Peverill v. Bd. of Sup'rs of Black Hawk Cnty.

• Decision Date: 27 October 1925
• Docket Number: No. 37047.,37047.
• Citation: 205 N.W. 543,201 Iowa 1050
• Parties: PEVERILL v. BOARD OF SUP'RS OF BLACK HAWK COUNTY ET AL.
• Court: Iowa Supreme Court

201 Iowa 1050

205 N.W. 543

PEVERILL

v.BOARD OF SUP'RS OF BLACK HAWK COUNTY ET AL.

No. 37047.

Supreme Court of Iowa.

Oct. 27, 1925.

Appeal from District Court, Black Hawk County; E. B. Stiles, Judge.

Action in equity to enjoin the County Auditor and Board of Supervisors of Black Hawk County from publishing a certain notice made necessary by law for the enrollment of any county as an accredited area for the eradication of bovine tuberculosis. A demurrer to the petition was overruled, and decree entered as prayed. Defendants appeal. Reversed and remanded.Ben J. Gibson, Atty. Gen., Herbert A. Huff, Asst. Atty. Gen., and A. G. Reid, Asst. County Atty., of Waterloo, for appellants.

Walter P. Jensen and E. H. McCoy, both of Waterloo, for appellee.

STEVENS, J.

This action, which is prosecuted by a resident property owner of Black Hawk county, was instituted in equity to enjoin appellants, who are respectively the members of the board of supervisors and county auditor of said county, from publishingthe necessary notice for the enrollment of the county as an accredited area for the eradication of bovine tuberculosis. The allegations of the petition deemed admitted by the demurrer filed thereto will be fully stated a little later.

Prior to the enactment of chapter 23, Laws of the Extra Session of the 40th General Assembly, which supersedes all previous legislation on the subject, the law relating to the eradication of bovine tuberculosis was contained in chapter 287, Laws of the 38th General Assembly, as amended and supplemented by chapter 48, Laws of the 40th General Assembly (Regular Session). The portions of the above chapters necessary to a proper understanding and decision of this appeal are as follows:

Section 10, c. 287, 38th G. A.: “That owners of herds who desire to have their herds examined and tested with a view to detecting the presence of tuberculosis, and with a further view of freeing their herds from such disease, may apply to the commission for testing and examination. A blank for such application shall be furnished by the commission and shall include such an agreement on the part of the person making the said application that he will conform to and abide by the rules and regulations laid down by said commission and follow the instructions of said commission designated to prevent the reinfection of the herd and to suppress the disease or prevent the spread thereof. Upon receiving such application, or if herds of animals are examined on the commission's own motion, the commission shall, as soon as practicable, cause such test or an examination to be made. If, after such an examination, tubercular animals are found therein, the said commission shall have authority to order such disposition of them as it considers most desirable and economical. Before being tested, such animals shall be appraised at their cash value for breeding, dairy or beef purposes by a representative of the commission or a representative of the United States Bureau of Animal Industry or both together with the owner. If these cannot agree as to the amount of the appraisal, there shall be appointed three competent and disinterested men, one appointed by the commission, one by the owner, and the third by the first two, to appraise such animals, which appraisal shall be final. The expense of such appraisal shall be borne by the state. In the case of pure bred cattle, the pedigree shall be proved by certificate of registry from the herd books where registered. If it is deemed advisable to slaughter an animal reacting to the tuberculin test, the owner shall be paid from the funds of the state treasury not otherwise appropriated, a sum equal to one-third of the difference between the proceeds from the sale of the salvage, which the owner receives, and the appraised breeding value of the animal, provided the state does not pay to the owner a sum in excess of eighty dollars for any pure bred animal and forty dollars for any grade. In all cases, it is provided the animal has been owned at least six months, in the state, by the applicant, prior to the condemnation thereof.”

Section 10b, c. 48, 40th G. A.: “Whenever a petition signed by fifty-one per cent. of the owners of breeding cattle within the county, as shown by the assessor's reports, together with agreements as provided in section ten (10) hereof, shall be presented to the board of supervisors, the board shall make application to the commission of animal health of the state for the enrollment of said county under the county area plan and shall, at the same time forward to the commission of animal health the agreements signed as provided herein. The commission of animal health shall, when it receives agreements signed by fifty-one per cent. of the owners of breeding cattle within such county, designate such county as a county area testing unit and it shall forthwith proceed with the eradication of bovine tuberculosis in such county under the county area plan as provided herein.”

