Neer v. State Live Stock Sanitary Bd.

• Decision Date: 06 August 1918
• Citation: Neer v. State Live Stock Sanitary Bd., 40 N.D. 340, 168 N.W. 601 (N.D. 1918)
• Parties: NEER v. STATE LIVE STOCK SANITARY BOARD.
• Court: North Dakota Supreme Court

40 N.D. 340

168 N.W. 601

NEER

v.STATE LIVE STOCK SANITARY BOARD.

Supreme Court of North Dakota.

May 4, 1918.

On Petition for Rehearing, Aug. 6, 1918.

Syllabus by the Court.

The Fifth and Fourteenth Amendments of the federal Constitution and their counterparts in the Constitutions of the several states gave no new rights, but merely guaranteed the permanence of those already existing.

What is and what is not due process of law depends upon the circumstances, and the constitutional provisions which provide for a preliminary court procedure are often held to have no application to statutes which are passed in the exercise of the so-called police power of the state.

Sometimes summary proceedings are necessary, and the summary abatement of nuisances without judicial procedure was well known to the common law prior to the adoption of the state and federal Constitutions.

There is no property right in that which is a nuisance, and no right of liberty in that which is harmful to the public weal.

The state may interfere with private industry whenever the public welfare demands, and in this particular a large measure of 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 protection of these interests.

The state may delegate to an administrative board the power to adopt reasonable regulations and to adopt what tests it deems necessary in order to ascertain the existence of a disease. This is not a delegation of legislative power. It merely relates to a procedure in the law's execution.

The finding or adjudication of a live stock sanitary board cannot generally be made conclusive upon the owner as to the fact and existence of the nuisance, or that it comes within the terms of the statute prohibiting it, so as to deny the owner the right to a trial by jury and the recovery of damages, if the property so destroyed is not, in fact, a nuisance, or does not, in fact, come within the terms of the statute. Summary proceedings however may be authorized by the Legislature against the thing declared to be a nuisance and such property may be destroyed without a hearing before a jury provided that the right to the action for damages remains. Due process of law is not violated by such a procedure.

Where a statute authorizes a public board to quarantine or kill disease-infected animals, the determination of which of the two remedies shall be adopted lies within the discretion of the board, and such discretion cannot be reviewed by the courts in the absence of fraud or palpable mistake of fact. In all of such matters, the only question in which the courts or the juries are concerned is the ultimate question whether the animal was diseased or not, or came within the provisions of the statute.

The so-called complement-fixation test for the detection of the disease known as dourine appears to meet with the approval of the scientists of both the United States and Canada, and the courts will not interfere with the discretion of the live stock sanitary board in adopting the same, and in ordering horses to be killed, which react thereto, even though it is a chemical test merely and the horses show no physical symptoms of the disease.

Section 2686 of the Compiled Laws of 1913 leaves it to the discretion of the live stock sanitary board whether horses which are infected with the disease known as dourine shall be killed or isolated, and the courts will not interfere with or seek to control such discretion.

The fact that the disease known as dourine can only be communicated in the act of breeding, and that the owners of diseased mares offer to isolate the same and give bonds that they shall not be bred, does not prevent the live stock sanitary board from ordering their destruction.

On Petition for Rehearing.

The Legislature may, in the exercise of the police power, provide for the quarantine of diseased or suspected animals and for the destruction of animals actually infected with contagious diseases.

Under the laws of this state, the live stock sanitary board is empowered to quarantine any domestic animal which is infected with a contagious or infectious disease, or which may have been exposed to infection therefrom; but it has no power to kill an animal unless it is in fact infected with a contagious or infectious disease.

Whether it is necessary to kill an animal infected with dourine, or whether a quarantine is sufficient are questions to be determined by the live stock sanitary board. And it is held that, if the mare involved in this litigation is in fact infected with dourine, the defendant board has power to order her destruction; but, if she is in fact free from contagious or infectious disease, the defendant board has no power or jurisdiction to order such destruction.

