How Now, Brown Cow?

Texas law and the men who make and keep it have always been unique. In witness to this fact is a legal opinion handed down by the Office of the Attorney General in Austin, Texas, a few years back. The opinion concerned the castration of a farmer's bull yearling by employees of the Agricultural and Mechanical College of Texas after the bull had broken into the pasture of the Dairy Husbandry Department and serviced several cows. "The dairy hands lassoed him and castrated him. He was hot and mad and as a result was found dead in the pasture the next day." The farmer demanded and received $20.00 in payment for the death of the bull. When the College submitted this bill to the Comptroller of Public Accounts for payment, the comptroller asked the Office of the Attorney General for an opinion as to whether this was a proper charge to be paid from State funds. The opinion, slightly edited and abridged, follows:

"It appears that the account has been paid by the A. and M. College out of certain local funds belonging to the college and now desires a warrant on the State Treasurer for a like amount to reimburse local funds.

"From available sources of information it appears that the Agricultural and Mechanical College of Texas, in addition to instructing the youth of Texas in book learning, both ordinary and extraordinary, is engaged in raising pure blooded cattle of various and diverse breeds. The particular department of the college whose duty it is to supervise this beneficient work is the Department of Dairy Husbandry. In order to propagate and rear these finer and better specimens of cattle, it is necessary to have enclosures, corrals, pens, cow lots, and pastures, wherein said cattle may feed on nutritious grasses and inhale fresh air containing a high percent of ozone. All these conveniences have been furnished this institution by the State of Texas.

"The eventful day on which occurred the great tragedy which gave rise to your inquiry, several of these fine heifers owned by the State were in one of the State's pastures. In an adjoining pasture there dwelt an unpretentious bull, just budding into young bullhood. This bull was just a common, ordinary, proletarian bull belonging to the 'common herd.' He could not and did not boast of an illustrious ancestry. He had been born and raised in an unpretentious, unsophisticated manner. He knew nothing of the ways of the world, had never heard of elite society. On this particular morning, he arose early as had been his custom from early youth and, as any well-raised country bull should, 'bellowed a greeting to the dawning sun.' It was a bright September morn. The air was fragrant with autumn flowers, cool and invigorating– just such a morning as is calculated to fill any well-raised, well-fed bull, young or old, with 'pep.' His bellow was wafted on the perfume-ladened autumn breeze to the adjoining pasture. wherein dwelt the well-fed, ever-groomed, sleek and soft-eyed maidens of aristocracy belonging to the State of Texas and particular pride of the Department of Dairy Husbandry. These young 'blue bloods,' or at least some of them, evidently mistook the innocent effervescence of this young bull as an attempt or an invitation to start a flirtation, so from across the way there came an answer, not a deep, bass, unmelodious roar as of distant thunder, but a tremulous, sympathetic, soft, even-toned m-o-o. This young bull had heard many 'moos' before, but none such as this. It seemed as if someone was calling him, yet, being young and unacquainted with the ways of the world, he could not understand. He stood as in a dream. Again the call came. He felt himself being irresistibly drawn in the direction from which this wonderful sound emanated. He answered the call. The flirtation was on. He had not advanced far before he discovered the cause for the peculiar feeling in his breast. There, just across the fence, she stood –a beautiful, young, soft-eyed heifer.

"She advanced to meet him at the fence. An acquaintance was soon formed and a conversation in low tones was held. What was said will never be known unless that beauteous, prize-winning heifer tells the story. But evidently she did not ask for his family tree. If she did, she cared not that he could not boast of any of his progenitors having won blue ribbons. She was in love, and so was he. It made no difference to these young and trusting hearts that they were separated not only by an impassable social gulf but also by a seven-stranded barbed-wire fence. Truly, 'love laughs at locksmiths and knows no bar-(concluded on page 65)Brown Cow(continued from page 19) riers.' It was love at first sight. A scandal was impending, but what cared they? Two hearts beat as one, but the possessor of one stood still while the possessor of the other backed off about twenty paces, summoned all his great strength, and with lowered head made a charge on the fence which alone stood between them and happiness. The fence fell before the impact of the charge, and the bull now stood beside his new-found friend. He was a trespasser against the State of Texas and more particularly against the Department of Dairy Husbandry of the Agricultural and Mechanical College of Texas. But why should he worry? It was a glorious day. He was in a new, a different environment. He was in society. His 'stock' was rapidly advancing. He possessed all that a young bull could desire – a good pasture, heifer friends of undoubted social standing, and last but not least– the State's chaperones of these aristocratic belles were absent. The world was his. He was introduced to other young heifers, all members of this exclusive set, and found favor in the eyes of several of them. In these happy surroundings he was oblivious of the passing of time. The day was spent in fast company. It was a great awakening, a wonderful, an indescribable experience. The world was a different place to live in. But just as he was congratulating himself upon his rapid rise in this brave new world, the unexpected– as it always does– happened.

