58 Ill. 254 (Ill. 1871), Yeazel v. Alexander

Citation:58 Ill. 254
Opinion Judge:Mr. Justice Thornton.
Attorney:Mr. C. B. SMITH, Mr. W. D. SOMERS and Messrs. GREEN & WOODS, for the plaintiff in error. Mr. JOHN SCHOLFIELD, Mr. O. B. FICKLIN and Mr. E. L. SWEET, for the defendants in error.
Court:Supreme Court of Illinois

Page 254

58 Ill. 254 (Ill. 1871)




Supreme Court of Illinois, Central Grand Division

January, 1871

Page 255

WRIT OF ERROR to the Circuit Court of Cumberland county; the Hon. HIRAM B. DECIUS, Judge, presiding.

Judgment affirmed.

Mr. C. B. SMITH, Mr. W. D. SOMERS and Messrs. GREEN & WOODS, for the plaintiff in error.

Mr. JOHN SCHOLFIELD, Mr. O. B. FICKLIN and Mr. E. L. SWEET, for the defendants in error.


Mr. Justice Thornton.

Page 256

This is an action on the case, brought to recover damages alleged to have accrued from a violation of an act of the legislature, approved February 27, 1867, and entitled "An act to prevent the importation of Texas or Cherokee cattle into the State of Illinois."

By the first section, it is provided, "That it shall not be lawful for any one to bring into this State, or own, or have in possession, any Texas or Cherokee cattle."

By the second section, it is provided that, "Any person who shall violate the provisions of this act, shall, for every such violation, forfeit and pay into the treasury of the county where the offense is committed, a sum not exceeding $ 1,000, or be both fined and imprisoned in the county jail, at the discretion of the court, though such time of imprisonment shall not exceed one year; and such person or persons shall pay all damages that may accrue to any one by reason of such violation of this act."

The third section provides that the act shall not apply to any Texas or Cherokee cattle on hand at the time of the passage of this act, but that persons having such, shall be compelled to keep them within the bounds of their own premises, or separate from other cattle; and any damage that may accrue from allowing such cattle to run at large, and thereby spreading disease among other cattle, shall be recovered from the owner or owners thereof, who shall be liable to all the pains and penalties as provided for in the second section of the act.

All the counts in the declaration, with the exception of the last, seek to recover damages for owning and having in possession Texas and Cherokee cattle, subsequent to the passage of the act, and which communicated the disease complained of. The last is a common law count, in which a scienter is alleged. The declaration is against four defendants, and the allegation

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of ownership of the diseased cattle, and injury to cattle of plaintiff, is against all. The damages claimed are for joint torts.

It might, perhaps, be inferred from the evidence that two of the defendants had a joint possession of some of the cattle, but it is manifest from the proof that the other two defendants owned their cattle separately, and had no joint ownership or possession with their co-defendants. It is also apparent that the defendants drove their respective cattle over the prairie at different times, so that it is impossible to determine whose cattle communicated the disease.

The judgment in the circuit court was against the plaintiff.

It appears from the evidence that the cattle, the importation and ownership of which are prohibited, have the capacity, in some unknown and mysterious manner, to communicate disease to the native cattle of the State; that certain death follows in from six to eight weeks; that this disease was prevalent in the State, to some extent, prior to the passage of the law; that in 1868 it assumed an epidemic form, and in some localities almost all the native cattle died; that it becomes more virulent in dry and hot weather; that, in the opinion of some of the witnesses, it is not dangerous to import these cattle in the early spring, in winter, and in the fall; and that they thrive while the native cattle are dying around them.

From cotemporaneous history, we gather the knowledge of the capacity of Texas cattle to impart a disease which is surely fatal.

Able and ingenious arguments have been made, urging the unconstitutionality of the law. It is contended that it is in conflict with one of the expressly enumerated powers granted to Congress: "To regulate commerce with foreign nations, among the several States, and with the Indian tribes."

In the view we take, it is not necessary to discuss or decide this question. If the enactment is within the police power of the State, then the constitutional question is not involved.

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Can the law be sustained as a police regulation? Each State has the unquestioned right to pass all laws necessary for the restraint and punishment of crime, the preservation of the public peace, and the health and morals of its citizens. By virtue of this power, the importation and sale of cards, dice, and billiard tables, are prohibited; the traffic in spirituous liquors regulated and suppressed; the vending of lottery tickets, the sale of unwholesome food or drink, and the making or manufacturing of poisonous candies, are made penal offenses.

Blackstone, 4th book, 168, enumerates, as within the powers of government to regulate, "All kinds of nuisances, (such as offensive trades and manufactures,) which, when injurious to a private man, are actionable; when detrimental to the public, are punishable by public prosecution; and particularly the keeping of hogs, in any city or market town, is indictable as a public nuisance. All disorderly inns or ale houses, bawdy houses, gaming houses, stage plays, unlicensed booths, and stages for rope-dancers, mountebanks and the like, are public nuisances, and may, upon indictment, be suppressed and fined;" and the making, keeping or carriage of too large a quantity of gunpowder at one time, or in one place or vehicle, are referred to the same head.

Under this power property may be destroyed, nuisances abated, and goods from a place where a contagious disease is prevalent, may be wholly excluded. Every species of infectious property--every thing manifestly injurious to the public health or morals--may be prohibited or removed. Even the importation of gunpowder, not on account of any qualities of taint, but from its explosive character, may be prevented. All such legislation would be a direct interference with trade, yet the power has never been questioned. It results from the law of self-preservation, which is inherent in every community. It is a right which has never been, and never can be delegated.

The State is under the same obligation, and possesses the same power to protect the property of the citizen from disease and death, as to preserve his morals and health. A State

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powerless so to do, would excite our contempt instead of respect and pride.

It is true, as urged in the argument, that the power is not arbitrary or unrestricted. We can not recognize wholly unrestrained power in this country. We concede, too, that the discretion must be reasonable, and should not be exercised in such manner as to subvert natural and constitutional right. In a case...

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