Fevold v. Bd. of Sup'rs of Webster Cnty.

• Decision Date: 21 September 1926
• Docket Number: No. 37402.,37402.
• Citation: 202 Iowa 1019,210 N.W. 139
• Parties: FEVOLD ET AL. v. BOARD OF SUP'RS OF WEBSTER COUNTY ET AL.
• Court: Iowa Supreme Court

202 Iowa 1019

210 N.W. 139

FEVOLD ET AL.

v.BOARD OF SUP'RS OF WEBSTER COUNTY ET AL.^a1

No. 37402.

Supreme Court of Iowa.

Sept. 21, 1926.

Appeal from District Court, Webster County; G. D. Thompson, Judge.

Action for injunction to restrain defendants from proceeding to enforce in Webster county certain provisions of the statute relating to the eradication of bovine tuberculosis. The petition was dismissed, and plaintiffs appeal. Affirmed.Healy & Breen, of Ft. Dodge, for appellants.

James I. Dolliver and Price, Burnquist & McCall, all of Ft. Dodge, for appellees.

Ben J. Gibson, Atty. Gen., and Herbert A. Huff, Asst. Atty. Gen., amicus curiæ, for the State.

VERMILION, J.

The plaintiffs are resident taxpayers of Webster county, and some of them are owners of breeding cattle. The defendants are the members of the board of supervisors, county attorney, sheriff, auditor, and treasurer of the county, and the secretary of the department of agriculture of the state. The relief asked was an injunction restraining the defendants from proceeding to enforce the statutes with reference to the suppression of bovine tuberculosis. The relief was denied below, and the petition dismissed, and from this judgment the appeal is taken.

I. The appellants attack the constitutionality of the statutes at many points, on many grounds, and from many angles, and also question the validity of the proceedings theretofore taken under the statute. The acts involved are chapter 287, Acts 38th General Assembly, chapter 48, Acts 40th General Assembly, and chapter 23, Acts Extra Session 40th General Assembly. The present corresponding statutory provisions will be found in chapter 129 of the Code of 1924, as amended.

Section 10, c. 287, Acts 38th General Assembly, provided that owners of cattle might have them tested for tuberculosis on application to the commission of animal health and the execution of an agreement to conform to, and abide by, the rules and regulations laid down by the commission, and to follow the instructions of the commission designed to prevent the reinfection of the herd. The section further provided for the appraisal of the animals to be tested and for the payment of a portion of the appraised value of cattle which it was found advisable to slaughter.

By chapter 48, Acts 40th General Assembly, the foregoing act was amended by adding thereto provisions for the establishment of what was designated as the “county area” and the “county accredited area” plans of eradicating bovine tuberculosis. Chapter 48 went in effect July 4, 1923. Section 10b thereof is as follows:

“Whenever a petition signed by fifty-one per cent. of the owners of breeding cattle within the county, as shown by the assessor's reports, together with agreements as provided in section ten (10) hereof, shall be presented to the board of supervisors, the board shall make application to the commission of animal health of the state for the enrollment of said county under the county area plan and shall, at the same time forward to the commission of animal health the agreements signed as provided herein. The commission of animal health shall, when it receives agreements signed by fifty-one per cent. of the owners of breeding cattle within such county, designate such county as a county area testing unit and it shall forthwith proceed with the eradication of bovine tuberculosis in such county under the county area plan as provided herein.”

By section 10f it was provided that the commission of animal health, when it had designated any county as an area for the eradication of tuberculosis under the county area plan, should make provision for the testing of the cattle of such owners as had signed agreements therefor.

Section 10d provided the board of supervisors of such county should levy a tax of not more than three mills on the dollar on the taxable property in the county, the proceeds of which should be known as the county tuberculosis eradication fund.

In September, 1923, there was filed in the office of the county auditor of Webster county a petition, addressed to the board of supervisors, signed by 51 per cent. of the owners of breeding cattle in the county, asking the board to make application to the state department of agriculture for the enrollment of the county under the county area plan, and containing an agreement that the signers would permit their herds to be examined and tuberculin tested, and would conform to and abide by all rules and regulations laid down, or which might be adopted, by the department. The board of supervisors thereupon adopted a resolution finding the petition sufficient, making such application, and levying a tax of two mills on the taxable property in the county for the eradication fund. In 1924 the board levied a like tax in the sum of $33,000.

