Dederick v. Smith

Decision Date07 April 1936
Citation184 A. 595
CourtNew Hampshire Supreme Court

Exceptions from Superior Court, Belknap County; James, Judge.

Petition for injunction by Florence M. Dederick against Robert W. Smith. A temporary injunction which was issued was dissolved and the petition was dismissed, and plaintiff brings exceptions.

Exceptions overruled.

Petition for an injunction brought against the defendant in his capacity as state veterinarian, praying that he "his aiders, abettors, agents and employees * * * be enjoined and restrained from trespassing upon the property of the said Florence M. Dederick, or from entering or breaking into her premises, or from in any manner testing, treating, doctoring or in any way tampering with any of the livestock owned by her." A temporary injunction was issued, but after a hearing upon the merits, the court (James, J.) ordered that this injunction be dissolved and the petition dismissed. The case comes here upon the plaintiff's bill of exceptions.

The essential facts were found by the court as follows: Some time prior to March 27, 1933, the defendant requested that the petitioner permit him to test her cattle for bovine tuberculosis. This request was refused. On March 27, 1933, the defendant, together with the county solicitor, a local veterinarian, a deputy sheriff and one or two other assistants went to the petitioner's premises and forced entrance to her barn for the purpose of making this test. On this visit they made the first injection of tuberculin. Having been unable to complete this test because of the plaintiff's objection, two of them later returned and made a second injection and still later they completed the test. None of the petitioner's animals reacted to this test. The petitioner was not selling milk to the public. At the time of the alleged trespass, Grafton county, in which the plaintiff resides, had been duly declared a quarantine area.

The claims of the plaintiff as they were developed at the trial were stated by the court as follows:

"(a) That the defendant did not have authority to summarily break and enter the petitioner's barn over her protest and without her consent, or to commit any trespass upon private rights without judicial authorization.

"(b) That before such entry the petitioner was entitled to a hearing as to whether or not the keeping by her of cattle that had not been tested for tuberculosis came within the provisions of P. L. c. 187, § 46, as amended, and was within the police power of the state.

"(c) That the defendant's entry upon the premises of the petitioner was made without due process of law.

"(d) That P.L. c. 187, § 46, as amended,

is unconstitutional."

The court made the following rulings: "I rule as a matter of law that the defendant's entries upon the premises of the petitioner were not trespasses but entries made under authority of express statutory enactment and that the statute in question is not repugnant either to the federal or state constitution but is a valid exercise of police power."

To the foregoing rulings the plaintiff took exception upon the grounds that they are "contrary to the provisions of the Federal Constitution, the Bill of Rights, and the Constitution and Laws of the State of New Hampshire." The plaintiff also excepted to the following findings of fact upon the ground that they "are not substantiated by the evidence":

"(5) That the tuberculin test is not harmful either to animals or to human beings.

"(6) That the entry of the defendant and his agent caused no actual injury to the petitioner.

"(7) That there were no wanton or unnecessary acts of even technical trespass." Other facts are stated in the opinion.

Florence M. Dederick, per se. Thomas P. Cheney, Atty. Gen., and Dudley Orr, Asst. Atty. Gen., for defendant.

BRANCH, Justice.

The defendant broke and entered the plaintiff's barn and applied the tuberculin test to her cattle without her consent and despite her positive objections. Her assertion that the defendant "did not have authority" to do these acts "without judicial authorization" raises, first, a question as to the scope and effect of the statutes here involved.

Chapter 187 of the Public Laws as amended, embodies a comprehensive program for the control and eradication of contagious and infectious diseases of domestic animals. Section 29 of that chapter provides that the commissioner of agriculture "shall cause systematic investigation * * * to be made as to the existence of pleuro-pneumonia * * * or any other infectious or contagious disease among cattle * * * and all other domestic animals, and he, or his duly authorized agent, may enter any premises, including stock yards, within any part of the state, in or at which he has reason to believe that there exists or may exist any such disease, and make search, investigation and inquiry in regard to the existence thereof." Although tuberculosis is not mentioned by name 'in this section, it was obviously included within the description of "any other infectious * * * disease." If doubt were possible upon this point, it must be removed when it is observed that many subsequent sections of the same chapter deal specifically with examinations for tuberculosis, the use of the tuberculin test and the disposition of animals found to be diseased. P.L. c. 187, §§ 42-82, as amended. The purpose of these provisions is accurately indicated by the finding of the court that "the use of the tuberculin test is an essential part of a coordinated national program for the eradication of bovine tuberculosis."

Section 46 of the same chapter, as amended by Laws of 1931, c. 22, § 1, authorizes the commissioner of agriculture to "declare any town or county a quarantine area" and to "test all animals within said area." The court has found that, in accordance with these enactments, Grafton county, where the alleged trespass had been committed, "had been duly declared a quarantine area for the purpose of applying the tuberculin test." For the purposes of enforcing the provisions of this act, the state veterinarian is the duly authorized agent of the commissioner. Id. section 6. Section 83 of the same chapter makes it a criminal offence to interfere with or hinder the "work of the commissioner or his agents."