Section 10m, c. 48, 40th G. A.: “Whenever seventy-five per cent. of the owners of breeding cattle in any county operating under the county area plan, shall have signed agreements with the commission of animal health, said commission shall notify the board of supervisors of such county of such fact and such board of supervisors, shall, at its next regular meeting, by resolution, declare such county's intention to become an accredited area and it shall thereafter become the duty of every owner of breeding cattle within said county to cause his breeding cattle to be tested under the accredited area plan.”

The foregoing statutes were substantially re-enacted in 40th Ex. &. a. c. 23. Prior enactments made no provision for notice or a hearing before the board of supervisors of a petition of 51 per cent. of the owners of breeding cattle to have the county designated as a county testing unit, but the following was enacted as a part of section 20, chapter 23, aforesaid:

“* * * The board shall cause a notice to be published for two consecutive weeks in two official county papers of the date of the hearing on said petition, which shall not be less than five nor more than ten days after the last publication, said date to be set by the county auditor. If, after such hearing, or if no objections are filed to such petition on or before such date, the petition shall be found sufficient, the board shall make application to the secretary of agriculture for the enrollment of the county under such plan. * * *”

No provision will be found in the present law for notice of a hearing before the secretary of agriculture upon the application of 75 per cent. of the owners of breeding cattle for the enrollment of a county as an accredited area. Reference is made above to both the commission of animal health and the secretary of agriculture. To avoid confusion in the use of these terms, it should be explained that the commission of animal health, embracing all its administration agencies previously under its control, was consolidated with the department of agriculture, which was created by chapter 46, Laws of the 40th General Assembly. This enactment also created the office of Secretary of Agriculture and gave that officer jurisdiction in matters pertaining to the eradication of bovine tuberculosis and many other matters not material to this controversy.

Black Hawk county became a county area testing unit upon the petition of 51 per cent. of the owners of breeding cattle resident therein under the provisions of chapter 48, Laws of the 40th General Assembly. Subsequently, the secretary of agriculture, acting under the provisions of chapter 23, Laws of the Extra Session, enrolled the county as an accredited area, and notified the board of supervisors to publish the required notice. It was to enjoin the publication of this notice that this action was commenced.

The petition and amendment thereto, to which the demurrer was filed, is somewhat vague in essential particulars, but, stated briefly, it presents three principal contentions for decision, that is, that chapters 48 and 49, Laws of the 40th General Assembly, which, as stated, were in force when Black Hawk county was designated as a county testing unit, were void because in violation of the state and federal Constitutions; that section 8 of chapter 23, Laws of the Extra Session of the 40th General Assembly, violates section 21, article 1, of the Constitution of Iowa, which prohibits the enactment of any law impairing the obligation of contracts; that the action of the secretary of agriculture in attempting to enroll Black Hawk county as an accredited area was without jurisdiction or authority, for the reason that no petition signed by 75 per cent. of the owners of breeding cattle resident in said county was ever presented to, or filed with, the department of agriculture, and that sufficient of the names signed to purported petitions and agreements so filed was obtained by fraud, or consisted of nonbreeders or nonresident owners of breeding cattle, or was unauthorized or duplications, to reduce the percentage of bona fide petitions and agreements to less than the required percentage. To the above should be added the allegations of withdrawals from petitions and agreements and that the secretary of agriculture, at the time he enrolled said county as an accredited area and notified the board of supervisors thereof, knew the petitions and agreements on file in his office did not equal 75 per cent. of the owners of breeding cattle in said county, and that he was therefore guilty of at least constructive fraud in making such enrollment.

The remaining contention of appellee is that section 26 of chapter 23, Laws of the Extra Session of the 40th General Assembly, which requires the county auditor of each county in which the county eradication plan is in force to certify to the secretary of agriculture the number of owners of breeding cattle in his county, after each annual...