Thede v. Thornburg, 39119.
| Decision Date | 05 February 1929 |
| Docket Number | No. 39119.,39119. |
| Citation | 223 N.W. 386,207 Iowa 639 |
| Parties | THEDE ET AL. v. THORNBURG, STATE SECRETARY OF AGRICULTURE, ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Cedar County; John T. Moffit, Judge.
Action to enjoin the defendants from putting into effect the provisions of chapter 129 of the Code of 1924, chapter 54 of the Acts of the Forty-First General Assembly. Plaintiffs' petition was dismissed. Reversed and remanded.Thompson & Thompson, of Muscatine, A. R. Whitmer, of Wilton Junction, and C. P. Hanley, of Muscatine, for appellants.
John Fletcher, Atty. Gen., Earl F. Wisdom, Asst. Atty. Gen., and Marion C. Hamiel, Co. Atty., of Tipton, for appellees.
Prior to September 25, 1924, petitions were circulated in Cedar county for the enrollment of said county under the county area eradication plan for the eradication of bovine tuberculosis. Notice was given and a hearing had on said petitions. Thereafter the board of supervisors of said county made application in writing to the secretary of agriculture for the enrollment of said county under the county area eradication plan. The county auditor certified to the secretary of agriculture that the papers forwarded to the secretary of agriculture contained a true, correct, and complete copy of the petitions and names signed thereto. Thereupon the secretary of agriculture enrolled said county as a county area testing unit, and a tax was levied by the board of supervisors for carrying out the provisions of the statute for the succeeding two years. In 1926 additional petitions and agreements were filed with the county auditor for the enrollment of said county under the accredited area plan. On July 9, 1926, the county auditor certified to the secretary of agriculture a true copy of the names on said original petitions, as filed in his office on July 2, 1926. After said list had been so certified to the secretary of agriculture, said officer caused notice to be published in two newspapers in Cedar county, of a hearing to be had before him at the courthouse at Tipton, on August 5, 1926. On the date set for the hearing, the secretary of agriculture did not appear in person, but his place was taken by the head of the division of animal industry. Subsequently, the secretary of agriculture notified the county auditor of Cedar county that said county had been enrolled by him as an accredited area. Later this action seeking an injunction to prevent further proceedings under said accredited area plan, was instituted.
[1] I. Appellants challenge the original proceedings under which the county area plan was adopted. The board of supervisors made its finding on the original petitions in regard to the enrollment of the county under the county area eradication plan on September 25, 1924, and it was shortly thereafter that the secretary of agriculture enrolled said county under said plan. Subsequently the county proceeded to operate under said county area eradication plan until it was enrolled under the accredited area plan. Appellants contend that the county auditor did not certify the original petitions and the signatures thereto to the secretary of agriculture as the basis for the enrollment of the county under the county area eradication plan, but only copies of the petitions and a certified typewritten list of the signers thereto. This was a substantial compliance with the statute.
Code, § 2684, provides, in part, as follows: “The application shall be accompanied by a copy of the petition and agreements, together with the action of the board thereon, duly certified by the county auditor.”
Section 2685 in part is as follows: “Certified copy of the agreements as filed with the secretary of agriculture shall have the same force and effect as originals on file with him.”
Under these sections it cannot fairly be contended that it was necessary for the county auditor to certify to numerous petitions which were identical except to the signatures thereto. No useful purpose could be served by filing a large number of copies of the petition. It may be that duplicate copies of the petition were circulated and signed, but the statute contemplates that a copy of the petition shall be filed with the secretary of agriculture, and the names of all who signed this petition (or a duplicate copy thereof) were duly certified. This was a substantial compliance with the statute. It may be that a different rule would prevail as to the agreements under the accredited area plan, as each agreement binds the party signing it and differsfrom a general petition; but on this question we make no pronouncement.
Furthermore, there can be no question but that, at the time of the commencement of the proceedings to enroll the county under the accredited area plan, the county was “operating under the county area plan.” Such a situation is contemplated by the statute. Code, § 2694. The county was in fact “operating under the county area plan.” Peverill v. Board of Supervisors, 201 Iowa, 1051, 205 N. W. 543;Peverill v. Board of Supervisors (Iowa) 222 N. W. 535, filed December 14, 1928.
[2] II. The petitions and agreements filed contained the following provision: “We, the undersigned residents of Cedar County, Iowa, hereby petition your honorable body to make application to the Iowa Department of Agriculture for the enrollment of said county under the county area plan for the eradication of bovine tuberculosis, and we represent that each of us own breeding cattle within the county, and each for himself agrees that he will permit his entire herd of any of them to be examined and tuberculin tested or retested at such times as may be considered necessary by the Bureau of Animal Industry of the United States Department of Agriculture and the Iowa Department of Agriculture, and that he will conform to and abide by all the rules and regulations laid down or which may be adopted by said departments for the purpose of carrying out the work of eradicating bovine tuberculosis.”
After said agreements had been signed and filed, certain of the signers attempted to withdraw their signatures to said agreements and petitions. Regarding said matter, the parties stipulated: “It is further stipulated and agreed that if the owners of breeding cattle can legally withdraw their signatures from petitions previously executed similar to plaintiffs' Exhibit A, that then and in such event there are sufficient withdrawals on file with the Secretary of Agriculture to defeat the enrollment of Cedar County under the Accredited Area Plan.”
Section 2694 of the Code of 1924, chapter 54, Acts Forty-First General Assembly, provides as follows:
Under the record it appears that prima facie there were a sufficient number of signed agreements before the secretary of agriculture to meet the requirements of the statute. “This gave him jurisdiction, and the withdrawal of some of said signatures before final...
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