Burt v. Arkansas Livestock and Poultry Com'n, 82-185

• Decision Date: 24 January 1983
• Docket Number: No. 82-185,82-185
• Citation: 278 Ark. 236,644 S.W.2d 587
• Parties: Joe BURT, Appellant, v. ARKANSAS LIVESTOCK AND POULTRY COMMISSION, Appellee.
• Court: Arkansas Supreme Court

Page 587

644 S.W.2d 587

278 Ark. 236

Joe BURT, Appellant, v.ARKANSAS LIVESTOCK AND POULTRY COMMISSION, Appellee.

No. 82-185.

Supreme Court of Arkansas.

Jan. 24, 1983.

Walters, Davis & Cox, Greenwood, for appellant.

Steve Clark, Atty. Gen. by Roger W. Giles, Asst. Atty. Gen., Little Rock, for appellee.

PURTLE, Justice.

The chancellor issued a mandatory injunction which required appellant to assemble his cattle for the purpose of testing for brucellosis by the Arkansas State Livestock and Poultry Commission.The injunction was stayed pending this appeal.

On appeal appellant contends the statutes and regulations involved herein are unconstitutional inasmuch as they deny him due process and equal protection of the law.We hold that the statutes and regulations do not deny appellant due process or equal protection either on their face or as applied in the case now before us.

The facts of this case disclose that the Arkansas Livestock and Poultry Commission determined that some cattle in Franklin County had contracted brucellosis.Therefore, the commission declared Franklin County to be an area test county.Pursuant to that order appellant was ordered to assemble his cattle for testing on a specific date.He refused to assemble his two herds claiming that the commission was acting in an unconstitutional manner.Appellant's herds are the only ones in the county which have not been inspected.

The appellant argues the statutes and regulations are violative of due process by failing to provide for a hearing on the matter of declaring a county to be a test area and in that the decision to test lies solely with the commission.One result of a positive test is that the animal is branded and ordered disposed of immediately.Diseased animals are usually sold at nearby auction barns.Such cattle are safe for human consumption.The owner receives the sale price and also is paid a certain sum by the United States Department of Agriculture.It is urged that a minimum requirement of due process requires reasonable notice and an opportunity to be heard.We agree with this argument.Public hearings were held on the statutes prior to their enactment and implementation.Admittedly, no notice was given nor were local hearings held in Franklin County before the commission employees commenced testing cattle.

Ark.Stat.Ann. § 78-434(Repl.1981) provides:

(a) Whenever the Livestock Sanitary Board[Arkansas Livestock and Poultry Commission] shall declare a county in this State to be a Brucellosis control area, the Board [Commission] shall proceed to conduct such tests and enforce such reasonable rules and regulations as may be necessary to qualify said county or certification or re-certification as a Modified Certified Brucellosis free county as outlined in the uniform rules and regulations of the United States Department of Agriculture.A county may be certified as a Brucellosis free area when not more than one per cent (1%) of cattle and not more than five per cent (5%) of cattle herds are positive to the official agglutination test.

(b) Whenever seventy-five per cent (75%) or more of the counties of this State have been certified by the Livestock Sanitary Board[Arkansas Livestock and Poultry Commission] as Brucellosis free areas, all other counties not so certified shall automatically become Brucellosis control areas.

Ark.Stat.Ann. § 78-435(Repl.1981) states:

In order to carry into effect the provisions of this act[§§ 78-433--78-435], the Livestock Sanitary Board[Arkansas Livestock and Poultry Commission] may make such rules and regulations and require such reports and records as may be necessary.

We have upheld the testing of cattle by the state in the case of State, Ex Rel. Hale, Prosecuting Attorney v. Lawson, 212 Ark. 233, 205 S.W.2d 204(1947).The language in Lawson dealt with what was then called "Bangs disease" which is now referred to as brucellosis.Whichever name is applied is of no moment as cattle sometime transmit the disease to humans in a form known as undulant fever.Certainly, as we held in Lawson, the state may exercise its powers to safeguard the health, safety and welfare of its citizens.There we stated:

We find and hold that the regulation that reactors be segregated and be so branded as to indicate that they were found to be reactors is not an unreasonable or arbitrary rule.

* * *

Upon the whole case we conclude that the regulations of the State Board of Health are reasonable and a valid exercise of the state's police power, and that a proper method to enforce them is to prevent the sale of milk produced in their violation.

If any individual owner is to be allowed the right to refuse to allow his cattle to be inspected and/or vaccinated then our laws and regulations may as well never have been enacted.The only manner by which the disease may be eradicated is by such enactments.

The Texas Court of Appeals considered the same question in the case of Nunley v. Texas Animal Health Commission, 471 S.W.2d 144(Tex.Civ.App.1971).The owner in Nunley argued that the Texas brucellosis program (very similar to the Arkansas program) amounted to a taking of property without just compensation.He had been ordered to pen his cattle for testing and if any were found to have the disease they must be sold for slaughter or otherwise...