Hawkins v. Hoye

• Decision Date: 14 December 1914
• Docket Number: 16823
• Citation: 108 Miss. 282,66 So. 741
• Court: Mississippi Supreme Court
• Parties: HAWKINS v. HOYE et al

66 So. 741

108 Miss. 282

HAWKINS v. HOYE et al

No. 16823

Supreme Court of Mississippi

December 14, 1914

APPEAL from the circuit court of Lauderdale county. HON. JNO. L BUCKLEY, Judge.

Suit by I. B. Hawkins against Dr. M. J. L. Hoye, and others. From a judgment overruling a demurrer to pleas filed by defendant plaintiff appeals.

The facts are fully stated in the opinion of the court.

Case affirmed.

OPINION

REED, J.

Appellant operated a small dairy in Lauderdale county near the city of Meridian. He owned eleven cows which were in use for milk in his dairy business. He brought this action at law for damages which he claimed to have suffered from the rejection of six of his cows upon an examination of them for tuberculosis and other contagious and infectious diseases. He charged in his declaration that the examination and rejection of the cows were without authority of law and wrongful. To the declaration appellees filed the plea of general issue and special pleas. Appellant demurred to the special pleas and his demurrer being overruled, appealed to this court.

Pursuant to a rule or ordinance made and promulgated by the Mississippi state board of health on October 11, 1909, for the purpose of suppressing and eradicating tuberculosis and other contagious and infectious diseases, Dr. M. J. L. Howe, who was the duly appointed, qualified, and acting health officer of Lauderdale county, designated Dr. B. M. Leigh, a competent veterinarian, to examine all cows used by dairymen in their milk business. He gave notice on July 19, 1912, of his purpose to enforce the ordinance by publishing the following notice in the daily papers of the city of Meridian:

"By virtue of an ordinance of the Mississippi state board of health, all cows used by dairymen selling milk are required to be examined by a competent veterinarian semiannually on or before the 31st day of July, and on or before the 31st day of December. I have appointed Dr. B. M. Leigh to inspect these cows and if not inspected and if certificates are not filed with me before these dates, I shall take steps to prosecute all who violate this rule of the state board of health and impose penalty provided for in section 2511 of Code of 1906, which is fifty dollars."

We quote in full as follows the ordinance adopted by the state board of health:

"An Ordinance for the Suppression and Eradication of

Tuberculosis and Other Contagious Diseases.

"Be it ordained by the state board of health of the state of Mississippi:

"Section 1. That each person, firm, corporation or association managing, owning or conducting a dairy in this state, or engaged in the sale of milk and its products, shall on or before the 31st day of July and the 31st day of December of each year have all cows used in and about the business examined for tuberculosis and other contagious and infectious diseases by some competent veterinarian to be designated by the health officer of the county, if any, and if none then by the secretary of this board, and shall on or before the dates mentioned file with the county health officer, if any, and if none then with the secretary of this board a certificate of the examining veterinarian, showing the health condition of all cattle so used and examined, and designating by particular description all such as may be infected with tuberculosis or other contagious and infectious diseases.

"Sec. 2. That the officer with whom the certificate is filed shall immediately examine the same and condemn and forbid the use of all infected cows, the milk of which is impure and injurious to the public health, and shall immediately notify the owner or person having such cattle in charge of his action in the premises by written notice, duly mailed, postage prepaid, to such person at his known post office address.

"Sec. 3. That no person, firm, corporation or association engaged in the business aforesaid, or in the business of buying and selling milk or its products shall sell or offer for sale any milk or any of the products thereof from any cow not examined and certified, as hereby required, or from any cow the use of which has been condemned and prohibited, or from any cow known to be infected as aforesaid, or the milk of which is impure and injurious to the public health.

"Sec. 4. That no veterinarian shall ask, charge or receive a sum in excess of one dollar for each cow examined and certified hereunder.

"Sec. 5. That any person or corporation violating any of the provisions of this ordinance shall be subject to the penalties prescribed by section 2511 of the Code of Mississippi, 1906."

It is stated in the special pleas that on the 5th and 6th days of August, 1912, Dr. Leigh examined all the cows used by appellant in his dairy business and found and determined that six of them were affected with tuberculosis, and he made a report of this to the county health officer. That officer thereupon forbid the use of the six cows so affected; and on August 10th mailed to appellant a written notice as follows:

"Dr. B. M. Leigh, reports to me that six of your cows reacted to the tuberculin test. Let this notify you that these cows are condemned and the use of their milk prohibited by an ordinance of the state board of health made October 11, 1909."

It is further shown in the special pleas that none of the cows had been killed and that neither the county health officer nor the veterinarian declined to permit appellant to sell milk from his five other cows; and that all acts done by such health officer were done in good faith and solely for the protection of the public health. The pleas further show that the inspection of the cows was made at the special instance and request of appellant. We quote the concluding paragraph of one of the special pleas:

"And this defendant further says that all his acts in the premises were done in good faith in his official capacity as county health officer, for the sole purpose of protecting the inhabitants of said county against becoming infected with dangerously contagious and infectious diseases by reason of using milk obtained from diseased and unhealthy cows; and that the public had a right, as a matter of general public interest, to know the truth concerning all the official acts and findings of this defendant and the said Dr. B. M. Leigh, touching the condition of all the dairy cows in said county in order that they might thereby protect themselves against infection from such of said cows as were diseased or unhealthy; and that no information was given out concerning the plaintiff's cows either by this defendant separately or jointly with the said Dr. B. M. Leigh except such as was found to be true after careful inspection and examination. All of which this defendant is ready to verify; wherefore he says the plaintiff ought not to have and maintain said suit."

The pleas filed by the two appellees were practically identical.

By appellant's demurrer he contends that the ordinance promulgated by the state board of health is void for the following reasons:

"Because the said state board of health and no authority of law to enact such ordinance.

"(b) Because the said state board of health had no legislative powers and that such right could not be delegated to it nor was such power attempted to be delegated to it.

"(c) Because said ordinance or alleged ordinance of said state board of health was unreasonable and void.

"(d) Because said state board of health had no authority of law or otherwise to legislate itself and its appointees into offices whereby they would be entitled to charge and collect fees from the citizens.

"(e) Because said ordinance undertook to place in the control of one man the right to condemn plaintiff's property without trial or hearing and therefore it is in direct conflict with the Constitution of the state of Mississippi, to wit, section 14.

"(f) Because said ordinance is in conflict with section 17 of the state Constitution in that...