Rowland v. Morris , 152 Ga. 842 ( 1922 )

Hines, J.

(After stating the foregoing facts.)

1. On August 17, 1918, the legislature passed the statute known as the State-wide tick-eradication act. The plaintiff filed his petition to enjoin the county cattle inspector and sheriff of the county from putting his cattle in quarantine, and from dipping the same, under the provisions of this act, on the ground that the same was unconstitutional, because it did not provide for notice to the owners of such cattle, and did not give them an opportunity to be heard on the question whether their cattle were infested with ticks or had been exposed to tick infestation. The plaintiff insists that he was thus deprived of due process of law, under the fourteenth amendment to the constitution of the United States and under the similiar provision in our State constitution.

The fourteenth amendment to the Federal constitution is not designed to interfere with the police power of the State to prescribe regulations to protect the health, peace, morals, education, general welfare, and good order of the people. Barbier v. Connolly, 113 U. S. 27 (5 Sup. Ct. 357, 28 L. ed. 923); State v. McCarty, 5 Ala. App. 212 (59 So. 543); Cassidy v. Wiley, 141 Ga. 331, 338 (80 S. E. 1046, 51 L. R. A. (N S.) 128). In the last case this court has held that the similar provision in our State constitution does not interfere with the exercise by the State of this power. If this statute falls within the circle of the police power, it lies out of the orbit of the due-process clauses of the Federal and State constitutions. So the question arises, does this statute come within the police power of the State? What is the police power ? " It ■ is universally conceded to include everything

essential to the public safety, health, and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance.” Lawton v. Steele, 152 U. S. 133 (14 Sup. Ct. 499, 38 L. ed. 385); Mack v. Westbrook, 148 Ga. 692 (98 S. E. 339). A very'large discretion is.vested in the legislature to determine what the public interests require, and what measures are necessary to their protection. Barbier v. Connolly, 113 U. S. 27 (supra); Kidd v. Pearson, 128 U. S. 1 (9 Sup. Ct. 6, 32 L. ed. 346); Mack v. Westbrook, 148 Ga. 690, 692 (supra).

The validity of statutes or ordinances authorizing the destruction of animals having infectious or contagious diseases has been sustained in a number of eases, as an exercise of the police power. Durand v. Dyson, 271 Ill. 382 (111 N E. 143, Ann. Cas. 1917 D, 84); New Orleans v. Charouleau, 121 La. 890 (46 So. 911, 18 L. R. A. (N. S.) 368); Newark etc. R. Co. v. Hunt, 50 N. J. L. 308 (12 Atl. 697); Chambers v. Gilbert, 17 Tex. Civ. App. 106 (42. S. W. 630), s. c. (writ of error refused) 93 Tex. 726; Livingston v. Ellis County, 30 Tex. Civ. App. 19 (68 S. W. 723); Maynard v. Freeman (Tex. Civ. App.), 60 S. W. 334; Lowe v. Conroy, 120 Wis. 151 (97 N. W. 942, 66 L. R. A. 907, 102 Am. St. R. 983, 1 Ann. Cas. 341); Houston v. State, 98 Wis. 481 (74 N. W. 111, 42 L. R. A. 39). So goods laden with infectious disease may be seized under health laws, and, if they can not be purged of their poison, may be committed to the flames. Gilman v. Philadelphia, 70 U. S. 713, 730 (18 L. ed. 96). So a city having power to abate nuisances endangering the public health and safety may destroy damaged grain. Dunbar v. Augusta, 90 Ga. 390 (17 S. E. 907). So bedclothing infected with disease may be destroyed. Mayor &c. of Savannah v. Mulligan, 95 Ga. 323 (22 S. E. 621, 29 L. R. A. 303, 51 Am. St. R. 86). The confiscation and destruction of milk intended to be sold in a city, which has been drawn from cows not subjected to tuberculin tests, as required by a municipal ordinance, does not unconstitutionally deprive the owner of his property without due process of law. Adams v. Milwaukee, 144 Wis. 371 (129 N. W. 518, 43 L. R. A. (N. S.) 1066), s. c. 228 U. S. 572 (33 Sup. Ct. 610, 57 L. ed. 971). So the quarantine of domestic animals, infected with disease, or which have been exposed to such infestation, falls within the police power and is not inhibited by the constitution of the United States. Richter v. State, 16 Wyo. 437 (95 Pac. 51); State v. Mo. Pac. Ry. Co., 71 Kans. 613 (81 Pac. 212); Garff v. Smith, 31 Utah, 102 (86 Pac. 772, 120 Am. St. R. 924); State v. McCarty, 5 Ala. App. 212 (supra); Smith v. St. Louis &c. Ry. Co., 181 U. S. 248 (21 Sup. Ct. 603, 45 L. ed. 847).

■AYhere the particular thing, or the act sought ,to be abated, is made a nuisance by statute, or is characterized as Such by the common law, or is such per se, and an officer is commanded by law to abater it, no notice or judicial determination is necessary as a prerequisite to its abatement. In such case an officer or agent effecting the abatement would not be liable. Mayor &c. of Americus v. Mitchell, 79 Ga. 807 (5 S. E. 201); Dunbar v. Augusta, 90 Ga. 391 (supra); Mayor &c. of Savannah v. Mulligan, 95 Ga. 323 (supra); Western &c. R. Co. v. Atlanta, 113 Ga. 537 (38 S. E. 996, 54 L. R. A. 294); Peginis v. Atlanta, 132 Ga. 302 (63 S. E. 857, 35 L. R. A. (N. S.) 716 McWilliams v. Rome, 142 6a. 848 (83 S. E. 945).

