State v. Hall

• Decision Date: 06 January 1920
• Docket Number: 985
• Parties: STATE v. HALL
• Court: Wyoming Supreme Court

194 P. 476

27 Wyo. 224

STATE v. HALL

No. 985

Supreme Court of Wyoming

January 6, 1920

EXCEPTIONS from District Court, Natrona County, CHARLES E WINTER, Judge.

T. A Hall was informed against for violation of statutes as to dipping of sheep. Demurrer to the information was sustained and defendant discharged. The prosecuting attorney brings the case to the Supreme Court on exceptions to rulings in the case. Questions answered.

W. L Walls, Attorney General, for the Exceptions.

The prosecution was brought under Section 2691, C. S. 1910 as amended by Section 3, Chapter 107, Laws 1915, and Chapter 80, Laws 1917, relating to the dipping of sheep for the suppression or prevention of contagious or infectious diseases. The defendant demurred to the information generally, and also enumerated specific grounds challenging the constitutionality of the statute; the demurrer was sustained and defendant discharged, whereupon the prosecutor brought the case here on exceptions to rulings of the trial court. A reading of the statute shows that the information followed its provisions, and is not an offense under the laws of the state. Penal statutes while strictly construed, should receive a common sense construction. (Sutherland St. Con. Vol. 11, 980). It is contended that the statute violates Art. 1, Section 6 of the constitution as to due process of law. The provisions of the statute are within the police power of the state. (Hamp v. State, 19 Wyo. 377). The constitution expressly provides for laws protecting live stock, Sec. 1, Art. XIX. The statute is in the nature of a police power to protect all sheep and to prevent disease, and as such is not repugnant to the quoted provision of the constitution. (6 R. C. L. 226). The legislature is the judge acting within the constitution as to the exercise of police power, (6 R. C. L. 230.) Police regulations are valid even though they interfere with property rights. (6 R. C. L. 192). The statute does not delegate judicial power, but is an administrative police regulation. The fourteenth amendment to the constitution recognizes the proper exercise of the police power of the state. The amendments made to the original statute are within the original title and do not violate Art. I, Sec. 24 which provided for the appointment of a board of sheep commissioners, their compensation, powers and duties. The titles to the amendatory acts are in the same language and the several amendments themselves related to the subject of the original title, and might have been properly included in the original act since the constitutional requirement as to title is satisfied, (Lewis' Sutherland St. Con. Vol. 1, 231). As the act of 1917 does not extend the scope of the original act beyond the purview of the title, and the same can be said of the prior amendatory act. The prescribed penalty is not oppressive. The annual dipping requirement is not unreasonable. The statute is clearly within the mandate of Art XIX, Sec. 1, of the constitution, directing legislation for the protection of live stock against infectious and contagious disease.

Hagens, Stanley and Murane, for Defendant in Error.

Defendant below first moved to quash the information, which motion was overruled; defendant thereupon demurred upon seven specific grounds, which demurrer was sustained. The statute does not require the owners to dip sheep, hence, he cannot make the required affidavit nor avoid the penalty; it is arbitrary in its provisions. (Richter v. State, 16 Wyo. 443; Bishop St. Crs. 220). Construction cannot supply provisions necessary to give the statute validity. The statute makes the inspector judge, jury and executioner and unless he can verify the acts of inspector or procure supervision of inspector in the dipping, he is subject to a fine of $ 2,000 or incarceration in jail; the appropriation of a man's property without notice is a violation of constitutional right. (Stirrett v. Young, 82 P. 946; Cooley's Con. Lim. 6th Ed. 431 C. B. & Q. Railroad Co. v. Chicago, 166 U.S. 236; Yick Wo. v. Hopkins, 118 U.S. 30 Ed. 225). The fourth and sixth grounds of demurrer may be considered together and in this connection we cite Gillespie v. People, 58 N.E. 1009. Judicial powers are vested in the board of sheep commissioners with authority to impose a lien upon private property for the cost of dipping and sale. (Western Union Tel. Co. v. Myatt, 98 F. 347). There is no occasion for invoking police power against a business that is not a nuisance and not dangerous to health, morals or the property rights of others. (Gillespie v. People, supra; Town of Greensboro v. Ehrenreich, 2 So. 725; Health Dept. v. Rector, 39 N.E. 835). Any person is at liberty to pursue any lawful calling in his own way that does not infringe the rights of others. (Dennis v. Moses, 52 P. 333; Ex Parte Whitewell, 98 Cal. 73; 32 P. 870; State v. Schlenker, 84 N.W. 698). The original act may be justified as a proper exercise of police power that had dealt with scabby or infected sheep; the amendment deals with clean sheep and requires all sheep to be dipped. A single dipping is not a preventative of disease. This is a matter of scientific knowledge, of which the court will take judicial notice. A statute requiring healthy sheep to be dipped twice annually was condemned by the Oregon court; (Adams v. Lytle, 154 F. 876). The information does not allege that defendant kept sheep in Natrona County which he failed to dip, and does not charge an offense in Natrona County; (Commonwealth v. Ill. Cent. R. R. Co., 90 S.W. 273). The statute is invalid as an enlargement of the scope of the original act; this is disclosed by an examination of the successful amendments upon which it is based. (Cooley Con. 6th Ed. 170; B. & N. R. R. Company v. Commissioners, 4 N.W. 240; Eaton v. Walker, 43 N.W. 638; Webster v. Powell, 18 So. 441; Kedzie v. Ewington, 55 N.W. 864; People v. DeBlaay, 100 N.W. 598; Armstrong v. Mayer, 83 N.W. 401; Union Pacific Railroad Company v. Sprague, 95 N.W. 46; Preston v. Stover, 97 N.W. 812; State ex rel Graham v. Tibbets, 71 N.W. 990; Commissioners v. Stone, 7 Wyo. 280).

