We have again gone carefully over the provisions of our statute involved in this case. The motion for rehearing on behalf of the State, urges that we misconstrued the purpose and effect of the proclamation of the Governor, and that same did and could have no effect on tick eradication in a county which had voted in favor of such proposition at a local option election held for that purpose. As we understand the Act of 1917 providing for tick eradication, it divided the entire State of Texas into three zones, or districts for tick eradication purposes, and provided a specific time when the law should become applicable to each zone, regardless of whether the territory comprising the same, or the various counties therein, had theretofore voted to take up the work of tick eradication or not. It is also provided by Section 7 of said Act, in effect, that any county in any zone need not wait for the statutory time fixed when the law should become effective throughout the given zone, but by its own voluntary vote, taken in accordance with the manner therein provided, might hasten the coming application of the law to itself by such local option election. This, as we understand *Page 638 it, is the only effect of such election; it amounts to an invitation by the given county holding the election, to the Livestock Sanitary Commission, to at once begin the work of tick eradication in such county. We also understand that when the time fixed by statute arrives, the authority is confided in the Commission to notify the Governor, and certify to him a list of those counties in the respective zones, which were not freed from ticks, or released from quarantine, and upon receipt of such notice, the Governor should issue a proclamation proclaiming a quarantine in and around such counties, and that all such counties should then take up the work of tick eradication, and be subject to the provisions of said Act, without regard to whether they had held elections. In other words, when the time fixed by statute for the going into effect of this law, arrived — it was the duty, power, and province of the Commission to furnish to the Governor a list of the counties in such zone which were not freed from ticks and released from quarantine. Declared free from ticks and released from quarantine by whom? There is but one answer. The only authority to declare any county freed of ticks and released from quarantine under the tick eradication law, was the Livestock Sanitary Commission of Texas. That there had been a local option election, amounting only to an invitation to the said Commission to take up the work of tick eradication in said county, would not change, alter, or affect the right and power of said Commission to declare any given county in said zone freed from ticks and released from quarantine; or, on the other hand, to certify to the Governor that it was not so situated. It is contended that such power extended only to the release from those provisions of the quarantine which affected the movement of the animals coming under the terms of the law, but the contention is more plausible than sound. No distinction or differentiation in kinds and characters of quarantine appears in said Act. Section 9, in terms provides for quarantine for tick eradication purposes. Section 10 provides a penalty for one who shall move cattle, etc., in the territory quarantined under the provisions of Section 9, except in accordance with the rules and requirements provided by said Commission. We do not think the question of an election vel non affects the power of said Commission to declare a given county freed from ticks and released from quarantine. The only question that troubles us is whether our construction of the effect of Proclamation No. 12 was correct.
A closer scrutiny of said proclamation reveals that while the opening paragraph thereof recites in terms that the Federal Bureau of Animal Industry had released from fever tick quarantine, all counties named therein, effective December 1, 1918; and the Livestock Sanitary Commission has released all the premises, cattle, etc., in such territory, from quarantine, except such as may be placed under local quarantine on and after December 1, 1918; — that this confusing statement is but the preamble to the effective proclamation which *Page 639 follows, and that the succeeding paragraphs of the proclamation proper, contain reference to release from that character of quarantine which relates to the movement only of the quarantined stock. We have, therefore, concluded that while said proclamation is susceptible of a different construction, the real effective purpose thereof is confined to a release of cattle in the territory mentioned in said proclamation from quarantine, only in so far as the same forbade the movement of such cattle, etc. So concluding, we feel it to be our duty to modify our former opinion to that extent. Since the rendition of that opinion we have held in the case of ex parte Leslie that the notices provided for by this Act, as it existed when the instant case was filed, were too indefinite to be effective, and that portion of the law was invalid. For the same reason as given in the Leslie case, 87 Tex.Crim. Rep., this case will be reversed and the cause remanded for a new trial.
Reversed and remanded.
ON REHEARING. October 13, 1920.