Miller v. Horton

Citation152 Mass. 540,26 N.E. 100
PartiesMILLER v. HORTON et al.
Decision Date01 January 1891
CourtUnited States State Supreme Judicial Court of Massachusetts

152 Mass. 540
26 N.E. 100

MILLER
v.
HORTON et al.

Supreme Judicial Court of Massachusetts, Bristol.

Jan. 1, 1891.



Exceptions from superior court, Bristol county; BLODGETT, Judge.
[152 Mass. 541]J. Brown, for plaintiff.

H.J. Fuller, for defendants.


HOLMES, J.

This is an action of tort for killing the plaintiff's horse. The defendants admit the killing, but justify as members of the board of health of the town of Rehoboth, under an order addressed to the board and signed by two of the three commissioners of contagious diseases among domestic animals, [152 Mass. 542]appointed under St.1885, c. 378, and acting under the alleged authority of St.1887, c. 252, § 13. This order declared that it was adjudged that the horse had the glanders, and that it was condemned, and directed the defendants to cause it to be killed. The judge before whom the case was tried found that the horse had not the glanders, but declined to rule that the defendants had failed to make out their justification, and found for the defendants. The plaintiff excepted.

The language of the material part of section 13 of the act of 1887 is: “In all cases of farcy or glanders the commissioners, having condemned the animal infected therewith, shall cause such animal to be killed without an appraisal, but may pay the owner, or any other person, an equitable sum for the killing and burial thereof.” Taken literally, these words only give the commissioners jurisdiction and power to condemn a horse that really has the glanders. The question is whether they go further by implication, so that, if a horse which has not the disease is condemned by the commissioners, their order will protect the man who kills it, in a subsequent suit by the owner for compensation.

The main ground for reading into the statute an intent to make the commissioners' order an absolute protection is that there is no provision for compensation to the owner in this class of cases, and, therefore, unless the order is a protection, those who carry it out will do so at their peril. Such a construction, when once known, would be apt to destroy the efficiency of the clause, as few people could be found to carry out orders on these terms.

On the other hand, this same absence of any provision for compensation to the owner, even if not plainly founded on the assumption that only a worthless animal, and a nuisance, is in question, still would be an equally strong argument for keeping to the literal and narrower interpretation. If the legislature had had in mind the possible destruction of healthy horses, there was no reason in the world why it should not have provided for paying the owners. The twelfth section does provide for paying them in all cases where they are not in fault, unless this is an exception. When, as here, the horse not only is not to be paid for, but may be condemned, without appeal, and killed, without giving the owner a hearing, or even notice, the grounds are very [152 Mass. 543]strong for believing that the statute means no more than it says, and is intended to authorize the killing of actually infected horses only. If the commissioners had felt any doubt, they could have had the horse appraised

[26 N.E. 101]

under section 12. Whether an action would have lain in that case, we need not decide.

The reasons for this construction seem decisive to a majority of the court when they consider the grave questions which would arise as to the constitutionality of the clause, if it were construed the other way.

The thirteenth section of the act of 1887, by implication, declares horses with the glanders to be nuisances, and we assume in favor of the defendant that it may do so constitutionally, and may authorize them to be killed without compensation to the owners. But the statute does not declare all horses to be nuisances, and the question is whether, if the owner of the horse denies that his horse falls within the class declared to be so, the legislature can make the ex parte decision of a board like this conclusive upon him. That question is answered by the decision in Fisher v. McGirr, 1 Gray, 1. It is decided there that the owner has a right to be heard, and, further, that only a trial by jury satisfies the provision of article 12 of the declaration of rights, that no subject shall be deprived of his property but by the judgment of his peers, or the law of the land.

In Belcher v. Farrar, 8 Allen, 325, 328, it was said that “it would violate one of the fundamental principles of justice to deprive a party absolutely of the free use and enjoyment of his estate under an allegation that the purpose to which it was appropriated, or the mode of its occupation, was injurious to the health and comfort of others, and created a nuisance, without giving the owner an opportunity to appear and disprove the allegation, and protect his property from the restraint to which it was proposed to subject it.” See, also, Sawyer v. Board, 125 Mass. 182;Winthrop v. Farrar, 11 Allen, 398.

Of course there cannot be a trial by jury before killing an animal supposed to have a contagious disease, and we assume that the legislature may authorize its destruction in such emergencies without a hearing beforehand. But it does not follow that it can throw the loss on the owner without a hearing. If he cannot be heard beforehand he may be heard afterwards. The [152 Mass. 544]statute may provide for paying him in case it should appear that his property was not what the legislature has declared to be a nuisance, and may give him his hearing in that way. If it does not do so, the statute may leave those who act under it to proceed at their peril, and the owner gets his hearing in an action against them.

An illustration, although not strictly an instance of the former mode, may be found in the statute authorizing firemen or engineers of fire departments to order houses to be pulled down in order to prevent the spreading of a fire, and making the town answerable to the house owner except in certain cases in which the house is practically worthless because it would have burned if it had not been destroyed. Pub.St. c. 35, §§ 3-5. No doubt the order would be conclusive in its legislative capacity or “so far as the res is concerned,” as is said in Salem v. Railroad Co., 98 Mass. 431, 449; that is to say, that the house should be pulled down. But the owner is preserved his right to a hearing in a subsequent proceeding for compensation. On the other hand, a case where a party proceeds at his peril is when he pulls down a house for the same object without the authority of statute It is said that if the destruction is necessary, he is not liable. But by the common law as understood in this commonwealth, “if there be no necessity, then the individual who did the act shall be responsible.” SHAW, C.J., in Taylor v. Plymouth, 8 Metc. (Mass.) 462, 465; Philadelphia v. Scott, 81 Pa.St. 80, 87. See Mitchell v. Harmony, 13 How. 115, 134, 135. This means that the determination of the individual is subject to revision by a jury in an action, and is not conclusive on the owner of the house.

So in Blair v. Forehand, 100 Mass. 136, where it was held that a statute constitutionally might authorize the killing of unlicensed dogs as nuisances, it was assumed that the...

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