Appeal from District Court, Polk County; Hugh Brennan, Judge.
DEEMER, J.
As the killing of the horse was admitted, the principle question in the case is the right of the defendant, as a police officer or an officer of the Iowa Humane Society, to destroy the animal. He pleads justification under section 2339 of the Code, which reads as follows: “A sheriff, constable, police officer, officer of any society for the prevention of cruelty to animals, or any magistrate shall destroy any horse or other animal disabled or unfit for further use.” Plaintiff says that this act is unconstitutional in that it does not provide for notice to the owner or opportunity to be heard upon the question as to whether or not the animal was “disabled or unfit for further use,” and that, in any event, defendant took the chances on being able to prove that the animal was unfit for further use.
While the police power is very broad, and not capable of exact definition, it is not boundless, and, as a rule, is subject to constitutional limitations. Property may be destroyed under this power, without notice or opportunity to be heard, and, without compensation to the owner, to prevent the spread of contagious diseases, to stay the progress of a devastating fire, and in other exigencies, where the public needs protection or defense. Under this power, public nuisances may sometimes be abated; but, in all such cases, the necessity for summary action must exist, and one who would justify on the ground of necessity must be able to convince a jury that the occasion was present which authorized his act. The section of the Code relied upon is very broad and comprehensive in its terms and seems to proceed upon the theory that disabled animals and those unfit for further use may be summarily dispatched. The thought of the Legislature, doubtless, was the prevention of cruelty to animals rather than the safety or security of the public health or welfare.
If the animal was inflicted with a contagious disease, which was likely to be communicated to man or beast, doubtless the killing would be justifiable; but the defendant does not so plead, nor does the record tend to show any such state of facts. Moreover, if the animal had received some injury which entirely disabled it, as for example a broken leg, doubtless an officer might kill it without notice to the owner or an opportunity to be heard. But nothing of that kind is here shown. It is true that in one pleading defendant averred that the animal was disabled and unfit for further use, and he introduced testimony to show that the animal was diseased. We here quote therefrom, as follows:
“I saw the mare when I first arrived there, and she was in very good condition with the exception of the right front leg, which was swollen to about three times the normal size, within about two inches of the elbow joint, and the skin was all off with the exception of a little piece down on the shin bone. There was a piece of skin there two inches wide. Otherwise it was all off from top to bottom. Her leg was stiff, and she had no use of the knee joint, and I do not think she had any use of the ankle joint, and the toe was worn off where she had dragged it. I have handled horses all my life more or less, always owned from one or two to forty head. There was a very offensive odor coming from the sore on the mare's leg.”
Another witness testified: “Her leg was in pretty bad condition. It was pretty badly swollen. The skin was off from about halfway above the knee down to the fetlock on the back and on the side. It was swollen to about three times its natural size. I have seen the mare running loose in the streets, and I have seen him hold her with the halter. I have seen blood and matter coming from this sore running down in the grass. It had an odor which was worse at times than others. * * * I examined the leg carefully. Do not know whether it was what you call proud flesh or not, but there was pus there; the flesh was kind of raw looking. Stuff was dropping off from it; running off in kind of drops. It was kind of a bloody mixture that was running from the sore, and I saw the pus dropping off. It was dropping off on the street there when the horse was grazing on the parking; also I saw pus on the parking across the street and saw the horse there at both places where the pus was on the grass.”
A veterinary surgeon testified as follows: “* * * Was called to Ankeny to examine a mare. She was in the possession of Mr. Waud. I examined her on more than one occasion and went to Ankeny to examine her at the instance of the Humane Society. I found her in a very unsatisfactory condition. Her leg was affected with what is considered an incurable trouble. It is a fungus growth that springs out something like a mushroom and keeps growing; it is hard to control; it is of a cancerous nature. It gave off an odor, and from my knowledge and experience would say that this mare was incurable. My examinations were a week or two apart. There was no change in the condition upon my last examination, and I reported to the Humane Society that the mare was incurable. I was not a state veterinary nor an assistant. I do not know whether I treated this mare when Mr. Kirkendall owned her or not, but I do think that he came to me and told me that he had a mare with proud flesh and I gave him something for it. Q. Do you say that this mare was afflicted with a disease that is incurable? A. Yes, sir; that is what we thought, and that is what my experience has been with such cases. Q. Then you say it was an incurable disease? A. Yes, sir; it was the same as a cancer on a person. There are very few of them cured. I have no memorandum of the examination. I thought everything was settled.”
Plaintiff introduced the testimony of a former owner of the animal, who gave the following version of the matter: “* * * I raised the mare from a colt. At the time she was killed she was from 10 to 12 years old, as near as I can come to it. Mr. Crawford led the mare out of my barn and took her down the road and killed her. She came out lively with her head up and walked off, and, if a person did not see there was a sore on the leg, they would think nothing was the matter with her. She did not limp to amount to anything. The proud flesh covered the leg from the fetlock up very near to the body on the back part of the leg. She raised three colts. The mare was gentle. She was Hamiltonian and part Norman. * * *”
And, from the record, we make the following extracts, from other testimony adduced on the behalf of the plaintiff: “* * * I was at Kirkendall's the day Mr. Crawford took her out of the barn. After they got her out in the road they started on a run with her. I could notice that she limped. I knew that she had a sore on the leg. I never saw pus dropping from it. The first time I saw her the leg was swelled down over the hoof. She was in good condition. The lump of proud flesh was smaller the day she was killed than when I first saw her. * * * Q. Do you know whether she was better at the time she was killed than she was at the time you first saw her? A. Oh, yes, a great deal. Q. Was she in good condition the day they killed her? A. Yes, sir; nice and slick. I saw the plaintiff drive the mare. I observed her action. Q. How did she travel? A. She was going on a walk, walking off nicely. Q. A fast walk? A. She walked very fast; she seemed to be nice and spirited. She would act playful at times, act as if she were full of life. I remember seeing the horse out there a few days prior to the date of killing of the animal, and it did not act lame that I could notice. I was out there talking to him on the street when he was holding the horse there. I looked at the leg and did not notice anything drop from that sore. If there had been anything dropping from the sore out there in front of my place, I certainly would have noticed it. I noticed her leg very particularly. I never saw her limp. If she had limped, I certainly would have noticed it.”
Another witness said: “* * * There was a great change for the better when she was killed. I saw the horse a couple of weeks before, probably a week or ten days before, the time it was killed. There was a great change in her condition at that time compared to the time when Mr. Waud got her. She could use her knee joint at the time she was killed. There was not near so much proud flesh at that time. It was about halfway between the knee joint and the ankle. There was none above the knee. There was a scar there, but it was partly healed over. She had what you might say free use of the knee joint. I saw Waud ride her. I could not say she limped. She was not as free with that leg as the other, but could not say it was a limp. It was a hitch in it, but going down the road 50 yards from you, you would not...
