Salzenstein v. Mavis

• Decision Date: 31 January 1879
• Citation: Salzenstein v. Mavis, 91 Ill. 391, 1879 WL 8416 (Ill. 1879)
• Parties: EMANUEL SALZENSTEIN et al.v.WILLIAM MAVIS.
• Court: Illinois Supreme Court

91 Ill. 391

1879 WL 8416 (Ill.)

EMANUEL SALZENSTEIN et al.

v.WILLIAM MAVIS.

Supreme Court of Illinois.

January Term, 1879.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Sangamon county; the Hon. CHARLES S. ZANE, Judge, presiding.

Mr. L. F. HAMILTON, for the plaintiffs in error:

The grounds of complaint, as alleged in the plaintiff's declaration, are, first, that the defendants unlawfully and wrongfully brought Texas and Cherokee cattle into Sangamon county; second, that they unlawfully owned them in said county, and third, that they unlawfully and wrongfully had them in possession in said county, from which said cattle the native cattle of the plaintiff contracted a disease.It is nowhere alleged how such bringing into the county, ownership or possession became unlawful and wrongful.It is not stated that defendants' cattle were in fact diseased, nor is it stated that defendants knew that their cattle were diseased at the time the plaintiff's contracted such disease.The declaration does not allege that the defendants were guilty of any fault or negligence whereby such disease was communicated, or that the disease was contagious or infectious.

In the absence of a statute, it is not in itself an act of culpable negligence to keep animals having an infectious disease.The owner can not be held responsible for the communication of the disease to other animals, without proof of some fault on his part, other than the mere keeping of such animals on his premises; nor does the fact that his neighbor keeps, to his knowledge, healthy animals upon an adjoining lot, alter the case.Shearman & Redfield on Negligence, sec. 193;Fisher v. Clark,41 Barb. 329.

If the declaration shows no cause of action at common law, was there any valid statute giving a right of action?The declaration is apparently framed under “An act to amend an act entitled ‘an act to prevent the importation of Texas and Cherokee cattle into the State of Illinois.’ ”If this statute is in conflict with the constitution of the United States, the declaration shows no cause of action.That it is, seeRailway Co. v. Husen,5 Otto, 465.

It may be insisted that the part of the statute which renders the owners and possessors of such cattle in this State liable for all loss occasioned by such ownership or possession, is not in conflict with the Federal constitution.

The right to bring into the State this class of property can not be exercised, if the person owning or possessing it in the State is liable for such ownership or possession, since the right to bring into the State includes the right to possession and ownership in the State.

If the legislature may single out one particular article of commerce and make its simple ownership or possession by any person in the State the sole basis of liability for all loss suffered by reason of such ownership or possession, all interState commerce in this class of property is not only regulated by the legislature, but absolutely prohibited.

Messrs. MCCLERNAND & KEYES, for the defendant in error:

The main question presented is the validity or constitutionality of the statute cited (Rev. Stat. 1874, p. 134,) as forming the foundation of the action in the court below.The plaintiffs in error assume the negative, and cite, as supporting their position, The Hannibal and St. Joseph R. R. Co. v. Husen,5 Otto, 465.We deny the soundness of this position,--1, upon matters of fact, 2, upon principle, and 3, upon authority.

1.THE FACTS.--The second and third counts proceed upon the fact that the defendantsowned or had in possession in this State a number of cattle, the ownership or possession whereof in the State was prohibited by statute, and that by reason thereof the same cattle spread a disease, whereof the native cattle of the plaintiff became diseased and died.The difference between the present case and the Missouri case, reduced to its lowest terms, amounts to this,--the former dealt with persons and their acts, being or transpiring within the territorial jurisdiction of the State, and with a statute regulating the internal police of the same, as to both persons and their acts therein, while the other dealt with persons and their acts, the situs of which was external to the territorial jurisdiction of the State, and with a statute affecting an extraterritorial operation.

“All those powers which relate merely to municipal legislation, or which may more properly be called internal police, are not surrendered or restrained; and consequently, in relation to these the authority of the State is complete, unqualified and exclusive.”Potter's Dwarris' Stat. and Const.L. 461;Mayor, etc. v. Miln,11 Pet. 102.

The same power has often been exercised to discriminate betweeen animals and classes of animals, as, stallions and bulls of particular breeds, permitting some and prohibiting others.

