Hacker v. Barnes

• Decision Date: 09 February 1932
• Docket Number: 23578.
• Parties: HACKER v. BARNES, Director of Agriculture, et al.
• Court: Washington Supreme Court

7 P.2d 607

166 Wash. 558

HACKER v. BARNES, Director of Agriculture, et al.

No. 23578.

Supreme Court of Washington

February 9, 1932

Department 2.

Appeal from Superior Court, Thurston County; D. F. Wright, Judge.

Action by Paul Hacker against Erle J. Barnes, Director of Agriculture, and others. From an adverse judgment, plaintiff appeals.

Affirmed.

Oliver R. Ingersoll and Ben S. Sawyer, both of Olympia, for appellant.

John H Dunbar and E. W. Anderson, both of Olympia, for respondents.

BEALS J.

This appeal involves the constitutionality of chapter 165, p. 158 Laws of 1927, 'An Act relating to and providing for the prevention and eradication of diseases of domestic animals,' etc., as amended by chapter 210, p. 559, Laws of 1929, with particular reference to those provisions of the acts which provide for the application of the so-called 'tuberculin test' to bovine animals, for the purpose of ascertaining whether or not the cattle subjected to the test are infected with tuberculosis. Plaintiff filed this action against the state director of agriculture and two of his subordinate officers, the supervisor of dairy and live stock and the state veterinarian, alleging in his complaint that he was the owner of dairy cows, selling to customers in Thurston county the milk produced by his herd; that the defendants demanded of plaintiff that they be permitted to subject plaintiff's cattle to the tuberculin test, for the purpose of ascertaining whether or not any of the animals were infected with tuberculosis; that plaintiff refused to permit defendants to subject his cattle to the test whereupon defendants quarantined plaintiff's cattle which order of quarantine is still in force, to plaintiff's damage. Plaintiff further alleged that none of his herd was infected with tuberculosis, and that all of his cattle were in all respects sound and well. In his second cause of action, plaintiff alleged the unconstitutionality of the statutes above referred to, and prayed that defendants be enjoined from interfering with plaintiff's business by quarantining his herd, and that he have such other relief as the court should deem just. Defendants demurred to plaintiff's complaint, which demurrer was sustained by the trial court. Plaintiff elected to stand upon his complaint, whereupon the court entered judgment dismissing the action, from which judgment plaintiff appeals.

Section 11 of the act, as amended, makes it the duty of the state director of agriculture to cause all bovine animals within the state to be examined and tested, for the purpose of ascertaining whether or not the same are infected with tuberculosis, and purports to vest the director with authority to quarantine the premises of the owner of any bovine animal who refuses to have his cattle subjected to the tuberculin test referred to in the statute. The act further provides for the destruction of any animal found to be infected with tuberculosis, unless the owner thereof shall elect to have the animal subjected to quarantine; the owner to be indemnified in case the animal be slaughtered.

Appellant contends that the statute is unconstitutional in that the same constitutes an arbitrary and unreasonable exercise of the police power of the state; for the further reason that the act provides for the employment by the owner of cattle of a private veterinarian, whose selection must be approved by the state director of agriculture, which appellant argues vests in this officer arbitrary and unreasonable power; because the law is vague and indefinite; and because the title of the act is insufficient, in that the same is not broad enough to cover all of the provisions therein contained. In connection with these propositions, appellant argues that under the act his property is taken or damaged without due process of law, and that the statute unlawfully attempts to delegate legislative power to the director of agriculture.

Appellant devotes considerable argument to the proposition that the so-called tuberculin test has no sound basis in science; that the same is, in fact, dangerous to cattle subjected thereto; and that, instead of the making of the test being enjoined by the statute, the employment of the test should, in fact, be prohibited by law. It appears from even a cursory examination that the scientific authorities are, on this question, in hopeless conflict, and upon this phase of the case we must hold that it does not appear that the state Legislature either exceeded its authority or, as a scientific proposition, erred in providing for the employment of the test referred to.

In the next place, appellant argues that, because in his complaint it is alleged that his cattle were, in fact, healthy and free from tuberculosis, which allegations were admitted by respondents' demurrer, appellant was entitled to the benefit of this allegation in greater measure than he received, and that, because he was denied an opportunity to prove the truth of this allegation Before the court, he has been deprived of some measure of the constitutional guaranty that his property shall not be taken or damaged without due process of law. Appellant is entitled to the full benefit of the admission of the truth of his allegation above referred to, to the same extent as he would be had be proved the same by formal evidence. The statute provides for the compulsory inspection and test of all cattle within the state; the premise upon which the act is based being manifestly a legislative assumption that the condition of the animals with regard to the presence or absence of tuberculosis, can best be determined by subjecting them to the test provided for by the act. The admission by the demurrer that appellant's cattle were healthy constitutes no reason for granting appellant the relief for which he asks by way of an injunction restraining respondents from testing appellant's cattle. It is, of course, true that the protection of the public health is not only a proper exercise of the police power of a state, but is one of the most important branches of the exercise of that power. State v. Carey, 4 Wash. 424, 30 P. 729; Hathaway v. McDonald, 27 Wash. 659, 68 P. 376, 91 Am. St. Rep. 889; State v. Sharples, 31 Wash. 191, 71 P. 737, 96 Am. St. Rep. 893; State ex rel. McBride v. Superior Court, 103 Wash. 409, 174 P. 973; Seattle v. Cottin, 144 Wash. 572, 258 P. 520; Brown v. Seattle, 150 Wash. 203, 272 P. 517, 278 P. 1022. It is evident that, if such laws as that with which we are here concerned are to be effective, they must be universally applied. An act similar to that with which we are here concerned was considered by the courts of the state of New York in the case of People v. Teuscher, 129 Misc. 94, 221 N.Y.S. 20, the same case on appeal being reported in 222 A.D. 791, 226 N.Y.S. 881; Id., 248 N.Y. 454, 162 N.E. 484. The Supreme Court of the United States, in the case of Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 362, 49 L.Ed. 643, 3 Ann. Cas. 765, considering a statute providing for compulsory vaccination, said: 'There is, of course, a sphere within which the individual may assert the supremacy of his own will, and rightfully dispute the authority of any human government,--especially of any free government existing under a written constitution, to interfere with the exercise of that will. But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand. An American citizen arriving at an American port on a vessel in which, during the voyage, there had been cases of yellow fever or Asiatic cholera, he, although apparently free from disease himself, may yet, in some circumstances, be held in quarantine against his will on board of such vessel or in a quarantine station, until it be ascertained by inspection, conducted with due diligence, that the danger of the spread of the disease among the community at large has disappeared. The liberty...