Rowland v. Morris
| Decision Date | 28 February 1922 |
| Docket Number | 2649. |
| Citation | 111 S.E. 389,152 Ga. 842 |
| Parties | ROWLAND v. MORRIS ET AL. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The act of the Legislature approved Aug. 17, 1918 (Ga. Laws 1918, p 256), which provides for state-wide tick eradication, is not unconstitutional because it violates the due process clause of the federal Constitution and a similar provision in the state Constitution, in that it does not give to the owners of cattle notice and an opportunity to be heard in opposition to their quarantine and dipping for such purpose; and said act is not unconstitutional (a) because it violates the Fifth Amendment to the federal Constitution, (b) because it violates article 1, § 1, par. 2, of the Constitution of this state, and (c) because it violates the fourth paragraph of said article and section.
The inspector and sheriff were authorized to quarantine and dip the cattle of the plaintiff without any warrant; and the fact that they were proceeding to do so under color of an affidavit made by the inspector and a warrant issued thereon by the judge of the superior court, when there was no authority for such procedure, does not render their action illegal and void.
The court did not err in refusing to grant an injunction, under the pleadings and facts in this case.
Additional Syllabus by Editorial Staff.
The due process clause of Const. U.S. amend. 14, and the similar provision of the state Constitution, are not designed to interfere with the police power of the state to prescribe regulations to protect the health, peace, morals, education general welfare, and good order of the people.
A very large discretion is vested in the Legislature to determine what the public interests require, and what measures under the police power are necessary to their protection.
When the particular thing or act sought to be abated is made a nuisance by statute, or characterized as such by the common law, or is such per se, and an officer is commanded by law to abate it, no notice or judicial determination is necessary as a prerequisite, and the officer or agent effecting the abatement is not liable.
Where statutes or valid municipal ordinances define the terms and conditions on which property may be destroyed as a nuisance or persons or property quarantined when infected by disease or exposed to contagious disease, the officers or agents of the state or municipality act at their peril.
Act Aug. 17, 1918 (Acts 1918, p. 256), providing for tick eradication, though not in express language declaring cattle not dipped to be public nuisances, in effect makes them such and is valid.
It is a matter of common knowledge of which the court takes judicial notice that the cattle of the state were formerly infested with cattle fever ticks, or exposed to tick infestation, that cattle in certain counties, including Johnson county, are still so infected or exposed, and that Texas fever, a communicable and dangerous cattle disease, is prevalent in all counties where tick eradication has not been completed, including the county of Johnson.
Quarantining infected cattle, and treating them for the eradication of disease, as is authorized by Act Aug. 17, 1918 (Acts 1918, p. 256), is not such a taking of property for public use as requires compensation to be made to the owner.
When property becomes a nuisance, the nuisance can be abated without compensation to the owner, and at his own expense.
Error from Superior Court, Johnson County; J. L. Kent, Judge.
Suit by J. R. Rowland against C. E. Morris and others. Judgment for defendants, and plaintiff brings error. Affirmed.
He further asserts that this act is unconstitutional because it violates the Fifth Amendment to the Constitution of the United States, and because it violates the provision of the state Constitution that private property shall not be taken for public use without just compensation. He further asserts that these officers are proceeding illegally to quarantine and dip his cattle, under an affidavit sworn to by said inspector before the judge of the superior court of said county, and under a warrant issued by the latter, and that there is no authority of law for the making of said affidavit and the issuing of said warrants. He further alleges that his cattle are not infected with ticks, and have not been exposed to tick infestation. He further alleges that his cattle are kept on his own premises, and not allowed to run at large. With one exception they are milk cows, kept for the use of himself and family, and by reason of the distance they would have to be taken to be dipped, and the manner prescribed for their dipping, there is great danger of damage to them, for which the defendants are not responsible. R. R. Martin and J. C. Williams deposed for the plaintiff that they had examined his cattle carefully and thoroughly, that they found them free from ticks, and, so far as they knew or could learn from others, the same have not been exposed to tick infestation.
Defendants in their answer denied the allegation in the petition that the plaintiff was never served with notice as required by the Tick Eradication Act. They denied all the attacks made upon the constitutionality of the act. C. E. Morris, in behalf of the defendants, deposed that he is a duly appointed and qualified cattle inspector of this state; that Johnson county is, by virtue of an order passed by the state veterinarian, put under quarantine; that he has found that a good portion of the cattle of said county are affected with cattle ticks; that splenetic fever from cattle ticks exists in said county at this time; that the cattle of the plaintiff, if not infected with cattle ticks, are exposed to infestation; that the plaintiff failed and refused to dip his cattle at such time and place as had been designated by the local cattle inspector; that his cattle would become infected with Texas fever, and all cattle in said county are exposed to this fever, and unless checked the same would become general among the cattle of the county, rendering the flesh and milk of cattle diseased and unfit for food, and thereby seriously affect the health of the community. The failure of the plaintiff to comply with the law would delay the completion of the tick eradication, thereby necessitating dipping for another year, which would put a great expense upon the county and taxpayers, and upon individuals who have complied with the dipping law. Notice has been given to the public by posting at the courthouse, along the county line, and upon public highways that said county was under quarantine. Turner Scarboro deposed for defendants that he had in his possession a cow of the plaintiff; that it had never been dipped, as required by the Tick Eradication Law; that he was instructed by plaintiff not to carry said cow to be dipped until instructed by him; that he has had possession of said cow since March 18, 1921, at which time said cow had ticks on her.
Plaintiff alleged in his petition that he had not been served with written notice requiring him to dip cattle 30 days before the defendants undertook to quarantine his cattle. This the defendants denied in their answer, and proved that such notice had been served.
The case was heard on the petition, answer, and affidavits. After hearing the evidence the court below denied an injunction, and the plaintiff assigns this ruling as error on all the grounds set out in his petition.
A. L. Hatcher, of Wrightsville, and J. S. Adams and R. Earl Camp, both of Dublin, for plaintiff in error.
C. S. Claxton, of Wrightsville, R. A. Denny, Atty. Gen., and Graham Wright, Asst. Atty. Gen., for defendants in error.
HINES, J. (after stating the facts as above).
1. On August 17, 1918, the Legislature passed the statute known as the State-Wide Tick Eradication Act. The plaintiff filed his petition to enjoin the county cattle inspector and sheriff of the county from putting his cattle in quarantine, and from dipping the same, under the provisions of this act, on the ground that the same was unconstitutional, because it did not provide for notice to the owners of such cattle, and did not give them an opportunity to be heard on the question whether their cattle were infested with ticks or had been exposed to tick infestation. The plaintiff insists that he was thus deprived of due process of law under the Fourteenth Amendment to the Constitution of the United States, and under the similar provision in our state Constitution.
The Fourteenth Amendment to the federal Constitution is not designed to interfere with the police...
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