POTTER, Chief Justice. TIDBALL, District Judge, concurs. Mr. Justice Blydenburgh being unable to sit when the cause was heard, Hon. V. J. Tidball, Judge was called in to sit in his place. The death of the late Chief Justice Beard sat in the case, occurred before the completion of the opinion, but he had concurred in the several conclusions.

OPINION

POTTER, Chief Justice.

This is a criminal case and is here upon a bill of exceptions filed by the prosecuting attorney, with the permission of the court, under the provisions of sections 6242-6245 Compiled Statutes, 1910. The questions presented by the bill for the decision of this court arose in the district court upon a demurrer to the information, which was sustained and resulted in the discharge of the defendant. The principal question raised by the demurrer and presented here is the constitutionality of the statute upon which the prosecution was based, but the sufficiency of the information is challenged also upon other grounds.

The cause was prosecuted in Natrona county, and the information filed in the district court for that county contains two counts charging or intended to charge violations of certain provisions in the statute relating to the prevention and suppression of scab or scabies and other contagious and infections diseases among sheep. The particular provisions forming the basis for the prosecution and involved in the questions here presented are found in section 1 of chapter 80, Laws of 1917, amending and re-enacting section 3 of chapter 107, Laws of 1915, which amended and re-enacted section 2691, Compiled Statutes 1910, and read as follows:

"All sheep which are kept or herded within the limits of the State of Wyoming, shall, between the fifteenth day of April and the first day of November of each year, be dipped under the supervision of an authorized sheep inspector in one of the dips which have been recommended by the State Board of Sheep Commissioners, said dip to be used at a strength sufficient to eradicate scabies. The owner or controller of said sheep so dipped, shall, within twenty days after the completion of such dipping file with the authorized sheep inspector or the State Board of Sheep Commissioners the affidavit of two persons who were present and assisted in said dipping, which affidavit shall state the number of sheep or bucks dipped, kind of dip used, and the manner, time and place of such dipping. The per diem and expenses of the inspector to be paid by the owner or controller of the sheep so dipped. * * * Any person who is the owner or controller of any sheep within the State of Wyoming violating the provisions of this section, shall be guilty of a misdemeanor and shall be subject to a fine of not more than two thousand dollars ($ 2000.00)."

It is also provided by the section immediately following the above quoted provision for the payment of the inspector's per diem and expenses and immediately preceding the penal provision, as follows:

"The State Board of Sheep Commissioners is hereby authorized and empowered to take charge of and dip as soon as possible after the first day of November of each year, all sheep kept or herded within the limits of the State of Wyoming, not previously dipped within the period required by this section, and all the expenses for so doing, including the per diem and expenses of an authorized sheep inspector, shall be paid by the owner of said sheep and the same shall become and be a lien upon such sheep until paid and shall be collected within the time and in the manner heretofore provided in this section for the collection of the expenses and per diem of such inspector incurred in the dipping...