Albright v. The Board of County Commissioners of The County of Douglas

• Decision Date: 08 January 1921
• Docket Number: 22,820
• Citation: 194 P. 913,108 Kan. 184
• Parties: C. M. ALBRIGHT, Appellee, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF DOUGLAS, Appellant
• Court: Kansas Supreme Court

194 P. 913

108 Kan. 184

C. M. ALBRIGHT, Appellee, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF DOUGLAS, Appellant

No. 22,820

Supreme Court of Kansas

January 8, 1921

Decided January, 1921

Appeal from Douglas district court; CHARLES A. SMART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LIVE STOCK--Diseased Cattle--Delegation of Official Duties--Who May Inspect Cattle to Ascertain Whether They Are Infected with Tuberculosis. Either a veterinary inspector from the bureau of animal industry of the United States department of agriculture or a person employed by the state live-stock sanitary commissioner, designated deputy state live-stock sanitary commissioner, may inspect cattle in this state for the purpose of ascertaining whether they are infected with tuberculosis, and on a report from either that the cattle are so infected, the live-stock sanitary commissioner may order that the cattle be destroyed or disposed of under the law for the protection of domestic animals.

2. SAME--Diseased Cattle--Legal Method of Appraisement. The owner of cattle infected with tuberculosis, a deputy state live-stock sanitary commissioner, and a member of the board of county commissioners designated by the chairman to act where he is unable to participate, may appraise cattle under section 11084 of the General Statutes of 1915.

3. SAME--No Evidence of Collusion or Fraud. There was no evidence to show collusion or fraud in making the appraisement of cattle.

4. SAME--Diseased Cattle--County to Pay One-half of Appraised Value--Statute Constitutional. Section 11101 of the General Statutes of 1915, requiring the board of county commissioners to pay one-half of the appraised value of cattle infected with tuberculosis, does not violate any provision of the state or Federal constitution.

J. B Wilson, county attorney, for the appellant.

Edward T. Riling, and John J. Riling, both of Lawrence, for the appellee.

OPINION

MARSHALL, J.:

The plaintiff commenced this action to compel the board of county commissioners of Douglas county to pay him $ 5,125, one-half of the appraised value of cattle condemned and sold under the law for the protection of domestic animals, sections 11067-11104 of the General Statutes of 1915, as amended by chapter 12, Laws of 1917. The plaintiff recovered judgment, and the defendant appeals.

The plaintiff owned a number of pedigreed cattle that became infected with tuberculosis. They were inspected, appraised, and turned over to the state live-stock sanitary commissioner. They were sold by him, and the proceeds from the sale were placed with the county treasurer of Douglas county. The commissioner issued a certificate to the plaintiff and reported to the county commissioners the amount that should be raid him, but the county commissioners refused to pay. This action was then commenced.

1. The first complaint made by the defendant is that "there has been no inspection as required by the statute, and by reason of this fact all the subsequent steps in the matter are void and of no effect." A deputy live-stock sanitary commissioner of Kansas examined the cattle, but the abstracts do not disclose that he inspected the cattle for the purpose of ascertaining whether or not they had tuberculosis. The argument made by the appellant implies that he did make such inspection and did ascertain that the cattle were so infected. The contention is that the inspection must be made by the live-stock sanitary commissioner, and that he does not have authority to appoint a deputy to act in his stead in making such inspection. Moore v. Wilson, 84 Kan. 745, 115 P. 548, is cited in support of this contention. This court there said that--

"No statutory authority is given the live-stock sanitary commissioner to appoint a deputy, and the duties imposed on him to inquire and determine whether live stock are afflicted with contagious and infectious diseases of a malignant character, and if found to be so afflicted, to establish a quarantine and make such sanitary and police regulations as are necessary to circumscribe and exterminate the disease, involve judgment and discretion and cannot be entrusted to a deputy or delegated to another." (Syl. P 2.)

The court further said that:

"The general rule is that official duties of a ministerial character may be delegated to another but those requiring the exercise of judgment and discretion cannot, unless specific statutory authority to do so is given." (p. 747.)

In Moore v. Wilson, supra, a deputy live-stock sanitary commissioner inspected the cattle, ordered a quarantine, and posted a notice thereof. This court held that the deputy could not establish the quarantine, and said:

"The duty of deciding whether stock are affected with any disease, whether it is malignant, contagious or infectious, whether it is such as makes it necessary for the stock to be dipped or otherwise treated, or whether it is necessary to kill and destroy them, involves discretion and judgment which should be exercised with caution and wisdom." (p. 749.)

Moore sought to recover damages from the commissioner and his deputy for willfully and wrongfully quarantining Moore's cattle. To reach a correct conclusion it was not necessary to decide that a deputy commissioner did not have authority to inspect cattle to ascertain whether they were infected with a contagious disease. What was there said concerning that matter was said by way of illustration, and the decision must be restricted to the matter that was then under consideration, the power to establish a quarantine.

In the present case a veterinary inspector from the bureau of animal industry of the United States department of agriculture examined the cattle and ascertained that they were infected with tuberculosis. Section 11077 of the General Statutes of 1915 reads:

"That the live-stock sanitary commissioner be and he is hereby authorized and directed to cooperate with the commissioner of agriculture of the United States, or any officer or authority of the general government, in the suppression and extirpation of any and all contagious diseases among domestic animals and in the enforcement and execution of any and all acts of congress to prevent the importation and exportation of diseased animals and the spread of infectious or contagious diseases among domestic animals."

Under that statute the live-stock sanitary commissioner of this state and the bureau of animal industry of the department of agriculture of the United States government were working together. The government officer informed the state livestock sanitary commissioner that the cattle had tuberculosis.

The inspection in this case must be upheld on the authority of Cory v. Graybill, 96 Kan. 20, 149 P. 417, and Bank v. Cloud County, 101 Kan. 37, 165 P. 870. But it is insisted that these cases are in conflict with Moore v. Wilson. Under the rule declared in Moore v. Wilson those duties requiring the exercise of judgment and discretion cannot be delegated to another. In Cory v. Graybill, the appraisement of cattle that had been ordered destroyed was made by an employee, and the court said, "the appraisement may be made by a deputy employed for the purpose by the live-stock sanitary commissioner" (Syl. P 3), and that the appraisement "may be made by a person employed for the purpose by the state live-stock sanitary commissioner at the expense of the state." (p. 29.) Under Moore v. Wilson the deputy is only an employee within the meaning of section 11095 of the General Statutes of 1915, and he cannot legally perform any duty requiring the exercise of judgment and discretion on the part of the commissioner, but he can perform all other duties. The appraisement of cattle, in a limited sense, involves the exercise of judgment in ascertaining their value, but more strictly speaking it requires an exercise of skill and of knowledge. It is not an exercise of judgment for the purpose of determining what is best to do, but is an exercise of skill and knowledge to ascertain a thing that exists. If an appraisement of cattle to ascertain their value can be made by an employee of the live-stock sanitary commissioner, that employee can make an inspection of cattle to ascertain whether they are infected with tuberculosis.

A review of the statutory authority given to the live-stock sanitary commissioner to appoint officers and employ assistants may be profitable. Section 11068 of the General Statutes of 1915, as amended by section 3, chapter 12, Laws of 1917, gives the commissioner authority to "appoint and...