2.PRINCIPLE-- police power.The police power is a part of the law of public necessity, and, abstractly, it is limited only by that law.It is inherent and perpetual in society, and as to the social state stands as the corollary of the natural and inalienable right of personal self-defence.It is also a common law right.When not impaired by organic restraints it may be exercised in its fullest plenitude and vigor.It is commensurate with the sovereignty of the State, and is of necessity despotic, and individual rights of property, beyond express constitutional restraints, must yield to its force.Under it every one having property holds it under the implied liability that its use shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community.Potter's Dwarris, 444;2 Kent'sCom. 338;Russell v. Mayor of N. Y.2 Denio, 461-474;Mayor of N. Y. v. Lord,17 Wend. 285;Stone v. Mayor of N. Y.25 Wend. 157;Van Wormer v. Mayor of Albany,15 Wend. 264;Puffendorff, B. 2, ch. 6;Commonwealth v. Alger,7 Cush. 53-85;The Saltpetre Case, 12 Coke, 13;Wynhamer v. The People,13 N. Y. 402, Id. 451;4 Blackstone'sCom. 162;Stuyvesant v. Mayor of N. Y.7 Cow. 604;Hart v. Mayor of Albany,9 Wend. 593;Thorp v. R. & B. R. R. Co.27 Vt. 149;Hyeman v. West,16 Barb. 353, S. C.13 N. Y. 1;Mayor, etc. v. Miln,11 Peters, 102.

3.OBJECTS OF ITS EXERCISE.--Generally these objects are to conserve the comfort, safety and welfare of society; particularly, they are to protect the lives, limbs, health and quiet of persons in the State, and all property therein; to prevent the spreading of conflagrations, even by razing houses to the ground; to abate nuisances; to repair highways; to purge public markets of infectious articles; to cast into the sea merchandize on shipboard infested with pestilence; to prohibit the storage of powder within cities and near to habitations and public highways; to restrain and regulate the erection of wooden buildings within cities and populous towns; to prohibit buildings from being used as hospitals for contagious diseases and the carrying on of noxious or offensive trades; the erection or raising of dams, which may cause stagnant water to stand or spread over lands near inhabited towns, villages or cities, thereby causing unwholesome exhalations dangerous to health and to life; to prohibit railroads from carrying freight, the legislature having first declared the same to be prejudicial to the public interest.

4.POLICE POWER-- distinction.--This power antedates commerce, and its exercise forms a necessary condition, not only to the development, but the creation of commerce, and is therefore a higher and superior power.Both may be exercised, but when they come in conflict upon a vital point, upon principle the latter must yield.It has been held that State laws establishing quarantine and health laws of every description, carried even to the extent of destroying private property, when infected with disease, or otherwise dangerous, fall within the proper bounds of State police.In this connection the following authorities are cited: Potter's Dwarris, 458;Cooley Const.Lim. 577, 584, 586;Vanderbilt v. Adams,7 Cow. 348;Mayor, etc. v. Miln,11 Pet. 102;Gibbons v. Ogden,9 Wheat. 203;Stillwell v. Raynor, 1 Daley, 47;12 How. U. S. R. 299;Cisco v. Roberts,36 N. Y. 292;Gilmore v. Philadelphia,3 Wall. 730;Houston v. Moore,5 Wheat. 49;Benedict v. Vanderbilt,25 How. Pr. R. 209.

5.POLICE POWER-- who to judge of its necessity.--The Statelegislature are the sole judges as to the expediency of making police regulations interfering with the rights of persons and property, when such regulations are not prohibited by the constitution.Varick v. Smith,5 Paige, 160.

Every sovereign State possesses, within itself, absolute and unlimited power, except so far as it is prohibited by the fundamental law.There is no arbiter of the measures necessary to protect life and property beyond the State itself.Such measures taken by the State must be held to be just and right, and from them, as an emanation of the ultimate power of the State, there can be no appeal.Potter's Dwarris, 455.

“The facts and condition of things which render a law necessary for the public welfare, are generally to be determined by the legislature.”

All Texas or Cherokee cattle freshly brought from that State or the Indian country into this State, within the time prohibited, possess a capacity of imparting a deadly disease to native cattle.That being true, the legislature is a constitutionally competent judge of the occasion for such a prohibition and its limitations.There was competent power to impose some restraint, nor was the legislature bound to adjust nicely the character of the restraint.The power carries with it all reasonable means to effectuate it.It is not the province of the courts to supervise the exercise of this power, it being presumed that the legislature acted with wisdom and discretion.Yeazel v. Alexander,58 Ill. 254.6.The record does...