Carstens v. De Sellem

• Decision Date: 17 December 1914
• Docket Number: 12246.
• Citation: 82 Wash. 643,144 P. 934
• Parties: CARSTENS et ux. v. DE SELLEM et al.
• Court: Washington Supreme Court

144 P. 934

82 Wash. 643

CARSTENS et ux. v. DE SELLEM et al.

No. 12246.

Supreme Court of Washington

December 17, 1914

Department 1. Appeal from Superior Court, Yakima County; E. B. Preble Judge.

Action by J. H. Carstens and wife against F. E. De Sellem and others. From a judgment dismissing the action, plaintiffs appeal. Affirmed.

McAulay & Meigs, of North Yakima, for appellants.

Harold B. Gilbert, of North Yakima, for respondents.

GOSE J.

This is an action for damages for cutting down and destroying certain pear trees, and for cutting, mutilating, and injuring other pear trees, upon premises belonging to the plaintiffs in Yakima county. The defendants answered, admitting the plaintiffs' ownership of the trees and the soil upon which they grew, and admitting that they cut down and destroyed certain pear trees, and that they cut out certain portions of other pear trees. They allege affirmatively by way of justification that the defendant De Sellem, at and before the dates mentioned in the complaint, was the duly appointed, qualified, and acting inspector of and for the department of agriculture for the state of Washington; that in July, 1913, the assistant commissioner of agriculture issued a bulletin declaring that pear blight is a disease and pest injurious to the horticultural interests of the state; that the pear trees in question at the time of the cutting were, and for a year prior thereto had been, affected with pear blight; that pear blight is a contagious disease affecting pear, apple, and other fruit trees; that many of the trees in plaintiffs' orchard were practically destroyed by such blight, and others were more or less affected by it; that on the 2d day of March, 1914, the defendant De Sellem as such inspector served a notice upon the plaintiffs, stating that their orchard upon certain lands described in the notice (the trees in question) was infected with fire blight which had been declared by the assistant commissioner of agriculture to be a disease injurious to the horticultural interests of the state, and requiring them 'to pull or cut out all trees or parts of trees affected which cannot be properly disinfected, and destroy same by burning; to disinfect all diseased parts that can be properly disinfected.' The notice required them to commence work within five days from the date of the notice and to complete it by March 17th. It is further alleged that, at the time of serving the notice, the defendant De Sellem gave the plaintiffs a copy of the bulletin referred to in the notice that the plaintiffs failed, neglected, and refused to do any of the things mentioned in the notice within the time therein stated or at all, and that the defendant De Sellem in his official capacity, with the assistance of the other defendants, on the 23d day of March, 1914, entered upon the plaintiffs' premises and cut down the trees mentioned in plaintiffs' complaint. It is further alleged that each and every one of such pear trees was infected with pear blight to such an extent as to render it incapable of disinfection, and to such an extent that the infection could not be eradicated by any methods known to the science of horticulture; and that the defendants cut branches and limbs from various other trees on plaintiffs' premises which were infected with such blight and burned the same: 'that no tree was cut out and no branch from any tree was cut away save and except such as was necessary to preserve the health of the surrounding trees, and save and except such limb or tree could not be saved by disinfection.' A demurrer to the new matter pleaded in the answer was interposed by the plaintiffs and overruled. The plaintiffs electing to stand upon the demurrer and declining to plead further, a judgment was entered dismissing the action. Plaintiffs have appealed.

The first point argued is that the statute (Laws 1913, p. 196 et seq.) is unconstitutional in that it violates section 19 art. 2, of the Constitution, which provides that no bill shall embrace more than one subject, and that shall be expressed in the title. The title of the act is as follows:

'An act creating a department of agriculture, providing for the organization and administration thereof, defining the powers and duties of its officers and employés in relation to agriculture, horticulture, live stock, dairying, state fairs, foods, drinks, drugs, oils, and other kindred subjects, providing penalties for the violation thereof, and repealing certain acts and parts of acts.'

The first section of the act provides that there shall be a department of the state government known as the 'department of agriculture,' which shall be charged with the administration of the laws relating to agriculture, horticulture, and other defined industries. Section 2 provides that the office of commissioner of agriculture is hereby created. Other sections of the act define the powers and duties of the commissioner of agriculture. The purpose of the act is clearly single, viz., to create a department of agriculture and define its powers and duties. The fact that duties which do not strictly appertain to agriculture are imposed upon the department does not make the act double in its scope and purpose. Aylmore v. Seattle, 48 Wash. 42, 92 P. 932; Seattle v. Barto, 31 Wash. 141, 71 P. 735; Marston v. Humes, 3 Wash. 267, 28 P. 520; State ex rel. Lindsey v. Derbyshire, 79 Wash. 227, 140 P. 540; State v. Asotin County, 79 Wash. 634, 140 P. 914; Maxwell v. Lancaster, 143 P. 157.

In Marston v. Humes it is said that:

'* * * So long as the title embraces but one subject it is not inimical to such constitutional provision, even although the subject as thus used contains any number of sub-subjects.'

It is further said that an act to provide a code of civil procedure would not be invalid although innumerable sub-subjects could be carved out of it, and that 'the Legislature may adopt as comprehensive a title as it sees fit and, if such title when taken by itself relates to a unified subject or object, it is good, however, much such unified subject is capable of division.'

In State v. Asotin County we said:

'It is sufficient if it indicates to an inquiring mind the scope and purpose of the law. The title may be general and will include all matters incidental and germane thereto.'

It is next argued that the act is violative of section 37 of article 2 of the Constitution, which provides:

'No act shall ever be revised or amended by mere reference to its title, and the act revised or the section amended shall be set forth at full length.'

The act does not purport to be amendatory. It is an independent act, directly repealing certain enumerated sections. It is true that the act imposes certain duties upon the commissioner which by other statutes are imposed upon other officers. But we do not think this fact renders the act obnoxious to the provision of the Constitution under review. Spokane Grain & Fuel Co. v. Lyttaker, 59 Wash. 76, 109 P. 316. That case limits the scope of Copland v. Pirie, 26 Wash. 481, 67 P. 227, 90 Am. St. Rep. 769, relied upon by the appellants. In the Lyttaker Case we said:

'The Legislature may embody all legislation relating to a given subject in a single act, or it may cover the subject by a succession of acts. This is entirely a matter of legislative discretion over which we can assume no control.'

In this case Judge Rudkin collates and reviews the authorities at length. The case may be read with profit by those interested in the subject.

It is argued that the act is in contravention of the due process of law clause of the Constitution: (a) Because it does not adequately provide for a review of the decision of the inspector, and (b) because five days' notice was insufficient.

The answer to the first objection is found in section 9 of the act. It provides that any person aggrieved by any order or act of any assistant or inspector in the department of agriculture may appeal from such findings, order, or act to the commissioner, who shall forthwith proceed to hear and determine such appeal, render his decision thereon, and report the same to the appellant and to such assistant or inspector.

'Such decision shall specify the further proceedings to be had in the premises. Such decision shall not, however, preclude an appeal or proper action in the courts in cases where such rights would otherwise exist.'

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