Anderson v. Russell
| Decision Date | 24 June 1936 |
| Docket Number | 7940 |
| Citation | 268 N.W. 386,64 S.D. 436 |
| Parties | ANDREW ANDERSON, Respondent, v. C.A. RUSSELL, Secretary of Agriculture, et al., Appellants. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Minnehaha County, SD
#7940—Affirmed
Walter Conway, Attorney General
B.O. Stordahl, C.J. Delbridge, Special Assistant Attorneys General, Sioux Falls, SD
Attorneys for Appellants.
Louis H. Smith, Sioux Falls, SD
Attorney for Respondent.
Opinion Filed Jun 24, 1936
Respondent in the trial court sought an injunction against the appellants to restrain them from quarantining respondent’s herd of cattle and forcing him to submit such cattle to a tuberculin test by appellants’ agent.
The trial court entered an injunction order, by the terms of which appellants were enjoined “from in any manner quarantining plaintiff’s herd of cattle until it is determined that said cattle are infected with tuberculosis, his farm and premises, and from subjecting his herd to the tuberculin test without his consent to ascertain the existence or non-existence of tuberculosis in said herd, and from interfering with plaintiff’s business or property rights in said herd and farm.”
The order entered by appellants which forms the basis of this litigation is as follows:
“South Dakota Department of Agriculture
“Whereas, The fact has been determined that the contagious and infectious disease known as bovine tuberculosis exists in herds of cattle in South Dakota, and
“Whereas, Cattle originating in South Dakota may not be transported interstate after December 31, 1935, for feeding and breeding purposes without having passed the tuberculin test unless such cattle originate in a modified accredited area, and
“Whereas, Dairy products originating in unaccredited areas may not enter the trade channels for sale in a number of the larger cities, and
“Whereas, Livestock breeders representing the cattle breeders in each of the counties affected, did on November 13, 1935, present a resolution to the Secretary of Agriculture, State of South Dakota, asking for bovine tuberculosis testing in all herds for the establishment of a modified accredited area, and
“Whereas, The South Dakota Department of Agriculture and the United States Bureau of Animal Industry have agreed to cooperatively conduct a campaign of tuberculosis eradication in Aurora, Bon Homme, Brule, Buffalo, Charles Mix, Clay, Davison, Douglas, Hanson, Hutchinson, Jerauld, Lake, Lincoln, McCook, Miner, Minnehaha, Moody, Sanborn, Turner, Union and Yankton Counties, State of South Dakota, in conformity with the Uniform Methods, Rules and Regulations governing the Modified Accredited Area Plan;
“Therefore, The South Dakota Department of Agriculture in accordance with the provisions of sections 8065, 8066, 8067 and 8110 of the South Dakota Session Laws of 1919, and chapter 283 of the Laws of 1925, adopts the following regulations and rules:
“Regulation 1. No cattle shall be shipped, imported, driven, allowed to stray, drift or be otherwise moved into the above described quarantined area, except in accordance with the following rules:
“Rule 1. Cattle that have passed one official tuberculin test.
“Rule 2. Cattle for immediate slaughter may enter the quarantined area to be slaughtered within ten days of such entry and during this ten-day interval they must be kept separate from other cattle.
“Rule 3. Steers, range cattle and semi-range cattle of recognized beef type may enter the quarantined area for feeding and grazing purposes under special quarantine and be confined separately from other cattle on the premises of the owner or on such premises as may be designated in the order of special quarantine.
“Rule 4. Bull calves under six (6) months of age of recognized beef type may enter the quarantined area for feeding and grazing purposes under separate quarantine according to Rule 3, provided such calves are castrated within ten days after arrival at point of destination.
“Rule 5. All cattle other than those described in Rule 1, 2, 3, and 4, must be subjected to an official tuberculin test before entering the above described quarantine area.
“Quarantine: It shall be the duty of the Department of Agriculture to quarantine all farms or places where the owners refuse to submit their respective cattle, or any of them, to the tuberculin test under this order; and under such quarantine, no livestock, livestock products, or any other moveable thing likely to contain infection shall be removed from the premises.
