Asbell v. Edwards

• Decision Date: 09 November 1901
• Docket Number: 12,378
• Citation: 66 P. 641,63 Kan. 610
• Parties: B. F. ASBELL v. A. F. EDWARDS
• Court: Kansas Supreme Court

66 P. 641

63 Kan. 610

B. F. ASBELL v. A. F. EDWARDS

No. 12,378

Supreme Court of Kansas

November 9, 1901

Decided July, 1901.

Error from Labette district court; A. H. SKIDMORE, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TEXAS FEVER -- Seizure of Cattle by Sheriff. A sheriff acting under section 7091, General Statutes of 1899 (Gen. Stat. 1901, § 7439), being a portion of the act for the protection of cattle against Texas fever, can seize and quarantine cattle only on a "complaint" made to him that such cattle are capable of communicating, or liable to impart, fever, and a communication addressed to him which merely informs him that the live-stock sanitary commission requests him to quarantine certain cattle is not a complaint and does not constitute a justification to him, when sued in replevin for the cattle.

2. TEXAS FEVER -- Jurisdiction of Live-stock Sanitary Commission. The live-stock sanitary commission is a body of special and limited jurisdiction, and in the quarantining of cattle to prevent the spread of disease is authorized to proceed in a summary manner, and not according to the ordinary course of judicial procedure. Its acts, therefore, are to be confined strictly within the limits of the jurisdiction conferred; and when the record of its proceedings ordering the quarantining of cattle fails to show the existence of the facts which alone will authorize the making of the order, such order does not constitute a justification for any action taken under it.

Nelson Case, for plaintiff in error.

W. S. Hyatt, for defendant in error.

DOSTER C. J. CUNNINGHAM, POLLOCK, JJ., concurring.

OPINION

DOSTER, C. J.:

This was an action of replevin of cattle and for damages for their detention. The defense was that the defendant was the sheriff of the county, and that he first took and detained the cattle under the live-stock quarantine laws of the state, by virtue of a complaint made to him that the animals were believed to be capable of communicating, or liable to impart, Texas fever, and that he subsequently continued the detention under an order of the livestock sanitary commission, made in pursuance of the said quarantine laws. Judgment went against the plaintiff, to reverse which he has prosecuted error to this court.

The statute under which the defendant, the sheriff, assumed first to take and hold the cattle is section 7091, General Statutes of 1899, which reads as follows:

"It shall be the duty of any sheriff, under-sheriff, deputy sheriff or constable within this state, upon complaint made to him by any citizen of the state, or otherwise having notice or knowledge that there are within the county where such officer resides cattle believed to be capable of communicating or liable to impart the disease known as Texas, splenic or Spanish fever, to forthwith take charge and restrain such cattle under such temporary quarantine regulations as will prevent the communication of such disease, and make immediate report thereof to the live-stock sanitary commission; and such officer shall keep said cattle in custody as aforesaid until released by order of said live-stock sanitary commission.

In assumed compliance with this statute, one McCunningham presented to the sheriff the following paper:

"U. S. DEPARTMENT OF AGRICULTURE.

BUREAU OF ANIMAL INDUSTRY.

LOCAL OFFICE.

"COFFEYVILLE, KAN., October 11, 1898.

"To the Sheriff or any Deputy Sheriff of Labette County, Kansas:

"By the authority of the live-stock sanitary commission of Kansas, you are requested to quarantine the premises of B. F. Asbell, in township 34, range 21, Labette county, Kansas, together with all cattle thereon.

Yours truly,

DAN. MCCUNNINGHAM,

Live-stock Agent in B. of A. I."

Upon receipt of this paper the sheriff seized and quarantined the plaintiff's cattle, and in the action subsequently brought against him relied on it as a justification, so far as the seizure and the earlier period of detention of the animals were concerned.

