Stockwell v. State

• Citation: 221 S.W. 932
• Decision Date: 12 May 1920
• Docket Number: (No. 3234.)
• Parties: STOCKWELL v. STATE.
• Court: Supreme Court of Texas

221 S.W. 932

STOCKWELL v. STATE.

(No. 3234.)

Supreme Court of Texas.

May 12, 1920.

Error to Court of Civil Appeals, First Supreme Judicial District.

Suit by the State of Texas, acting through Fred W. Davis, Commissioner of Agriculture, against William R. Stockwell. Judgment for plaintiff was affirmed by the Court of Civil Appeals (203 S. W. 109), and defendant brings error. Judgments of Court of Civil Appeals and district court reversed, and cause remanded to district court.

Elmer P. Stockwell, of Angleton, for plaintiff in error.

W. A. Keeling, Asst. Atty. Gen., and Wm. Burkhart and Munson & Williams, all of Angleton, for the State.

PHILLIPS, C. J.

The suit was by the State through the Commissioner of Agriculture to have declared as a nuisance and abated a certain citrus trifoliata hedge belonging to the defendant Stockwell and situated on his premises in Alvin, Texas, and to enjoin him from in any manner interfering with the destruction of the hedge by the Commissioner or his deputies or agents.

It was asserted in the petition: That the citrus trees in the hedge were all badly infected with citrus canker, a disease alleged to be contagious and destructive to citrus fruit trees. That under the law it is the duty of the Commissioner to destroy all such trees found to be infected with citrus canker and thereby eradicate the disease so as to protect and save the uninfested trees, hedges and orchards within the State. That he had caused the defendant's hedge to be inspected by his deputies and assistants who were learned in the matter of citrus canker and other diseases of citrus fruit trees, and who found it to be badly infected with such canker. That the defendant was thereupon notified to destroy the hedge. That in the manner provided by law he appealed from the decision of the Commissioner's inspectors to the Commissioner, who heard the appeal, all parties at interest being present, and thereafter rendered his judgment sustaining his inspectors and ordering the hedge destroyed. That in pursuance of this order or judgment the Commissioner demanded of the defendant that he destroy his hedge, which the defendant refused to do or to permit the Commissioner's inspector to enter upon his premises for the purpose of destroying it.

It was further alleged that the hedge was of no value to the defendant and would die within a few years from the effect of the canker; and that its absolute destruction was the only way to suppress the disease and preserve other citrus trees and orchards from its infection.

The defendant entered a general denial of all these allegations. He pleaded that the property on which the hedge was situated was his homestead and had been for many years. He denied that all the trees in the hedge were badly infected with citrus canker, though admitting that some of the twigs and foliage on some of the trees were so infected. He denied that other citrus trees and orchards were becoming infected from his trees, or that citrus canker could be communicated to other trees and orchards a great distance away. He denied that his hedge constituted a nuisance, or that it was necessary to destroy it in order to eradicate the canker, alleging that such leaves and twigs on those of the trees that were infected with the canker could be pruned and by that means or proper spraying the canker be effectually controlled, rendering it wholly unnecessary to destroy his entire hedge. He further alleged in his answer that the destruction of his hedge would not eradicate citrus canker in the vicinity of Alvin nor appreciably affect its prevalence, in that it existed upon all citrus trees of every character, not only in the vicinity of Alvin, but in all the orange growing counties of the State, and for the further reason that many wild trees, shrubs, and plants were likewise infected with it, and were contiguous to all the farm lands in such counties. That the Commissioner and his inspectors and agents were making no effort to destroy it upon such wild trees, shrubs and plants, or upon all the citrus trees in orange growing counties.

He further alleged that the hedge was of great value to him; that it served the purpose of a fence and windbreak, and furnished seed from which the stock on which satsuma oranges are grafted, is grown. That the Commissioner in seeking the destruction of his hedge was making an exception of his property, in that he was not attempting to destroy the trees of other persons infected with the canker.

That on the hearing before the Commissioner that official openly assumed the attitude of a party adverse to the defendant, was unfair and partial and wholly disqualified to render a fair and impartial judgment, and was attempting to unjustly exercise an arbitrary authority.

He further denied that citrus canker was a seriously injurious tree or plant disease, and alleged that the trees in his hedge had never been injured by it to the extent that they were infected with it, but were in a healthy and vigorous condition, and had had a vigorous growth from year to year, and would continue to so grow and bear fruit to his profit.

He alleged that the action of the Commissioner was unreasonable and oppressive; that in the arbitrary exercise of his authority he was subjecting the defendant to discrimination, whereby he was being denied the equal protection of the laws and his property threatened with destruction without the due process of the law.

A demurrer to the answer, interposed by the plaintiff, was sustained, and the defendant denied any character of hearing on the facts. An injunction was thereupon granted in the terms prayed for by the Commissioner. On the defendant's appeal from this decree, it was affirmed by the honorable Court of Civil Appeals.

The statute under which the Commissioner acted, and the trial court proceeded, is Article 4459. It begins by declaring that no person shall knowingly or willfully keep certain named fruit trees affected with certain named contagious diseases, namely, "yellows," "nematode galls," "crown galls" and "root rot," etc.; any tree, shrub or plant infected with "San Jose scale," or other insect pest dangerously injurious to or destructive of trees, shrubs or other plants; nor any orange or lemon trees, citrus stock, cape jasmines, or other trees, plants or shrubs infested with "white fly," "or other injurious insect pests or contagious diseases of citrus fruits."

Citrus canker is not specified in the article as a contagious disease of citrus fruits. If it falls within the condemnation of the statute, it is in virtue of the general clause italicized.

Every such tree, shrub or plant, the article continues, shall be "a public nuisance," which it shall be the duty of the Commissioner of Agriculture, or his representatives, to abate. If the Commissioner, or his inspectors, shall determine upon inspection that any such trees, etc., shall be destroyed, the owner, it is provided, shall be notified and thereupon it is required, that within ten days, he remove and burn them. If in the judgment of the Commissioner, or his representatives, the trees, etc., can be treated with sufficient remedies, the owner is required to administer such treatment under the direction of the...