State v. Lawson

• Decision Date: 03 November 1947
• Docket Number: No. 4-8289.,4-8289.
• Citation: 205 S.W.2d 204
• Parties: STATE ex rel. HALE, Pros. Atty., v. LAWSON et al.
• Court: Arkansas Supreme Court

Page 204

205 S.W.2d 204

STATE ex rel. HALE, Pros. Atty., v. LAWSON et al.

No. 4-8289.

Supreme Court of Arkansas.

November 3, 1947.

Appeal from Chancery Court, Western District, Craighead County; Marcus Evrard, Special Chancellor.

Suit by the State, on the relation of James C. Hale, prosecuting attorney of the second judicial district, against H. M. Lawson and others to enforce compliance with a regulation of the State Board of Health, requiring inspection of cattle for Bang's disease, and enjoining defendants from selling their milk products until tests required by such regulations have been made. From a decree, directing defendants to submit their cows to proper inspection and prohibiting them from selling milk and milk products until they complied with the Board's regulations, defendants appeal.

Reversed and remanded with directions.

Marcus Fietz and Herbert H. McAdams, both of Jonesboro, for appellants.

Barrett & Wheatley and Berl S. Smith, all of Jonesboro, for appellee.

FRANK G. SMITH, Justice.

This suit was filed by the State ex rel. the Prosecuting Attorney of the second judicial circuit of which Craighead County is a part, against certain dairymen operating dairies in that county to enforce compliance with a certain regulation of the State Board of Health requiring inspection of cattle to ascertain whether they were free from, or infected with, a disease popularly known as Bang's disease. It was alleged that the dairymen persistently refused to comply with the inspection regulations and it was prayed that they be enjoined and restrained from selling and distributing their milk products until the tests required by the regulations of the Board of Health had been complied with.

In answer to a motion that a bill of particulars be filed the following response was filed:

"Comes the plaintiff herein, for his response to the defendant's motion for Bill of particulars herein states:

"First: That the rules and regulations made inquiry of by the defendant and under which the plaintiff is basing his allegation on as set out in his complaint is found in Division A of Section 2 (Dairies) of Chapter 10 as found in rules and regulations of the State Board of Health of Arkansas, issued for the year of 1940. Said Section may be found on page 67 of said rules and regulations.

"Second: The term reactor as used in the plaintiff's petition is meant that the animal or cow which shows positive from test made by a veterinarian accredited by the U. S. Bureau of Animal Industry and approved by the State Livestock Sanitary Board, for Bang's disease. Such reactors should be removed from the herd, which in reality means that the milk produced from such animals (reactors) will not be made available to the public either by sale or otherwise. It is not the purpose of this petition to determine the final disposition of such cattle when removed from the herd.

"Third: The plaintiff denies, that any representative of the State Health Department stated that such animals declared as reactors would be slaughtered within fifteen (15) days."

A voluminous answer was filed. It was denied by the defendant dairymen that the milk that they were selling was a great danger or any danger to the public, and they denied that they are selling milk in violation of any valid law of the state.

It was answered that it was required that the cattle be inspected under regulations which require the slaughter of all cattle reacting to the blood agglutination test, within fifteen days, and further that reactors are required to be branded in a manner which destroys from fifty to sixty percent of their value.

It was further answered that the tests required by the regulations with which they have not complied are so inaccurate for diagnostic purpose that the requirement for slaughter based upon such tests deprives the defendants of their property without due process of law. That a vaccine has been developed which is proving satisfactory in the elimination of Bang's disease, and that the Bureau of Animal Industry of the United States Dept. of Agriculture now recommends three different methods of control as follows: (1) Test and slaughter, (2) Test and slaughter with calfhood vaccination, and (3) Test and retention of reactors with calfhood vaccination.

It was further answered that competent research indicates that in most animals Bang's disease is curable, either by the animal developing a natural immunity or by an immunity created by vaccine; that undulent fever is not a serious health problem and that the chances of contracting it from the use of raw milk are highly improbable.

It was further answered that pursuant to Paragraph (15) of Sec. 2 of Act 114 of 1941, the City of Jonesboro (in which city only the defendants sell their milk) has in force a standard milk ordinance approved by the Board of Health, which is being enforced by and through the Milk Inspector and City Health Officer, and that the exclusive right of control and enforcement is vested in the city authorities, hence petitioner is without right to maintain this suit; that the existence of any disease in humans traceable to the milk supply of the City of Jonesboro is so rare as to be unrecognizable and the public health is adequately safeguarded by the activities of the city authorities. The paragraph of Sec. 2 referred to reads as follows:

"Provided, that nothing in this Act shall be construed to deprive any city of the First or Second Class of any of its police powers now or hereafter granted. Nothing in this Section or in any other Section of this Act shall be construed as authorizing or directing in any fashion the State Board of Health to assume, to take over, or to discharge exclusively any of the functions and duties (or responsibilities) now, or hereafter customarily performed by Cities of the First or Second Class, operating under and enforcing an ordinance approved by the State Health Department dealing with Dairy or other Sanitary Milk Inspection Work or the bacteriological sampling of milk.

"And, provided further that the duties discharged under the terms of this Act shall be discharged in so far as is practicable and reasonable in cooperation with the municipal authorities wherever such authorities exist."

It was further answered that criminal informations have been filed, charging the defendants with violation of rules and regulations of the State Health Department, and that by this action the State seeks to enjoin what it claims to be a criminal act, and for this reason the court is without jurisdiction to grant relief by injunction.

It was further answered that: "Throughout the United States the vaccination method of control has, and now is meeting the increased approval of state and federal authorities and does not impose upon the herd owners the economic loss incident to the requirement for slaughter of animals that are in fact infected with Bang's disease. These defendants are ready and willing to enter into such a method of control as is suggested by No. 3 hereinabove pleaded (that is, test and retention of reactors with calfhood vaccination) with the view to gradual elimination of Bang's disease, without the great economic loss involved by the slaughter of reactors. These defendants state that if Bang's disease is prevalent to anything like the extent suggested by, and contended for by representatives of...