In the case at bar, where more than three years have elapsed since the defendant board ordered the mare killed, and it appears that she has been in the past and is at the present time in apparent good health, and has at no time manifested any clinical symptoms of dourine, conditions so unusual are presented as to indicate a strong probability that the mare is in fact free from such disease, and it is ordered that the case be remanded for a new trial upon the question of whether the mare is in fact infected with dourine.

Appeal from District Court, McKenzie County; Frank Fisk, Judge.

Suit by A. M. Neer against the State Live Stock Sanitary Board to restrain the killing of a diseased horse. Judgment for defendant, and plaintiff appeals. Affirmed.

Robinson and Grace, JJ., dissenting.

Burdick & Converse, of Williston, for appellant. William Langer, Atty. Gen., and Edward B. Cox and George F. Shafer, Asst. Attys. Gen., for respondent.

BRUCE, C. J.

This is an appeal from an order dissolving a temporary restraining order, and from a judgment dismissing the action. The plaintiff sought to permanently restrain the state live stock sanitary board from destroying a certain mare, which the said board had determined to be “infected with a dangerous, contagious, and infectious disease, known as dourine.”

The statutes under which the board acted are as follows:

“Sec. 2678. A board is hereby established to be known as the ‘state live stock sanitary board.’ This board shall consist of five members to be appointed by the Governor. * * * Each member of said board shall be a qualified elector of the state of North Dakota. Three members of said board shall be persons who are financially interested in the breeding and maintenance of live stock in the state of North Dakota and the other two members of said board shall be competent veterinarians who are graduates of some regularly organized and recognized veterinary college or university.”

“Sec. 2686. Authority is hereby given to said state live stock sanitary board to take all steps it may deem necessary to control, suppress and eradicate any and all contagious and infectious diseases among any of the domestic animals of the state, and to that end said board is hereby empowered to quarantine any domestic animal which is infected with any such disease or which has been exposed to infection therefrom, and to kill any animal so infected; to regulate or prohibit the arrival in or departure from the state, or any portion of the state, of any such exposed or infected animal, and at the cost of the owner thereof to detain any domestic animal found in violation of any such regulation or prohibition.

Sec. 2687. Whenever a domestic animal has been adjudged to be affected with a contagious or infectious disease and has been ordered killed by said state live stock sanitary board or by an accredited agent thereof, the owner or keeper of said animal shall be notified thereof, and within twenty-four hours thereafter its owner or keeper may file a protest against the killing thereof with said board or its accredited agent who has ordered such animal killed. Such notice shall state under oath that to the best of the knowledge and belief of the person making such protest, such animal is not infected with any contagious or infectious disease; whereupon an examination of the animal involved shall be made by three experts, one of said experts to be appointed by said state live stock sanitary board, one to be appointed by the person making such protest and the two thus appointed to choose a third, but all experts shall be persons learned in veterinary medicine and surgery and graduates of a regularly organized and recognized veterinary college.

Sec. 2688. In case all three experts or any two of them declare that such animal is free from any contagious or infectious disease, then the expense of the consultation shall be paid by the state live stock sanitary board out of the funds appropriated for the carrying into effect of this act (section 2696), and in case the three experts or any two of them declare the animal to be infected with a contagious or infectious disease then the expenses incurred in the consultation shall be paid by the person making the protest, and said expenses may be collected the same as in case of appeal in civil action.”

The board also acted under the following rules and regulations which had been regularly adopted by it:

“The state live stock sanitary board having determined that dourine existing in horses in this state can only be eradicated by adopting rigid measures, therefore by authority granted in sections 2 and 9 of chapter 169, S. L. 1907, the following regulations for the eradication of dourine are hereby established:

Section 1. Any owner or person in charge of any mares, stallions or jackasses, shall when ordered by an authorized agent of the live stock sanitary board, round up or gather and submit said animals to such inspection as the agent of the live stock sanitary board shall direct, or be subjected to arrest, as provided for in section 15, chapter 169, S. L. 1907.

Sec. 2. Whenever it has been determined by...