The statute above quoted seems to authorize the quarantining of cattle by a sheriff upon complaint made to him by a citizen that such cattle are capable of communicating or liable to communicate fever, and likewise seems to authorize such action if the officer otherwise has notice or knowledge of cattle capable of communicating or liable to communicate fever. In this case the sheriff justified on the paper, and not on his knowledge or on notice otherwise received; hence we are concerned only with the validity of the communication on which he acted. In our judgment, the communication constituted no justification to him. The statute authorizes the sheriff to act only upon complaint made to him, and the paper quoted is not a complaint. A complaint is "a form of legal process which consists of a formal allegation or charge against a party, made or presented to the appropriate court or officer, as for a wrong done or a crime committed." ( State v. Dodge County, 20 Neb. 595, 31 N.W. 117.) The term "complaint" is not always limited to charges of crime or wrong, and it may be that, as used in some statutes, it comprehends oral as well as written allegations, but, whenever used, it means the making of a statement of fact as the basis for the taking of legal action. The communication to the sheriff in this case did not contain any statement of fact whatever. It did not inform that officer that the plaintiff's cattle were capable of communicating or were liable to impart fever. It was a mere notification that, by the authority of the live-stock sanitary commission, he, the sheriff, was requested to quarantine the plaintiff's cattle. This could not legally suffice to invoke the action of that officer. The statute is a very summary one. It authorizes the arbitrary seizure and detention of the citizen's property, without trial of the rightfulness of such action, and provisions immediately following the one above quoted charge upon the property impounded a lien for the expense of withholding it from the owner. The inflexible rule is that such statutes are to be strictly construed and the power conferred to be nowise exceeded. The authorities hereafter cited in support of the next proposition also support this.

The defendant, after holding the cattle in quarantine for several days, received, and thereafter acted under, the following paper as his authority for continuing the detention of the animals:

STATE OF KANSAS.

OFFICE OF LIVE-STOCK SANITARY COMMISSION.

"John Bryden, Chairman, Eureka, Kan.

Taylor Riddle, Secretary, Marion, Kan.

J. B. Beal, Grainfield, Kan.

"COFFEYVILLE, KAN., October 21, 1898.

"WHEREAS, The sheriff of Labette county did, on the 11th day of October, A. D. 1898, temporarily quarantine, because of the alleged infection of Texas fever, the cattle and premises of B. F. Asbell, situated in Richland township, the same being the east half of section 18 and northwest quarter section 17, township 34 south, of range 21 east, in Labette county, Kansas; and said sheriff having duly notified this commission of said quarantine and infection, and this commission having examined into the matter: now, therefore,

"To A. F. Edwards, Sheriff of said County, greeting: You are hereby ordered by this commission to hold in safe quarantine all the cattle and the premises of B. F. Asbell, here above mentioned, in Labette county, Kansas, and to allow no cattle to be taken from said premises. And you are further ordered to notify the said Asbell in writing of this quarantine, and also post notices thereof warning the said Asbell, and all others, not to violate this order, under the penalties of the law.

J. B. BEAL.

Member Live-stock Sanitary Commission."

Neither upon oral argument nor in printed brief was any specific statutory authority for the issuance of the above precept pointed out. There are, perhaps, three sections under which a claim of authority to issue it may be made. They are as follows:

"Whenever the live-stock sanitary commission shall determine that certain cattle within the state are capable of communicating or liable of imparting Texas, splenic or Spanish fever, they shall issue their order to the sheriff or any constable of the county in which said cattle are found, commanding him to take and keep such cattle in his custody, subject to such quarantine regulations as they may prescribe." (Gen. Stat. 1899, § 7092; Gen. Stat. 1901, § 7421.)

". . . It shall be the duty of any member of said commission, upon receipt by him of reliable information of the existence among the domestic animals of the state of any malignant disease, to go at once to the place where any such disease is alleged to exist and make a careful examination of the animals believed to be affected with any such disease and ascertain if possible what if any disease exists among the live-stock reported to be affected, and whether the same is contagious or infectious, or not; and if such disease is found to be of a malignant contagious or infectious character, he shall direct the temporary quarantine and sanitary regulations necessary to prevent the spread of any such disease." (Gen. Stat. 1899, § 7117; Gen. Stat. 1901, § 7430.)

"If the member of the commission examining the place where such disease is supposed to exist shall be of the opinion that the exigencies of the case require, he shall immediately convene the commission at such place as he may designate; and if upon consideration of his report the commission shall be satisfied that any contagious or infectious disease exist of a malignant character, which seriously threatens the health of domestic animals, they shall proceed at once to the infected district, ascertain and determine the premises or grounds infected, and...