Wyant v. Figy

• Decision Date: 04 October 1954
• Docket Number: No. 60,60
• Citation: 340 Mich. 602,66 N.W.2d 240
• Parties: Ross E. WYANT, Plaintiff and Appellee, v. Charies FIGY, Director of the State Department of Agriculture of the State of Michigan, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 240

66 N.W.2d 240

340 Mich. 602

Ross E. WYANT, Plaintiff and Appellee, v. Charies FIGY, Director of the State Department of Agriculture of the State of Michigan, Defendant and Appellant.

No. 60.

Supreme Court of Michigan.

Oct. 4, 1954.

Gregg, Glassen, Parr & Rhead, Lansing, for plaintiff-appellee.

Frank G. Millard, Atty. Gen., Edmund E. Shepherd, Sol. Gen., Lansing, Elburn Parsons, Chief Asst. Atty. Gen., Daniel J. O'Hara, Asst. Atty. Gen., on the brief, for defendant-appellant.

Before the Entire Bench.

SHARPE, Justice.

Plaintiff, Ross E. Wyant, owns a bee farm in the State of Ohio close to the southern Michigan line. For some time prior to the commencement of this suit he had moved bees from Ohio into Michigan and later returned them to Ohio. The movement of bees is seasonal, being influenced by crops growing in a certain area at a given time. In such movement bees are transported in hives, combs or other used apiary appliances. It is a known fact that bees pollinate various crops in the vicinity where the hives are located. Bees are subject to a disease known as foul brood. The only practical method of determining whether a colony of bees is infected with the disease is the visible evidence of dead brood in a hive. It is also possible that in the absence of dead brood around a hive that the bees may be infected. It is also possible for the disease to be carried in honey. The record shows that while the disease can be shipped in packaged bees, the disease is more likely to spread by the shipment of bees on combs and honey in used containers.

In August 1948, plaintiff instituted a suit in chancery to restrain the defendant from enforcing the following sections of the statutes, C.L.1948, § 286.13, Stat.Ann. § 12.143, and C.L.1948, § 286.18, Stat.Ann. § 12.148 'It shall be unlawful for any person, firm, corporation or transportation company to bring into this state any bees on combs, used hives or other used apiary appliances from any other states or other countries: Provided, however, That common carriers may transport bees and apiary appliances through this state if the shipment originated outside of this state and is destined for some point outside of it.

'* * * In addition to the penalties hereinbefore provided, bees on combs, used hives or other used apiary appliances brought into this state in violation of the provisions of this act shall be confiscated and destroyed.'

Plaintiff urges that the State may not unreasonably exclude from importation articles of commerce for its own protection and to prevent the spread of disease within its border, and that the above statutes amount to a State regulation of interstate commerce and involves an imposition of a direct burden and a discrimination against interstate commerce.

The trial court, after hearing testimony, held the act unconstitutional. In an opinion, the court said:

'Several experts testified and it was apparent from their testimony that it would be difficult to provide for inspection that would guarantee that bees brought into Michigan in ant manner would be free from disease. As a matter of fact, the record indicates that an adult bee may be laden with disease and yet the most diligent of inspections without killing the bee would not show or demonstrate the presence of said disease. In all fairness to the defendant, the proofs indicate that if the bees were not brought in on combs, used hives or other used apiary appliances, the possibility of disease would be lessened but would not be completely obviated. Apparently, the disease can only be found after the diseased bee has * * * its young.

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'From the above testimony it would indicate that even though there are no scientific means at the present time to determine whether or not bees are affected, there are still some means in which the disease can be found and that after an inspection of the bee-hive as testified to by Mr. Himbleton, it could be determined if the disease is present or if the bees in the particular hive were free from disease. The statute does not exempt bees which are free from the disease from being transported across the state line into Michigan, but provides that all bees, whether they are healthy or not and when shipped in used apiary appliances, combs or used hives shall be destroyed without any inspection whatsoever.

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'This court is of the opinion that the act is also unconstitutional in that it provides: for the summary seizure and destruction of bees even though the bees may be completely healthy, and without a hearing or notice of any kind to the party owning said bees and without any inspection to determine the condition of their health.'

Plaintiff produced Seymour E. Bailey, State Apiarist of Ohio, who testified:

'* * * I would say it is not possible by an inspection of a hive immediately prior to the hives being moved across the state boundary to determine absolutely the presence or absence of disease. You cannot be positive.

'* * * The only means we have, or the only practical means of determining whether a colony is infected with this disease organism that causes American foul brood, is the visible evidence of dead or diseased brood. If it was possible to examine honey from the hive you might microscopically see the spore organism, but that would be almost a very long chance that you would get hold of the honey that had it, or it would be very impractical, impossible I would say almost. As far as I am concerned, the only practical inspection and the only recognized regular inspection for visible evidence of diseased organism, of diseased bees, is the one that is done at the hive. This visible evidence is the disease organism which attacks the brood stage of the honey bee, and that is in the brood comb or in the cells where the queen has laid the eggs, and the organism kills the larva and it has very visible evidence of certain characteristics so that a person who is familiar with that can, by examination of that brood and seeing those dead brood, determine that it is what the cause is or what the disease is.

'* * * The only known means of destroying the spore form of the disease prior to shipment across state lines is by burning the colony of bees.

'* * * Foul brood is caused by an organism known as bacillus larvae which is...