Ruona v. City of Billings, 9673

• Decision Date: 05 May 1958
• Docket Number: No. 9673,9673
• Citation: 136 Mont. 554,323 P.2d 29
• Parties: Maire M. RUONA, Plaintiff and Appellant, v. CITY OF BILLINGS, a Municipal Corporation, et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 29

323 P.2d 29

136 Mont. 554

Maire M. RUONA, Plaintiff and Appellant, v. CITY OF BILLINGS, a Municipal Corporation, et al Defendants and Respondents.

No. 9673.

Supreme Court of Montana.

Submitted Jan. 21, 1958.

Decided March 14, 1958.

Rehearing Denied May 5, 1958.

Arthur R. Meyer, Billings, for appellant.

James F. Battin, City Atty., Richard J. Carstensen, Asst. City Attorney, Billings, Richard J. Carstensen, argued orally, for respondent.

VICTOR H. FALL, District Judge.

This action was commenced by appellant owner against the City of Billings, the chief of police, the mayor and the two policemen for damages in the sum of $1,000 for the destruction of her dog, Kimi.

The stipulated facts in this appeal reflect the following:

On or about January 27, 1951, a stray dog in the City of Billings attacked and bit a person, and it was determined upon proper examination that the dog was suffering from rabies, a violent, dangerous and infectious disease, and it was presumably destroyed. The Montana Livestock Sanitary Board immediately conferred with the local health and law enforcement officers of Yellowstone County and the City of Billings regarding steps to be taken to cope with the situation. An emergency quarantine of all dogs and cats located within the general area known as the College Subdivision was ordered, requiring that all such animals be kept confined and that all stray dogs and cats be 'shot and killed'. On March 5, 1951, a second rabid dog bit a child in Billings. The dog was destroyed. Realizing the full seriousness of the situation, on March 16, 1951, the Montana Livestock Sanitary Board ordered an emergency quarantine for all of Yellowstone County, Montana, and ordered that all dogs and cats be vaccinated for rabies and that they be restrained by means of chains or kept within escape-proof pens, and for the destruction of all dogs and cats running at large.

During the months of March and April 1951, 'several' dogs were found to be infected with rabies. On the morning of March 25, 1951, the dog of appellant, together with a canine companion, was reported to the Billings police to be roaming at large. It is stipulated that these two dogs 'chased a small, four-year old child on the street, who escaped on a neighborhood porch'. The two police officers, Staton and Glasrud, respondents herein, were in a patrol car, and pursuant to radio call, located the two dogs. They attempted to capture them by whistling and calling. Failing in their efforts, they shot and killed appellant's dog, Kimi. The companion dog escaped.

Appellant assigns as error the overruling of her demurrer to the first affirmative defense and the granting of the motion for judgment on the pleadings in favor of respondents.

Appellant argues that she has been deprived of property without due process of law and cites our statute section 19-103, R.C.M.1947, and the appropriate constitutional provision, Art. III, Sec. 27, Mont.Const., in support thereof.

It should be pointed out that our Constitution also provides that, '* * * the police powers of the state shall never be abridged, or so construed * * * as to infringe * * * the general well being of the state.' Art. XV, Sec. 9, Mont.Const. It is so well-settled as to hardly need citation of authority that under the guise of police power the state and the municipal subdivisions thereof have not only the power, but the duty to do all things necessary to fully protect the public in matters of the preservation, among other things, of the health and well-being of the community. For example, we find the following statement in 11 Am.Jur., Constitutional Law, Sec. 245, pp. 966, 969, 970:

'The breadth and extent of the police power, covering the exigencies confronting the community, its adaptability, durability, inalienability, and the number of public purposes included in its scope make it a principal pillar of government. It has been stated that the police power in effect sums up the whole power of government, and that all other powers are only incidental and ancillary to the execution of the police power; it is that full final power involved in the administration of law as the means to the attainment of practical justice. Moreover, it has been said that the very existence of government depends on it, as well as the security of the social order, the life and health of the citizen, the enjoyment of private and social life, and the beneficial use of property.'

'Salus Populi and the Law of Necessity:--Another principle involved in the police power is expressed by the well-known maxim, 'salus populi est suprema lex.' [The welfare of the people is the supreme law.] It has been said that this maxim is the foundation principle of all civil government and that for ages it has been a ruling principle of jurisprudence.' 11 id. Sec. 251, p. 977.

'Thus, in a great many decisions it has been said that the police power extends to protection of the public health, safety, and morals; to the securing of the public peace, good order, health, safety, morals, and general welfare; to the protection of the lives, limbs, health, comfort, and quiet of all persons and the protection of all property within the state, including public property; to the promotion of the comfort and welfare of society; and, in addition, to the enhancement of the public convenience and the general prosperity.' 11 id. Sec. 270, pp. 1015-16-17-18.

Under police power the state can provide for the destruction of diseased animals. 11 id. Sec. 271; See annotation 8 A.L.R. 69. This power has been upheld whether provision has been made for compensation to the owner or not. See 2 Am.Jur., Animals, Sec. 160, p. 810. As stated in the text just cited, at p. 811, 'Proceedings for the destruction of property in many cases must necessarily be summary and without a previous trial or hearing in such cases, and such proceedings are due process.' Citing cases in note 3.

Under the general provisions of section 69-121, R.C.M.1947, the State Board of Health has the power and the duty to establish and enforce quarantine measures when necessary. It is the duty of, among others, police officers to enforce such measures. Section 69-608. It is further provided by section 46-243, that no officer, agent or employee of the Board shall be liable for their acts thereunder except in case of 'wilful wrong or gross negligence'.

In addition to the foregoing, the following quotation from Viemeister v. White, 179 N.Y. 235, 238, 72 N.E. 97, 70 L.R.A. 796, found in Chalfin v. American Soc., etc., 184 Misc. 15, 53 N.Y.S.2d 174, 178, seems particularly appropriate wherein it is said:

"When the sole object and general tendency of legislation is...