The net result of the foregoing provisions is that the state veterinarian has authority to test for tuberculosis all cattle within a duly established quarantine area. For that purpose he is authorized to enter "any premises" where cattle are kept, and since cattle are usually kept in barns, it follows that he is clothed with authority to enter such buildings in the performance of this duty.

The contention of the plaintiff that the statute does not authorize an entry without the supplementary aid of judicial process in the nature of a search warrant is without merit. On the contrary, the act was apparently designed to dispense with the necessity of judicial process in its enforcement. The statute, in effect, gives to the named officers a blanket search warrant which permits them to investigate all premises where cattle are kept. To the validity of this warrant the consent of the owner is not necessary, and authority to use such force as may be necessary to effect an entrance to buildings which have been locked for the purpose of preventing an investigation is necessarily implied.

The specific claim of the plaintiff that before such entry she "was entitled to a hearing as to whether or not the keeping by her of cattle that had not been tested for tuberculosis came within the provisions of P.L. c. 187, § 46, as amended, and was within the police power of the state," finds no support in the provisions of the statute or the established procedure in regard to the issuance of such warrants. P.L. c. 365, §§ 1-3. Since the law contemplates the testing of all cattle within a quarantine area, no question of fact as to whether the plaintiff's cattle were subject to test could arise. We therefore conclude that the acts of which the plaintiff complains and against a repetition of which she seeks an injunction, were authorized by the statute, and unless the statute is, for some reason, invalid, the petition must be dismissed.

In her brief the plaintiff states that she "bases her appeal upon three grounds:

"I. The breaking and entering cannot be justified in any manner, because they violate the rights in property secured to an individual by the Constitution of New Hampshire.

"II. Her property was injured without due process of law.

"III. Chapter 46 of the Public Laws of New Hampshire, as amended by Chapter 22 of the Public Acts, Joint Resolutions of the Legislature of 1931, is unconstitutional, for it is an arbitrary and unreasonable exercise of the police power of the state."

Logically the last of these propositions should be considered first, for unless the statute can be defended as a valid exercise of the police power of the state, its unconstitutionality upon both of the grounds suggested above would be clear. We therefore take up first the question, whether the enactments here involved can be sustained under the police power.

In regard to the purpose of the law, there can be no doubt but that the control of infectious diseases of domestic animals is a subject within the scope of the police power of the state. The Supreme Court of the United States has repeatedly recognized and declared that this is so. Hannibal & St. J. R. Co. v. Husen, 95 U.S. 465, 24 L. Ed. 527; Missouri, K. & T. Ry. Co. v. Haber, 169 U.S. 613, 18 S.Ct. 488, 42 L.Ed. 878; Smith v. St. Louis, etc., Ry. Co., 181 U.S. 248, 21 S.Ct. 603, 45 L.Ed. 847; Reid v. Colorado, 187 U.S. 137, 23 S.Ct. 92, 47 L.Ed. 108; Asbell v. Kansas, 209 U.S. 251, 28 S.Ct. 485, 52 L.Ed. 778, 14 Ann.Cas. 1101. Numerous decisions of the state courts to the same effect are collected in the note to McSween v. State Live Stock Sanitary Board (97 Fla. 750, 122 So. 239) in 65 A.L.R. 508, 528. The...

To continue reading

Request your trial
23 cases
  • State v. Rees
    • United States
    • Iowa Supreme Court
    • January 11, 1966
    ...for certain inspections and held there was no violation of due process. A well reasoned opinion clearly in point appears in Dederick v. Smith, 88 N.H. 63, 184 A. 595, a New Hampshire case decided in 1936. Although prior to Mapp v. Ohio, discussed infra, the reasoning is not in conflict Plai......
  • Sibson v. State
    • United States
    • New Hampshire Supreme Court
    • March 31, 1975 to make the restriction of individual rights unreasonable. Shirley v. Commission, 100 N.H. 294, 124 A.2d 189 (1956); Dederick v. Smith, 88 N.H. 63, 184 A. 595 (1936); Woolf v. Fuller, 87 N.H. 64, 174 A. 193 (1934); Annot., 32 A.L.R.3d 215, 250-55 (1970). The importance of wetlands to the......
  • Shirley v. New Hampshire Water Pollution Commission
    • United States
    • New Hampshire Supreme Court
    • August 14, 1956
    ...260 Wis. 229, 50 N.W.2d 424; City of Huntington v. State Water Commission, 137 W.Va. 786, 73 S.E.2d 833. See, also, Dederick v. Smith, 88 N.H. 63, 67, 184 A. 595. Its tendency to promote the public health and welfare cannot seriously be questioned. Cf. State v. Ramseyer, 73 N.H. 31, 36, 58 ......
  • City of St. Louis v. Evans, s. 48018-48021
    • United States
    • Missouri Supreme Court
    • September 12, 1960
    ...relied upon. Givner v. State of Maryland, 210 Md. 484, 124 A.2d 764; Hubbell v. Higgins, 148 Iowa 36, 126 N.W. 914; Dederick v. Smith, 88 N.H. 63, 184 A. 595, 599 (appeal dismissed 299 U.S. 506, 57 S.Ct. 38, 81 L.Ed. 375); Frank v. State of Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 87......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT