Richter v. State

• Decision Date: 21 April 1908
• Citation: 95 P. 51,16 Wyo. 437
• Parties: RICHTER v. STATE
• Court: Wyoming Supreme Court

95 P. 51

16 Wyo. 437

RICHTER v. STATE

Supreme Court of Wyoming

April 21, 1908

ERROR to District Court, Big Horn County, HON. CARROLL H. PARMELEE Judge.

Paul Richter, having been found guilty of removing certain sheep belonging to him from quarantine limits established for them by a sheep inspector, prosecuted error. The material facts are stated in the opinion.

Reversed.

Ridgely & West, for plaintiff in error.

The statute must be strictly complied with to establish a legal quarantine. If there was no legal quarantine the verdict and judgment is contrary to law. To show a legal quarantine the evidence should be competent; hearsay evidence is improper. (15 Ency. L. 309, 310.) A mere suspicion of infection does not authorize a quarantine. Whether the sheep had been exposed to disease or not was properly a question for the jury, and the instruction that the inspector is the sole judge as to whether or not there had been an exposure was erroneous. It invaded the constitutional right of trial by jury, and substituted for the verdict of the jury the opinion of the inspector, who admitted that he acted upon information received from outside parties. The quarantine officer must act upon competent evidence. His acts are not conclusive. (U. S. v. Wittberger, 5 Wheat. 76; U. S. v Harris, 177 U.S. 305; Hardwick v. Brookover, 30 P. 21; Asbell v. Edwards, 66 P. 641; In re Smith, 48 Am. St. 769; Pearson v. Zehr, 32 id 113; People v. Board, 37 id 522.)

W. E. Mullen, Attorney General, for the State.

When the sheep inspector acts, either upon his own motion, pursuant to the rules promulgated by the board of sheep commissioners, or upon the written request of a sheep owner and tax payer as provided under the provisions of Sec. 2027, he may, under the provisions of Sec. 2027 and 2022, R. S., and in the exercise of a sound discretion, do any one of the following things. 1. Release the sheep if he finds them free from infection, contagion, or exposure of any kind. 2. Quarantine the sheep and order them treated as soon as possible if found to be infected. 3. If not infected, but found to have been exposed, quarantine them for a period until symptoms of disease develop or until released by order. In the case at bar, the inspector acted well within the statute and rules, as shown by the evidence, in establishing a quarantine for this band of sheep, without ordering the owner thereof to dip or treat them.

The contention that a quarantine may be established only where the facts as to infection or exposure are shown according to the rules of evidence governing judicial proceedings is untenable. No such rule has ever been held to apply to health officers in the discharge of their duties. (State v. Rasmussen, (Idaho) 59 P. 936; Kopalla v. State, (Wyo.) 89 P. 579.) Whether a quarantine had been in fact established by the inspector, and whether or not it had been violated by the defendant were material questions for the jury to decide. But whether the inspector exercised good or bad judgment in the establishment of the quarantine was not a question for the defendant to decide in the first instance, or for the jury on the trial.

Instruction No. 7 informed the jury that they were not the judges as to whether the sheep had been exposed, but that the inspector was the sole judge. Unless our quarantine laws are to be placed in the hands of juries before action can be taken, this instruction was undoubtedly a correct statement of the law. It is a well established principle that the acts of an administrative officer, clothed with discretionary powers and acting within the scope of his authority, cannot be questioned by the courts, unless negligence, fraud, or an abuse of power is alleged and proven. (Mechem Pub. Off., Secs. 611, 613, 614; Hannon v. Agnew, 96 N.Y. 439; Appel v. State, 9 Wyo. 202.)

SCOTT, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

SCOTT, JUSTICE.

The plaintiff in error was convicted of a misdemeanor and brings error.

It appears from the record that Richter was and had been for many months prior to June 28, 1906, the owner of a band of sheep which was kept and grazed upon the open range in Big Horn County. On said date a sheep inspector inspected the sheep and found that they were not infected with any disease, but acting on information to the effect that the sheep had been exposed to "scab" placed them in quarantine within certain limits fixed by him. The herder who was in charge of the sheep was duly notified and such notice was communicated to Richter who disregarded the notice and without permission of any inspector removed the sheep from the quarantine limits and herded them back upon the open range.

The court over the objection of the defendant gave to the jury instructions 1, 5, and 7, respectively as follows:

"1. You are instructed that under the law of this state whoever being the owner of sheep removes the same beyond the quarantine limits that may have been prescribed by any lawful inspector, is guilty of a misdemeanor."

"5. You are instructed that under the law of this state an inspector, either Federal or State, has authority to inspect and quarantine sheep affected with infectious or contagious diseases, or suspected of being so infected, or that have been exposed to any such disease."

"7. You are instructed that the jury are not the judges of the question as to whether or not the sheep in controversy had been exposed, but that the inspector is the sole judge of whether or not there has been an exposure."

It is urged that these instructions did not correctly present the law of the case to the jury and that the defendant was thereby prejudiced. The determination of this question involves a discussion of what powers are conferred upon a sheep inspector.

The Board of Sheep Commissioners consists of three members appointed by the Governor (Sec. 2074, R. S. 1899) who after qualifying choose their president from its members, and who are authorized to appoint a secretary. (Sec. 2076 id.) The board is authorized (Sec. 2077, R. S. 1899 as amended Chap. 98, S. L. 1905) to divide the state into districts for inspection and appoint such inspectors as it may deem necessary in the manner as the board may provide by its rules and regulations; and to do and cause to be done all things practicable to protect the sheep of the state from disease, "and it shall prepare and promulgate such rules and regulations as it may deem necessary for the quarantining and dipping of sheep infected with scab, or any other infectious or contagious disease, or that have in any manner been exposed to any such disease and for the speedy and effective supervision among sheep as are not in conflict with the provisions of this chapter and also of Chapter 7 of the Revised Statutes of Wyoming 1899." Sec. 2087 as amended and re-enacted Chap. 98, S. L. 1905 is as follows: "Any inspector, either Federal or State, shall have authority to inspect and quarantine and treat sheep affected with contagious or infectious disease, or suspected of being so affected, or that have been so exposed to any such disease, and such sheep inspector may be called upon, in writing, at any time, by one or more sheep growers owning sheep and paying taxes in such county, to inspect any band of sheep in his county. Upon such request being received by such inspector, he shall forthwith proceed to inspect the sheep mentioned in such request. If he shall find them free from scab or other infectious or contagious disease, the expense of such inspection shall be paid by the party making such request. If he shall find upon such inspection that any of such sheep are infected with scab or any other infectious or contagious disease, or have been exposed in any manner to any such disease, the expense of inspection shall be paid by the owner of such sheep, and such inspector shall take the steps in relation to said sheep provided in the next succeeding section of this chapter." The next section, being Section 2088 of the R. S. as amended and reenacted, provides in part that: "Whenever, upon examination by such inspector any flock of sheep kept or herded in the State of Wyoming shall be found infected with scab or any other infectious or contagious disease or that have been exposed in any manner to any such disease, such inspector shall forthwith notify the owner or person in charge of such sheep in writing" and in such case may require that such sheep be kept within certain limits, to be by him fixed and specified, and that other sheep owners shall not enter upon such quarantined ground with their flocks of sheep until further notice or their sheep will also be quarantined. It is also provided that the owner or owners, person or persons in control of sheep so quarantined who shall fail to keep them within the quarantine limits until properly released shall be guilty of a misdemeanor.

It will be observed that the inspector's authority to quarantine sheep is expressly conferred by statute, and in the matter of quarantining sheep because infected with or because they have been exposed to infectious diseases he is the agent of the state. A conferred power of this nature is not inhibited by the constitution because it is the method and practically the only method by which the state can enforce its police regulations. The law is essentially of that nature and the protection sought and the object to be attained must be by a summary method and the state must act and act quickly through its agents who are clothed with certain powers in the performance of the duty. The power can not be used arbitrarily nor oppressively but only in such case and in the manner prescribed by the statute, which being penal in its nature must be strictly construed. We doubt if the legislature has the...