"There were shouts, cries, curses. The bull was surrounded by the unfaithful guards of the princesses' chamber. He was kicked and beaten, and before he fully realized what had happened, he found himself a prisoner in one of the State's bastilles– an eight-foot corral. Here he was again beaten, cursed, intimidated. And subsequently he was, by employees of the Department of Dairy Husbandry, subjected to great indignities and by force, threats, and fraud compelled to submit to a surgical operation which caused him great physical pain and mental anguish, since it tended to destroy his social standing in the community in which he resided.

"We here take occasion to say that the action and conduct of these said employees of the State who perpetrated this foul and unseemly deed show that they possess hearts that are regardless of social duty and fatally bent on mischief.

"The bull was later released and led back through the breach he had made onto his own premises. When his tormentors had departed and he was alone with his memories, he stood long as if in a trance. His thoughts undoubtedly were on the happenings of that eventful day. Surely 'the way of the transgressor is hard.' He had lived too fast in too short a time. But hours before he seemed to have succeeded in life as well as any young bull whether aristocrat or proletarian could. He had been in full possession of his faculties, both mental and physical, and was the pet and pride of a herd of aristocratic, blue-blooded, silk-stockinged, young society heifers belonging to the great State of Texas. Now, how different and how sad he was. He had been humiliated beyond measure by the treatment that he had received at the hands of the State's employees in the presence of the very same young and winsome heifers in whose eyes he had so recently found favor. He must surely have realized that in his present condition that he could no longer play the bull in society, that by the said operation he had been made fit to serve only as an humble ox. This was the cause of excruciating anguish to his bullship to say nothing of the unceremonious manner in which he changed from Mr.Bull to Mr.Steer, the latter name being personally obnoxious to him.

"That night the stars came out in myriads. The moon shed its mellow rays on that outraged steer, who had been so recently deprived of that part of his anatomy that makes a bull a bull, an act that was committed in violation of the 'due process of law' clauses of both the State and the Federal constitutions. The bull lay once again upon his downy couch. Dew drops gathered upon the end of his tail. With the coming of dawn they glistened in the sunlight like so many diamonds. The steer did not, as the bull had done upon the previous morn, arise to greet the dawning sun. For his grief was more than he could bear, and his sorrow knew no bounds. He refused to be comforted. He partook neither of food nor drink. His thoughts were only of his humiliation and sudden downfall. Thus he languished for several hours before going the way of all the earth. He died of a broken heart without due benefit of clergy. As he passed away, he may have comforted himself with the thought that love's labor may not always be lost.

"Now, the owner of this steer, erst-while bull, has demanded of the proper authorities of the A. and M. College of Texas that he be compensated for the loss of his animal, the value of which was arbitrarily fixed at $20.00.

"You ask if this account is one which may legally be paid out of any current appropriations made by the Legislature to the A. and M. College.

"We think that the correct rule of the law applicable to this case is laid down in 25 Ruling Case Law, pages 407 and 408, and is as follows:

'The rule is well established that a state is not liable for the negligence of its officers or agents, except when such liability is assumed voluntarily by the Legislature. The doctrine of respondent superior does not prevail against the sovereign in the necessary employment of publicagents. Where wrongs are done to individuals by those who are servants of the government, those injured are not remediless, as such persons may be sued as may other citizens for the torts which they commit.'

"In any event, the employees of the college, dairy hands, were not acting within the scope of their employment when they performed the operation which resulted in the death of the bull. The tort was theirs, not the State's. They alone are responsible for their unlawful acts. Perhaps the bull might have survived if the College veterinarian had been consulted to assist or to advise as to the fine points of the operation, but we cannot speculate on that question.

"We can imagine the chagrin and disappointment of the agents of the State when they found this scrub bull in company with its young heifers and saw their hopes and plans for a social career for their wards vanish like a mist before a summer sun, but these blasted hopes cannot be made the basis of justification for their wrongful acts or make the State liable for such tortious acts of its employees.

"It is the opinion of this Department, and you are so advised, that the account submitted cannot be legally passed to voucher by your Department."