Pierce v. Dillingham

• Decision Date: 16 June 1903
• Citation: 203 Ill. 148,67 N.E. 846
• Parties: PIERCE et al. v. DILLINGHAM.
• Court: Illinois Supreme Court

203 Ill. 148

67 N.E. 846

PIERCE et al.

v.DILLINGHAM.

Supreme Court of Illinois.

June 16, 1903.

Appeal from Appellate Court, Second District.

Action by F. P. Dillingham against Charles A. Pierce and others for the recovery of certain cattle. From a judgment in favor of plaintiff, affirmed by the Appellate Court (96 Ill. App. 300), defendants appeal. Affirmed.H. J. Hamlin, Atty. Gen. (C. H. Wayne and F. W. Joslyn, of counsel), for appellants.

Russell & Hazelhurst and D. B. Sherwood, for appellee.

This is an appeal from a judgment of the Appellate Court for the Second District affirming a judgment of the circuit court of Kane county in an action of replevin brought by appellee to recover from appellants 23 head of cattle. A plea of justification was filed to the declaration, to which demurrers, special and general, were filed. The demurrers were sustained, and defendants elected to stand by their plea, the sufficiency of which is the only question presented on this appeal.

At the time the facts in this case took place, appellant Charles A. Pierce was veterinarian of the state board of live stock commissioners, and on the 19th of May, 1900, appellee imported into this state, from Wisconsin, 23 dairy and breeding cattle; such cattle being unaccompanied with a certificate of tuberculin test, as required by the rules of said state board. On said date appellant Charles A. Pierce, as such veterinarian, in accordance with the rules of said board, quarantined and took possession of said cattle at the stock yards at Dundee, Ill., with the aid of the sheriff of Kane county, and placed Lyman Andrews in charge as custodian, and Pierce proceeded to test such cattle. On May 22, 1900, appellee filed his affidavit in replevin, alleging the wrongful detention of said cattle and that he was entitled to their possession. In due course, declaration and plea thereto were subsequently filed. The plea sets up that the state board of live stock commissioners on June 13, 1899, reported in writing to John R. Tanner, Governor, that ‘tuberculosis, a dangerously contagious disease, prevails to a greater or less extent among the cattle constituting the dairy and breeding herds of all the states and territories of the United States and foreign countries, and that cattle affected with this disease, brought into the state of Illinois, are dangerous, and liable to communicate said disease to other cattle with which they are brought in contact,’ and requesting the Governor to issue a proclamation in pursuance of the terms of ‘An act to revise the law in relation to the suppression and prevention of the spread of contagious and infectious diseases among domestic animals,’ and requesting the Governor, in such proclamation, to schedule all states and territories within the United States, other than the state of Illinois, and all foreign countries, and prohibit the importation of dairy and breeding cattle (cows, bulls, or calves) therefrom into the state of Illinois, except in accordance with the rules and regulations adopted by said board; that the board of live stock commissioners on June 13, 1899, submitted with their report to the Governor a set of rules and regulations prescribed by the said board to govern the importation of dairy and breeding cattle into the state of Illinois from states and territories to be scheduled by the Governor's proclamation, ‘as requested by the said report with reference to tuberculosis among cattle’; that the rules so submitted were on the 13th day of June, 1899, duly approved by the Governor. The rules of said board are set out in the plea, and are substantially as follows:

Rule 1. Any shipper or owner of dairy or breeding cattle in states or territories, scheduled or to be scheduled by the Governor on account of tuberculosis among cattle, desiring to ship such cattle into the state of Illinois, must, before offering the same for shipment to any railroad or transportation company, or before driving the same into this state, have the cattle tested with tuberculin by a veterinarian recognized by the sanitary authorities of the state in which such owner or shipper resides, and authorized by such authorities to make such test.

Rule 2. Before offering any such cattle for shipment as aforesaid, or before driving the same into the state of Illinois, a statement, in duplicate, of temperature taken in the test provided for in rule 1, certified by such duly authorized and recognized veterinarian, with the affidavit on the back thereof of the owner, setting forth that the cattle to be shipped or transported or driven into this state are the same referred to in the statement of temperature therein, must be sent to the state board of live stock commissioners at Springfield, Ill., for indorsement or acceptance and approval of such test, which indorsement, if the test is accepted and approved, shall be made by the secretary or chairman of said board, and the original copy of the statement, thus indorsed, will be returned to the owner.

