Hous v. State

Citation74 N.W. 111,98 Wis. 481
PartiesHOUSTON v. STATE.
Decision Date08 February 1898
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Original action in the supreme court by Robert S. Houston against the state. Defendant demurred to the complaint. Sustained.

This action was commenced in this court June 29, 1897. The amended complaint alleges, in effect, that during the time mentioned the plaintiff was a farmer, residing on his farm in the county of Kenosha; that he owned and had on the farm a standard herd of dairy cattle, consisting of 60 head of thoroughbred milch cows, Jerseys and Guernseys, and crosses of the thoroughbred cattle; that by chapter 467, Laws 1885, as amended by chapter 76, Laws 1887, provision was and is made for the appointment of a state veterinarian, whose duties are therein set forth; that under and by virtue of the said statutes the state assumed the right and power to invade the premises of any citizen of this state, and, by its officers and agents, to inspect the personal property of any citizen, and to destroy any property of any citizen, in certain cases, and for certain purposes, as in the said laws specifically pointed out and designated, and for that purpose made provision for the appointment of a state veterinarian; that in November, 1895, one J. L. Scott was duly appointed and qualified, and, while acting as state veterinarian under and by virtue of the laws aforesaid, visited the premises of the plaintiff, as claimed by him, to inspect the herd of dairy cattle then owned by the plaintiff, and kept on his farm for the purpose therein indicated; that after such inspection the state veterinarian informed the plaintiff that said herd looked to be in an excellent condition, and entirely free from any disease of any kind whatever, but that, inasmuch as complaint had been made to him that some of the cattle were diseased, he had concluded that it was his duty to test the herd for tuberculosis, by applying and using the so-called tuberculine test; that December 5, 1895, the state veterinarian, in his official capacity, acting for the defendant by virtue of said laws, did, as claimed by him, apply severally to the individual animals composing the herd the so-called tuberculine test for tuberculosis, and as a result of the test the state veterinarian announced that 38 of the animals were affected with tuberculosis, and did then and there, by virtue of the authority he claimed to exercise as the agent of the state, condemn said animals as diseased animals, under the aforesaid laws; that thereafter the state veterinarian went before a justice of the peace in the town, and, in the form and in accordance with the rules prescribed by the statute in such case made and provided, did apply, on behalf of the state, for the appointment of appraisers of the 38 head of cattle so condemned; that thereupon the justice, acting under the provisions of the law, and as agent of the state, appointed three appraisers of the cattle, who appraised the animals at $47 per head, amounting in the whole to $1,710; that said amount is very much less than the actual value of the animals; that the appraisers and officers and agents of the state found themselves, under and pursuant to said laws, charged with the duty, after appraising the cattle, of destroying or killing the cattle so condemned, and burning or burying the same; that no provision was or is made in the acts for paying the expenses thereby incurred; that the officers and agents of the state, to whom the said 38 animals were delivered by the plaintiff pursuant to the directions of the state veterinarian, caused 2 of them to be killed, and made a post mortem examination of the same, and shipped the other 36 head to Chicago, for the purpose of having them sent to a fertilizing establishment to be slaughtered, and thus disposed of without cost and expense; that all of the proceedings herein related were made by and under the direction of the state veterinarian, acting for the state in pursuance of its laws, by virtue of which the state assumed the right and power to do the acts herein complained of, and the plaintiff surrendered control of the animals to the said veterinarian and the other officers of the law, as he supposed it to be his duty to do; that the 38 head of cattle so taken from the plaintiff, and appropriated by the state for its uses and purposes, were strong, healthy, and in fine condition, and on the plaintiff's premises were of the value of $5,000 and upwards; that the 2 so slaughtered on the plaintiff's premises were, at a post mortem examination made by competent persons, found free from disease of any kind or nature; that, as a matter of fact, no adequate test had been or was made; that none of the animals were afflicted with disease at the time they were condemned, but were at that time entirely free from disease, and healthy, strong, and vigorous animals; that the killing of animals affected with tuberculosis is not according to the most modern methods of treatment of such diseases; that the condemnation and destruction of the cattle at the time and in the manner aforesaid was wholly unnecessary as a matter of reasonable precaution to prevent the spread of disease, and a great and unnecessary waste of property; that this fact was unknown to the plaintiff until after such destruction; that the plaintiff caused due and timely application to be made to the legislature, at the session thereof beginning in January, 1897, for relief, and payment to the plaintiff of compensation for damages thereby suffered, but that the legislature neglected and refused to give the plaintiff any pay or compensation whatever for such damages; that the plaintiff has no remedy in the premises for the damages inflicted, except as against the state, none of said officers being required to give bonds to indemnify persons suffering injury or loss as a result of their action when so acting, and since all of those who conducted the proceedings herein are unable to respond in damages; that the damages suffered by the plaintiff by reason of such destruction exceed $5,000; that the 36 animals condemned and shipped to Chicago were not sent to the fertilizing establishment, but were sent to the regular market, and sold in the regular way, and examined by...

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