Neer v. State Live Stock Sanitary Board

• Decision Date: 04 May 1918
• Docket Number: 1915
• Citation: 168 N.W. 601,40 N.D. 340
• Court: North Dakota Supreme Court

168 N.W. 601

40 N.D. 340

A. M. NEER, Appellant, v. STATE LIVE STOCK SANITARY BOARD, Respondent

No. 1915

Supreme Court of North Dakota

May 4, 1918

Rehearing denied August 6, 1918.

Action to restrain the killing of a diseased horse.

Appeal from the District Court of McKenzie County, Honorable Frank Fisk, Judge.

Judgment for defendant. Plaintiff appeals.

Affirmed.

Burdick & Converse, for appellant.

To permit the destruction of the property here in question would amount to the taking of property without due process of law and that the legislative act so authorizing is unconstitutional. Martin v. Tyler, 4 N.D. 278, 25 L R. A. 838, 60 N.W. 392; Comp. Laws 1913, §§ 2687, 2688.

The board created by the selection of three experts to examine animals suspected of disease does not constitute a tribunal nor a court, in the sense that the requirements of due process of law are met. The constitutions are framed upon the principle that the courts are the guardians of the personal and property rights of the citizen. Any statute which seeks to deprive citizens of the right to look to the courts for protection is in conflict with the Constitution. 6 R. C. L 434, 456, 460-462.

To justify an interference with the personal liberty of a man who was quarantined on account of the prevalence of smallpox, there must be a necessity for such action in his particular case. Re Smith, 146 N.Y. 68, 28 L.R.A. 820, 40 N.E. 497; Murst v. Warner, 102 Mich. 238, 26 L.R.A. 484, 60 N.W. 440; Wilson v. Alabama G. S. R. Co., 77 Miss. 714, 52 L.R.A. 357; Pierce v. Dillingham, 203 Ill. 148, 62 L.R.A. 888.

There must be an equally clear necessity to justify the invasion of one's property rights. State ex rel. Adams v. Burdge, 95 Wis. 390, 37 L.R.A. 157, 70 N.W. 347; State v. Duckworth, 5 Idaho, 642, 51 P. 456; Morton v. New York, 140 N.Y. 207, 22 L.R.A. 241, 95 Am. St. Rep. 199; People v. Bieseker, 169 N.Y. 53, 88 Am. St. Rep. 534, 61 N.E. 990; Lawton v. Steele, 119 N.Y. 226, 16 Am. St. Rep. 813, 819; Pierce v. Dillingham, 203 Ill. 148, 62 L.R.A. 888; Toledo Wabash & W. R. Co. v. Jacksonville, 67 Ill. 37, 16 Am. St. Rep. 611.

"Where rights are infringed, where sound principles are overthrown, where the general system of law is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects." 2 Cranch, 390, 2 L.Ed. 314.

Under the statutes in question it is immaterial that the board acted in good faith and in accordance with the law, in the destruction of supposedly diseased animals. The fact as to whether or not the animals had the disease is still open to investigation in court. Miller v. Horton, 10 L.R.A. 116; Pearson v. Zehr, 138 Ill. 48, 32 Am. St. Rep. 113, 29 N.E. 854.

Due process of law requires a hearing and full trial upon the merits. Greensboro v. Ehrenreich, 80 Ala. 579, 60 Am. Rep. 130; Kosciusco v. Slomberg, 68 Miss. 469, 12 L.R.A. 528, 9 So. 297.

William Langer, Attorney General, and Edward B. Cox and George F. Shafer, Assistant Attorneys General, for respondent.

Due process, as guaranteed by the Federal and state Constitutions and as interpreted by the courts in instances of this kind, is accorded the appellant by the laws and procedure provided in the Code. Comp. Laws 1913, §§ 2686, 2687.

That which is "due process" is necessarily dependent upon different circumstances. Sometimes summary proceedings are sufficient to meet all its requirements. The summary abatement of nuisances without judicial proceedings was well known to the common law prior to the adoption of the Constitution, and the provisions of the 14th Amendment were not intended to prevent such action. Such actions are in the nature of a protection to the health, morals, and safety of the community. It is not necessary, in such cases, that the state make compensation. Lawton v. Steele, 152 U.S. 133; New Orleans v. N. Charouleau, 18 L.R.A. (N.S.) 368, 46 So. 911.

Defendant was not entitled to a judicial hearing before his property was condemned. If a nuisance existed, it was within the power of the board to abate it, in the manner prescribed by law. Houston v. State, 98 Wis. 481, 42 L.R.A. 39, 74 N.W. 111; Bittenhaus v. Johnston, 92 Wis. 596, 32 L.R.A. 380; Mugler v. Kansas, 123 U.S. 623; Kidd v. Pearson, 128 U.S. 1.

"The constitutional provisions declaring that property shall not be taken without due process of law have no application to statutes enacted in the exercise of the police power." Comp. Laws 1913, § 2687; Deems v. Baltimore, 80 Md. 164, 26 L.R.A. 541; People v. Vandecarr, 175 N.Y. 440, 67 N.E. 913, affirmed in 199 U.S. 352; State ex rel. Dakota Trust Co. v. Stutsman, 24 N.D. 80, 6 Dak. 501; 3 C. J. 51 and note 87; 6 R. C. L. 174, 175, 448, 454.

In taking lawful steps to prevent the spreading of an infectious or contagious disease, among live stock, the Sanitary Board exercises its own discretion, and the courts have no voice in or control over such matter. Courts cannot substitute their judgment for that of such board unless it be made to clearly appear that the board arbitrarily exceeded its authority or abused its discretion. State ex rel. Dak. Trust Co. v. Stutsman, 24 N.D. 80; Shipman v. Live Stock Sanitary Commission (Mich.) 73 N.W. 817; Maynard v. Freeman, 27 L.R.A. (N.S.) 1188 and note (Tex.) 60 S.W. 334; Lewis v. Shelby Co. (Tenn.) 43 L.R.A. (N.S.) 1076 and note; 22 Cyc. 404, 405, 23 L.R.A. 1188 and note.

The courts recognize the validity of statutes empowering boards of health and other governmental agencies to make use of scientific methods or tests in determining the presence of dangerous and infectious diseases, when such methods or tests have disclosed the fact that the disease was present in an animal, even though the symptoms thereof were not otherwise determined or open and apparent to the naked eye. Adams v. Milwaukee (Wis.) 129 N.W. 518; 43 L.R.A. (N.S.) 1067 and note; State v. Nelson, 34 L.R.A. 318, 68 N.W. 1066; New Orleans v. Charouleau, 18 L.R.A. (N.S.) 368, 46 So. 911.

BRUCE, Ch. J. CHRISTIANSON, J. (concurring specially). ROBINSON, J., GRACE, J., (dissenting).

OPINION

BRUCE, Ch. 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 [Comp. Laws 1913] under which the board acted are as follows:

"Section 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."

"Section 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."

"Section 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."

"Section 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 [§ 2696], and in case the three experts or any two of them declare the animal to be affected 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...