In cases where statutes or valid municipal ordinances define the . terms and conditions upon which property may be destroyed as a nuisance, or persons or property quarantined when infected by disease, or exposed to contagious disease, the officers or agents of a State or municipality act at their peril. Mayor Sc. of Savannah v. Mulligan, supra; McWilliams v. Rome, supra. Does this act declare cattle which have not been treated for tick eradication a nuisance? It prohibits the movement of cattle infested with the cattle-fever tick into, within, or through this State, at any time or for any purpose, except as therein provided. It requires the county authorities in each and every county, where tick eradication has not been completed, to .construct such number of dipping-vats as may be fixed by the State Veterinarian, and to provide the proper chemicals and other materials necessary to be used in the systematic work of tick eradication in such counties. Cattle, horses, or mules infected with cattle-ticks or exposed to tick infestation, where their owners, after thirty days written notice from a local or State inspector, shall fail or refuse to dip such animals every fourteen days in a vat properly charged with arsenical solution as recommended by the United States Bureau of Animal Industry, under the supervision of the local inspector in charge of tick eradication, shall be placed in quarantine and dipped and cared for at the expense of the owner by the local inspector. It is made unlawful for any inspector to knowingly permit any cattle, horses, or mules to be kept in the territory for which he is appointed, without being so treated. While this statute does not in so many words declare cattle which have not been treated for tick eradication, as provided in this act, to be' public nuisances, it does in effect make them such. York v. Hargadine, 142 Minn. 219 (3) (171 N. W. 773, 3 A. L. R. 1627). It is a matter of common knowledge that the cattle of this State were formerly infested with cattle-fever ticks, or were exposed to tick infestation; and it is now a matter of common knowledge that the cattle in certain counties of this State, including the county of Johnson, are still infected with these ticks, or exposed to such tick infestation. This court will take judicial cognizance of the fact that Texas fever, a communicable and dangerous cattle disease, is prevalent in all counties of the State where tick eradication has not been completed; and that this state of affairs existed in the county of Johnson. State v. McCarty, 5 Ala. App. 212, 227 (supra); Grimes v. Eddy, 126 Mo. 168 (28 S. W. 756, 26 L. R. A. 638, 47 Am. St. R. 653).

As this statute in spirit and effect declares cattle which have not been 'treated for tick eradication to be public nuisances and dangerous to' the cattle industry of the State, the same can be summarily quarantined and treated for the purpose of tick eradication. The prevention of disease is the essence of a ¡quarantine law. Such a law is directed not only to the actual disease, but to all that have become exposed to it. Smith v. St. Louis etc. Ry. Co., 181 U. S. 248 (supra).

The summary abatement of this nuisance by quarantine and dipping of these cattle is the only available and efficient method of accomplishing the ends sought. If the right to abate had to be judicially determined after notice to a cattle-owner and an opportunity to be heard, the remedy would prove practically worthless. Lieberman v. Van De Carr, 199 U. S. 552 (26 Sup. Ct. 144, 50 L. ed. 305); Adams v. Milwaukee, 228 U. S. 572, 584 (supra).

This statute is not unconstitutional for any of the reasons alleged by the plaintiff. We have undertaken to show above that it does not violate the fourteenth amendment to the constitution of the United States or the same provision of the constitution of this State. It does not violate the fifth amendment to the constitution of the United States, because that amendment is a limitation upon the power of Congress, and not upon the powers of the State. Quarantining infected cattle, and treating them for the eradication of disease, is not such a taking of property for public use as requires compensation to be made to the owner. Wherever property becomes a nuisance, the nuisance can be abated without compensation to the owner and at his own expense. Dunbar v. Augusta, 90 Ga. 390 (supra).

2. It is alleged by the plaintiff that the county inspector and sheriff are proceeding to seize, quarantine, and treat his cattle for tick eradication, under an affidavit made by the inspector reciting that the plaintiff has failed, after due notice, to dip his cattle as required by this act, and under a warrant based on said affidavit, issued by the judge of the superior court, directing the sheriff to quarantine and dip said cattle, when there-is no authority for the making of said affidavit or the issuing of said warrant. This act directs the local inspector to do these things, and makes it the duty of the sheriff of any county in which the work of tick eradication is in progress to render said inspector any assistance necessary to the enforcement of this act. The statute is the warrant for the inspector and sheriff to seize, quarantine, and treat these cattle. No warrant from any court is necessary for this purpose. Conceding that the affidavit made by the local inspector and the warrant issued by the judge of the superior court to be null and void for want of authority, still these officers were' authorized to do these things without any other warrant or authority than that conferred by these acts. The fact that such warrant was null and void does not prevent them from acting under the authority of the statute.

So we think the judge properly denied the injunction in this case.

Judgment affirmed. All the Justices concur. Atkinson and Gilbert, JJ., concur in the judgment.