Thereafter, chapter 23 of the Extra Session 40th General Assembly was enacted, and went into effect by publication on March 10, 1924. Section 25 thereof was as follows:

“Whenever seventy-five per cent. (75%) of the owners of breeding cattle in any county operating under the county area plan, shall have signed agreements with the department of agriculture, the department shall enroll the county under the accredited area plan and notify the board of supervisors of such county accordingly. The board shall cause to be published a notice of such enrollment once in two official newspapers of the county and thereafter every owner of breeding cattle within the county shall cause his cattle to be tested for tuberculosis as provided in this act and shall comply with all the requirements for the establishment and maintenance of a tuberculosisfree accredited herd.”

It was stipulated by the parties on the trial below that Webster county was enrolled under the accredited area plan in October, 1924. A veterinary inspector for Webster county was appointed by the state secretary of agriculture. He testified it was his purpose and intention to continue in the work of testing cattle for tuberculosis, and to quarantine or condemn them, as his judgment dictated, if he believed they had tuberculosis, unless restrained by injunction. The record discloses no other acts or purpose on the part of the defendants, nor was it shown that any of the plaintiffs have been, or will be, affected thereby, save as taxpayers and as the owners of breeding cattle in the county are necessarily affected.

Some apparent confusion of terms in designating the state official or body in whom authority is vested under the various acts is readily explained by the fact that by chapter 46, Acts 40th General Assembly, the commission of animal health was consolidated with the state department of agriculture, the office of secretary of agriculture was created, and such officer was invested with all the powers and duties of the commission. Peverill v. Board of Supervisors (Iowa) 205 N. W. 543.

We assume, although, the record before us is silent on the subject, that the appellants did not sign the agreements contemplated by the statute for the testing of their herds and agree to conform to and be bound by the rules and regulations of the department of agriculture. As pointed out in Peverill v. Board of Supervisors, supra, upon the enrollment of the county under the county area plan, provided for in section 10b, chapter 48, Acts 40th General Assembly, the only inspection by that section authorized was of the herds of such owners as had signed such agreements. Of this plaintiffs cannot complain. It was only when the county had been enrolled under the accredited area plan that plaintiffs, as the owners of breeding cattle, could be affected by the provisions of the statute relating to compulsory inspection and testing, which were being carried out by the appellees.

It is the contention of appellants that section 25, chapter 23, Acts Extra Session 40th General Assembly, requiring any owner of breeding cattle in any county which has come under the county area accredited plan to have his cattle tested for tuberculosis, violates the constitutional provision requiring due process of law, in that it fails to provide for notice and a hearing upon the application of 75 per cent. of the owners of breeding cattle in the county for the enrollment of the county as an accredited area.

[1] The only way in which it can be said, under the facts appearing in the record, that appellants will certainly be affected by the enrollment of the county as an accredited area, aside from the matter of taxation to be presently considered, is to require them to have their breeding cattle tested for tuberculosis. It is not shown that any of their cattle have been tested and claimed to be infected, and are about to be quarantined or slaughtered, or that any penal provisions of the statute are about to be invoked against them. There is no showing that they have been, or are about to be, deprived of any property, or that any of their property will be taken for public use. The utmost that appears is that they are required to have their cattle tested. If their animals should be found to be free from the disease, that is the end of the matter. We will not assume that their cattle will be found to be infected for the purpose of questioning the validity of statutory provisions that might, in such case, be invoked.

[2] We think there can be no doubt that the Legislature, in the exercise of the police power, may require breeding cattle to be tested for tuberculosis and provide reasonable measures for carrying out the requirement. The United States Supreme Court has said that while-- “the police power cannot be put forward as an excuse for oppressive and unjust legislation, it may be lawfully resorted to for the purpose of preserving the public health, safety or morals, or the abatement of public nuisances, and a large discretion is necessarily vested in the Legislature to determine not only what the interests of the public require, but what measures are necessary for the...