Newark & S. O. H. E. Co. v. Hunt

• Decision Date: 27 February 1888
• Citation: 12 A. 697,50 N.J.L. 308
• Parties: NEWARK & S. O. H. E. Co. v. HUNT et al.
• Court: New Jersey Supreme Court

12 A. 697

50 N.J.L. 308

NEWARK & S. O. H. E. Co.

v. HUNT et al.

Supreme Court of New Jersey.

February 27, 1888.

(Syllabus by the Court.)

On demurrer. The action is in trespass, and by the declaration defendants are charged with killing certain horses of plaintiff, to its damage, etc. The second, third, and fourth pleas are special pleas. The second plea avers that defendants were duly appointed assistants of the state board of health, and that by law it was the duty of such assistants, whenever any contagious disease should break out among animals in any locality, and it should appear in the judgment of such assistants that such disease was not likely to yield to any remedial treatment, to cause the animals affected by such diseases to be slaughtered; and that at the times, etc., the contagious disease known as "glanders" had broken out in plaintiff's stables in South Orange, and the horses in question were affected therewith, and said disease was not likely, in defendants' judgment, to yield to any remedial treatment; wherefore the defendants slaughtered, etc., said horses, as it was lawful for them to do, for the cause aforesaid. The third plea avers the due appointment of defendants as assistants of said board, and that by law it was the duty of such assistants, whenever any contagious disease should break out among animals in any locality, and it should appear, in the judgment of such assistants, that such disease threatened its spread to other animals, to cause the animals affected with such disease to be immediately slaughtered; and that at the times, etc., a contagious disease, known as "glanders," had broken out in plaintiff's stables, and the horses in question were affected therewith, and said disease, in the judgment of defendants, threatened its spread to other animals; wherefore defendants slaughtered said horses, as it was lawful, etc. The fourth plea avers the due appointment of the defendant Hunt as a member of said board, and of the defendant Hawk as an assistant thereof, and that by law it was the duty of each member of said board, whenever satisfied that any horse, etc., in this state was diseased with glanders, to cause such horse, etc., to be immediately slaughtered; and that at the times, etc., said horses were each diseased with glanders, and said Hunt was satisfied thereof; wherefore said Hunt, in discharge of the duty imposed, etc., directed said Hawk, assistant as aforesaid, to destroy, and said Hawk, in compliance with such directions, did destroy, said horses, as it was lawful, etc. Plaintiff filed a general demurrer to these pleas.

Argued at November term, 1887, before the Chief Justice and Justices DIXON, REED, and MAGIE.

Mr. Borcherling and C. Parker, for plaintiff. Atty. Gen. Stockton and Wm. S. Gummere, for defendants.

MAGIE, J., (after stating the facts as above.) The second and third pleas have evidently been based upon the provisions of the "Supplement to an act entitled 'An act to establish a state board of health,' approved March 9, 1887," which supplement was approved March 2, 1880, (Laws 1880, p. 322.) The fourth plea has evidently been based upon the provisions of the "Supplement to an act entitled 'An act to prevent the spread of glanders in horses,' approved March 31, 1864," which supplement was approved March 12, 1884, (Supp. Rev. 8.) If any specification of the causes of the demurrer were demanded and furnished, they have not been printed, and the only objections to the pleas which will be considered, are those which are shown in the brief of counsel.

The first objection seems addressed to the two pleas based upon the act of 1880. The contention is that the provisions of that act do not apply to horses. The first section of that act gave power to the state board of health to determine whether pleuro-pneumonia, rinderpest, or any other contagious or infectious disease existed among animals in any county in the state. From the enumeration of two diseases which usually afflict animals of the bovine species, and from the fact that in a proceeding prescribed in the second section, notice is required from the owner of "said cattle," it is argued that the provisions of the act are to be restricted to animals ordinarily called "cattle;" that is to horned or neat cattle. But the word "cattle" is defined as including all domestic quadrupeds, such as horses, mules, etc., as well as oxen, cows, etc. Worcest. Dict. tit. "Cattle." It has been held to bear a legal significance which includes horses. Rex v. Paty, 2 W. Bl. 721. The word "animals," elsewhere used in every part of the act, has a signification broad enough to include horses. When the legislature expressly gives power in respect to any contagious or infectious disease among animals, I see no reason to limit the intention within narrower bounds than will be set by the acceptance of the words giving power in their natural meaning. Thus accepted, a contagious disease affecting horses plainly comes within the intent of the act.

It is next objected that the provisions of the act of 1884 cannot be resorted to in support of the fourth plea, because the trespass charged in the declaration is there said to have been committed on August 1, 1883. But the trespass is, in fact, charged in the declaration to have been committed on August 1, 1883, and on divers days and times between that day and the commencement of the suit which was in March, 1886. The act of trespass charged in the declaration is, however, one of a nature not possible to be continued. Laying a trespass of that nature with a continuando, or on divers clays and times, was formerly bad on special demurrer. When so laid, upon objection made at the trial, the plaintiff was confined to evidence of a single trespass, but might prove any trespass committed before the commencement of the suit. Janson v. Brown, 1 Campb. 42, note 1. Since, therefore, under the declaration, plaintiff could prove any killing of horses by defendants on any day prior to the commencement of the suit in March, 1886, defendants may properly set up the power conferred by the act of March 12, 1884, as a justification for any killing which they admit after the latter date. The fourth plea does no more than this, and is not open to this objection.

It is next objected that the acts in question are within the prohibition of that clause of the fourteenth amendment of the federal constitution which reads: "Nor shall any state deprive any person of life, liberty, or property without due process of law." This is the only constitutional objection urged, and no other has been considered. The power to abate any condition of things which, from its injurious effect on public rights, public convenience, or public morals, constituted a common nuisance, was a recognized part of the common-law scheme of government brought...