof the opinion that these provisions Impose an exception underArticle 6890 above or a repeal by implicationof so much of that part of Article 6890 as would allow persons to use such designated lettersas holding brands, and that persons no longer can legally use such letters on the left jaw of animals as holding brands. To hold otherwisewould result in considerable confusion in the enforcement of the statutes designed to protect the cattle raising industry 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, provides: 'Althoughit 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 inconsistbncyor repugnancybetween the two. This constitutes a repealby implication,or, more properly speaking,by necessary implication." -Hon. D. A. Davidson, page 5 (V.-1372)

.

Also see 1,

Sutherland, Statutory Construction (3rdEd, 1943) 461, Section 2012.

It is pointed out that no statute literally prohibits the use of ,the brands described InArticles 1525b, Section 14, and 1%5d, Section 1, V.P.C., for purposes other than to Identifydiseased cattle. However, we believe that,such prohibition existsby necessary Implicationwhen themechanics set up for effecting the purpose of such statutes are considered.

The repugnancyhere involved is only as to the use of the letters 'T"and %" on the left jaw, and since the Legislaturehas set them apart for a designated use In the interestof the industryand the public,we hold that no person can legally continue to use such letters on the left jawas a holding brand under Article 6890,V.C.S., even though such person had recorded such lettersbefore the enactment of Articles 1525b, Section 14, and 1525d, Section 1,V.P.C.

This opinion is limited strictly to the legality of such continued use of the designated lettersby such owners. We express no opinion as to the legal consequences of a continuation of the use of suchmarkings in an illegalmanner. However, self-interest should sufficientlydiscourage their use by cattle owners as privatebrands.

SUMMARY

Individual owners cannot legally continue 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. (Acts4ist 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 cattleHon. D. A. Davidson, page 6 (V-1372).

as brands for cattle having tuberculosis orBang's Disease.

APPROVED:

Ned McDaniel State Affairs Division Charles D. Mathews First Assistant Yours very truly,
PRICE DANIEL Attorney General

-ClintonFoshee Assistant
CF:jmc

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