Colvill v. Fox

• Decision Date: 01 June 1915
• Docket Number: 3526.
• Citation: 149 P. 496,51 Mont. 72
• Parties: COLVILL v. FOX.
• Court: Montana Supreme Court

149 P. 496

51 Mont. 72

COLVILL v. FOX.

No. 3526.

Supreme Court of Montana

June 1, 1915

Appeal from District Court, Missoula County; J. E. Patterson, Judge.

Action by H. C. B. Colvill against Edwin Fox. Judgment for defendant, and plaintiff appeals. Affirmed.

William Wayne, of Missoula, for appellant.

D. M Kelly, Atty. Gen., and J. H. Alvord, Asst. Atty. Gen., for respondent.

HOLLOWAY J.

In March, 1914, H. C. B. Colvill brought to the city of Missoula certain apples owned by him which were boxed and intended for shipment to points within and without this state and to be sold in the open market. The fruit was seized and destroyed by Edwin Fox, and this action was instituted to recover damages. The defendant made answer to the complaint that he was a duly appointed, qualified, and acting inspector of fruit pests for the district including Missoula county; that the apples in question were affected with apple scab, a dangerous and contagious fruit disease, and one so designated by the state board of horticulture in its regulations promulgated pursuant to statute; that under the law and the regulations of the board it was the duty of the defendant, as such inspector, to destroy the apples to prevent the spread of the disease; and that the destruction was therefore lawful. To this answer a general demurrer was interposed which was overruled, and plaintiff, electing not to plead further, suffered a judgment on the pleadings to be entered against him, and appealed.

The validity of the statutes for the regulation and protection of the horticultural industry and of certain regulations of the board is assailed upon these grounds:

(1) They are not valid police regulations.

(2) They lodge in the same officer judicial and executive powers.

(3) They permit private property to be taken for private use, and for public use without compensation.

(4) Under their provisions the owner is deprived of his property without due process of law and denied the equal protection of the laws.

1. It cannot be contended successfully that the protection of the horticultural industry from the ravages of insect pests or dangerous, contagious fruit diseases is not well within the limits of the police power of the state. In Noble State Bank v. Haskell, 219 U.S. 104, 31 S.Ct. 186, 55 L.Ed 112, 32 L. R. A. (N. S.) 1062, Ann. Cas. 1912A, 487, the court said:

"In a general way * * * the police power extends to all the great public needs. * * * It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare."

This language was quoted with approval in Cunningham v. Northwestern Improvement Co., 44 Mont. 180, 119 P. 554.

In Cooley's Constitutional Limitations (7th Ed.) 829, the author announces the same doctrine as follows:

"The police of a state, in a comprehensive sense, embraces its whole system of internal regulation, by which the state seeks not only to preserve the public order and to prevent offenses against the state, but also to establish for the intercourse of citizens with citizens those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own so far as is reasonably consistent with the like enjoyment of rights by others."

The definition of Chief Justice Shaw has become a legal classic. In Commonwealth v. Alger, 7 Cush. (Mass.) 53, he said:

"We think it is the settled principle, growing out of the nature of well-ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it * * * shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. All property in this commonwealth, * * * is * * * held subject to those general regulations, which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the Legislature, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient. This is very different from the right of eminent domain--the right of a government to take and appropriate private property * * * whenever the public exigency requires it; which can be done only on condition of providing a reasonable compensation therefor. The power we allude to is rather the police power, the power vested in the Legislature by the Constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same."

In Bacon v. Walker, 204 U.S. 311, 27 S.Ct. 289, 51 L.Ed. 499, the court, after reviewing many authorities dealing with the police power, said:

"That power is not confined, as we have said, to the suppression of what is offensive, disorderly, or unsanitary. It extends to so dealing with the conditions which exist in the state as to bring out of them the greatest welfare of its people."

In Los Angeles County v. Spencer, 126 Cal. 670, 59 P. 202, 77 Am. St. Rep. 217, the court had under consideration the question of the validity of a statute to promote and protect the horticultural interests of California in terms somewhat similar to our own, and upon the subject said:

"It is known that the existence of the fruit industry in the state depends upon the suppression and destruction of the pests mentioned in the statute. The act in question is, therefore, a proper exercise of the police power which the Legislature has, under section 1 of article 19 of the Constitution, to subject private property to such reasonable restraints and burdens as will secure and maintain the general welfare and prosperity of the state."

In State v. Main, 69 Conn. 123, 37 A. 80, 36 L. R. A. 623, 61 Am. St. Rep. 30, the constitutionality of a statute which provided for the destruction of peach trees affected with the "yellows," was upheld, and upon the power of the state to enact and enforce such legislation the court said:

"Such a disease it was proper for the General Assembly, in the exercise of its police power, to endeavor to suppress, even by the destruction of the trees attacked by it, if there was a reasonable apprehension of substantial danger, from allowing them to live, to those who might eat their fruit, or to other peach orchards."

The statute and board regulations are attacked also upon the ground that they are unreasonable, in that they admit of the total destruction of affected fruit which is not altogether useless, and in this connection our attention is directed to certain of the regulations which lodge with the inspector the discretion to permit the owner of apples affected with the scab to manufacture such fruit into cider, jellies, or other by-products. It would seem to answer this contention to say that the complaint does not charge abuse of discretion on the part of the inspector, or make any claim that plaintiff desired to use the fruit in question for any of the purposes permitted by the board. He alleges, on the contrary, that it was his intention to ship the fruit to other points for sale in the open market.

It is no objection to the enforcement of a police regulation that the thing proscribed may be put to profitable use without injury or danger to any one. If by the particular use to which it is sought to be applied the public interests are jeopardized, such use may be regulated or prohibited altogether. In principle, the decisions of the Supreme Court of the United States in the oleomargarine cases are conclusive upon this question. Powell v Pennsylvania, 127 U.S. 678, 8 S.Ct. 992, 1257, 32 L.Ed. 253; Plumley v. Massachusetts, 155 U.S. 461, 15 S.Ct. 154, 39 L.Ed. 223; Capital City Dairy Co. v. Ohio, 183 U.S. 238, 22 S.Ct. 120, 46 L.Ed. 171. It was plaintiff's own act in seeking to...