“Penalty. Any owner of cattle in any county, which has come under this Order, who refuses to submit his or her cattle to the tuberculin test, or endeavors to prevent the Department of Agriculture, or its agents, from carrying out the provisions of, or who violates any of the provisions of this Order, shall be guilty of a misdemeanor.
“This quarantine Order shall be in full force and effect on and after the 2nd day of December, 1935.
“Secretary of Agriculture.
This action was presented on an agreed statement of facts, the essentials of which stipulation are as follows:
That appellant C.A. Russell is the duly appointed, qualified, and acting Secretary of Agriculture of South Dakota, and that appellant Dr. T.H. Ruth is the duly appointed, qualified, and acting Director of the Division of Animal Industry of South Dakota; that each of these defendants supervises a large number of deputies and agents; and that all of them purport to act under the laws of South Dakota, and particularly under chapter 10, part 15, Title 6, SD Compiled Laws 1929 (section 8063 et seq.), and under such orders as the secretary of agriculture shall make.
Further, that plaintiff and respondent is, and has been for more than thirty-five years, a resident taxpayer citizen of Minnehaha County, SD, and now owns and operates a farm in said county and state, and a herd of cattle that he has owned since 1918, and “that said herd has been, and is now, free from bovine tuberculosis, according to tests made by a duly licensed, practicing and competent veterinarian of the State of South Dakota, but not in the employ of the defendants, and has not been, and is not now, exposed to said disease by having mingled with or by now mingling with cattle, or coming into contact with cattle, infected with bovine tuberculosis”; that plaintiff has invested large sums of money in said herd of cattle; that they have not been tested by any person or agent under the authority of the defendants herein; that any tests claimed to have been made by plaintiff showing freedom from tuberculosis are not accepted or recognized by the defendants.
That defendant C.A. Russell, under date December 2, 1935, issued the order of quarantine above quoted in full. (This order will hereafter be referred to as “Order A” in this decision.) Further, that by reason of such order defendants claim right to test all herds in this state, including plaintiff’s, for the purpose of ascertaining existence or absence of tuberculosis in such herds, and claim right to quarantine herds, and any part or portion of the state of South Dakota, and did intend to test plaintiff’s herd of cattle to ascertain existence or nonexistence of tuberculosis against his wish and, desire and through compulsion, and would have done so but for the restraining order herein issued, and that defendants claim right to compulsorily test plaintiff’s herd of cattle, and all other herds in the state of South Dakota, to ascertain the existence or nonexistence of bovine tuberculosis.
Subject to an objection of incompetency and immateriality, there follows in the stipulation a long history of the effort of the Bureau of Animal Industry of the United States Department of Agriculture and State Department to eradicate bovine tuberculosis and includes various co-operative agreements between the said departments and the Department of Agriculture of this state. Such history discloses that in July, 1923, there were only seventeen counties in four states certified as modified accredited areas, and that on the 1st of November, 1935, 88 percent, of all the counties in the United States are so certified. That the test for bovine tuberculosis approved by the federal agency is the tuberculin test sought to be used by defendants herein. That under this cooperative program the state of South Dakota, through its Department of Agriculture, has tested 1,554,360 head of cattle, and that out of said number there were found to be 27,639 reactors or cattle found to be tuberculous. That prior to 1935 part of the expenses of the eradication program were paid by the state of South Dakota, and part by the federal government, but that in 1935 the federal government began to defray all of the expenses in connection with such eradication, except some minor incidental expense, and that that was done by reason of the fact that this state had been severely affected by depression and drouth and was not in position to assume the burden of such eradication work. That under such cooperative agreements with the federal departments, it is the purpose of the state agricultural department to proceed to a complete test of all cattle in this state, to the end that it may all be made an accredited area; and that up until September 16, 1935, the testing of herds under such cooperative agreement was conducted on a voluntary basis, except in six counties where compulsory testing was performed under the Area Plan Act (Laws 1925, c. 283), and at that time it became evident that a 100 percent test in South Dakota could not be obtained under the voluntary basis, and therefore on September 16, 1935, the chief of the Bureau of Animal Industry of the Federal Department instructed the cooperative agents who were working in South Dakota to cease their work in such eradication unless a 100 percent test could be obtained, and ordered that...
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