Rule 3. In conducting such tuberculin test, the veterinarian shall take at least four preliminary temperatures at intervals of two hours during the day of the evening of injecting, and at least five temperatures at intervals of two hours, commencing ten hours after injection.

Rule 4. No shipment of dairy or breeding cattle destined to any point in the state of Illinois from states and territories prescribed and designated in the proclamation of the Governor aforesaid shall be received by any railroad or transportation company doing business in the state of Illinois, from the original shipper or from any connecting railroad or transportation company, unless the same be accompanied by the certificate designated in rule 2, properly indorsed as provided therein; such certificate to be attached to the way bill, memorandumbill, or bill of lading accompanying the shipment, and to be delivered with said bill to the consignee.

Rule 5. Any dairy or breeding cattle (cows, bulls, or calves), shipped or driven into the state of Illinois from other states and territories designated and described in the governor's proclamation aforesaid, without being accompanied by the certificate aforesaid, properly indorsed, will, upon discovery, be placed in quarantine until tested with tuberculin by a veterinarian designated by this board, which test shall be made at the expense of the owner, and any cattle that shall react to such test and be condemned will be destroyed without compensation to the owner.

The plea then recites that the Governor, in pursuance of such report, issued a proclamation (which is set out hereafter). The plea further recites: ‘That on the 19th day of May, 1900, the said proclamation and the said rules of the said state board of live stock commissioners being then in full force and virtue and unrevoked, the said 23 cows mentioned in said declaration, then and there being dairy and breeding cattle, arrived in Dundee, Kane county, Ill., in a special stock car of the Chicago & Northwestern Railway Company, and were there delivered by the said railway company to the plaintiff, which said twenty-three cows had been, during the month of May, 1900, shipped into the state of Illinois from the state of Wisconsin by the plaintiff, and which said cows were not then and there accompanied by a certificate of tuberculin test of the said cows, as designated in rule 2 of the said rules and regulations of said board of live stock commissioners of the state of Illinois, approved by the said Governor, and which said 23 cows were intended to be used for dairy and breeding purposes in said state of Illinois; that this defendant Charles A. Pierce, assistant state veterinarian, then and there, by virtue of the statutes of this state and the said proclamation and said rules, served a notice of quarantine of the said 23 cows upon the plaintiff personally, and after the service of the said quarantine notice this defendant Charles A. Pierce called upon this defendant H. F. Demmer, who was then and there sheriff of Kane county, Ill., to assist him, the said defendant Charles A. Pierce, to take possession of the said 23 cows, and the defendant Charles A. Pierce, as such veterinarian, assisted by the said H. F. Demmer, as such sheriff, took possession of the 23 cows, for the purpose that the said defendant Charles A. Pierce, as such veterinarian, might test them with tuberculin, and this defendant Charles A. Pierce, as such veterinarian, then and there proceeded immediately to test the said twenty-three cows with tuberculin, in accordance with the said rule 5 of the said rules and regulations of the said state board of live stock commissioners, hereinbefore set forth, which is the same taking and detention in the said declaration above supposed, and none other.’

RICKS, J. (after stating the facts).

The only question presented for determination in this case is, did the plea of appellants set up sufficient facts to give legal justification for their acts in the premises? If so, the demurrer filed by appellee should have been overruled; otherwise, it was properly sustained. Legislation having for its object the limitation and stamping out, as far as human precautions can, infectious diseases of man or beast, is of vital importance, not only because of the salutary results sought to be gained thereby, but also because the means to be employed must generally involve an infringement of personal liberty or interference with private property; and, when such is the case, the provisions of the law under which it is claimed such rights of interference are conferred demand a most careful consideration. ‘Where such right is claimed, it must appear very clearly and satisfactorily, not only that it has been conferred by law, but also that in its exercise the facts were present which justified it. The validity of the law is not so much in question as the right to enforce its provisions. Certainly no power should be implied...