Opinion
No. 21344
Decided February 6, 1929.
Constitutional law — State board of agriculture — Inspection for bovine tuberculosis and destruction of diseased cattle — Section 1121-1 et seq., General Code — Destruction not taking of private property or invasion of property rights — Sections 1 and 19, Article I, Constitution.
1. The legislature is authorized within its police power to require the examination, inspection and testing of cattle for bovine tuberculosis, and, if such disease is found to exist, to provide for the summary destruction of the diseased animal.
2. Such destruction of diseased animals does not constitute a taking of private property for public use, nor the invasion of the right of acquiring, possessing and protecting property given under the Constitution of the State of Ohio.
3. Section 1121-10, General Code, does not violate the provisions of Article I, Section 1, of Article I, Section 16, nor Article I, Section 19, of the Constitution of the state of Ohio.
ERROR to the Court of Appeals of Miami county.
This case was heard in the common pleas court of Miami county upon demurrer to the petition. The petition reads as follows in its material portions:
"The defendant, Charles V. Truax, is the duly appointed, qualified and acting director of the board of agriculture of the state of Ohio.
"The defendant, F.A. Zimmer, is the duly appointed, qualified and acting chief of the division of animal industry of the department of agriculture of the state of Ohio.
"The plaintiff is a farmer residing on a farm in Monroe township, Miami county, Ohio.
"The plaintiff is the owner of a herd of cattle used for dairy, feeding and breeding purposes which he keeps on said farm.
"Five of said herd are pure bred Jersey milk cows of the market value of two hundred dollars each. Said cows are duly registered in the American Jersey Cattle Club of New York City.
"One of said herd is a pure bred Jersey milk cow, not registered, but entitled to be registered, of the market value of two hundred dollars ($200.00).
"Four of said herd are pure bred Jersey milk cows, not registered, but entitled to be registered, of the market value of one hundred seventy dollars ($170.00) each.
"One of said herd is a pure bred Jersey heifer, not registered, but entitled to be registered, of the value of one hundred dollars ($100.00).
"Five of said herd are grade cows of the market value of one hundred dollars ($100.00) each.
"One of said herd is a young grade steer of the value of seventy dollars ($70.00).
"Two of said herd are grade heifers of the value of seventy dollars ($70.00) each; and
"One of said herd is a grade bull of the market value of one hundred dollars ($100.00).
"The defendants with numerous appointees, employees and agents of the department of agriculture of the state of Ohio, have been extensively engaged in tuberculin testing of cattle owned and located on farms in Miami county, Ohio.
"The defendants and their said appointees, employees and agents are about to actively resume the tuberculin testing in Miami county, Ohio, and intend to test all cattle located in said county, including plaintiff's cattle above described.
"The defendants in making said tuberculin tests of cattle in said county of Miami claim to act under and by virtue of the provisions of Sections 1121-1 to 1121-25, inclusive, of the General Code of Ohio, and commonly known and called the Riggs Law of Ohio.
"The state board of agriculture of Ohio acting under the provisions of Section 14 of said Riggs Law, and being Section 1121-14 of the General Code, has adopted rules for compensation to owners of cattle condemned and slaughtered under the provisions of said Riggs Law. Said rules are now in force and the defendants and their agents, employees and appointees in making tuberculin tests of cattle in said county of Miami are operating under and enforcing said rules."
The rules in question provide, among other things, that no payment shall be made for any animals destroyed on account of tuberculosis unless the owner has complied with all lawful quarantine regulations and an agreement, and impose various regulations which must be complied with in order to secure payment of compensation for cattle destroyed under the act.
No compensation is allowed for steers and grade bulls. In order to secure compensation the owner of the herd is required by the rules to sign an agreement to comply with the rules and to carry out certain requirements as to disinfection, sanitation, etc. The plaintiff alleges further:
"There is only a limited market for cattle condemned under the Riggs Law by the defendants, and the plaintiff will be compelled to sell the carcasses of his cattle which defendants condemn and order slaughtered, at such price as can be obtained, and the salvage derived from said sale or sales will equal only from fifteen to thirty per cent. of the market value of plaintiff's said cattle, which may be condemned and ordered slaughtered by the defendants.
"The provisions of said Riggs Law relating to the compensation to be paid owners of cattle condemned and ordered slaughtered by the defendants, and especially Sections 10 and 14 thereof, otherwise known as Sections 1121-10 and 1121-14 of the General Code of Ohio, and the rules of compensation above copied, and the provisions of said agreement above copied, are all in contravention of the inviolate right of every person to possess and protect property conferred by Article I, Section 1, of the Constitution of Ohio, and in contravention of the provision that private property taken for general welfare that the owner shall be compensated in money to be assessed by a jury, as provided in Article I, Section 19, of the Constitution of Ohio.
"Said Riggs Law fails to provide for any appeal to the court and fails to provide for any other method or manner by which the cattle owner may have his right to compensation and the amount thereof determined by court and a jury if demanded, and that said Riggs Law in said respect contravenes the provision of the Constitution of Ohio that all courts shall be open and every person, for an injury done him or his property, shall have remedy by due course of law, conferred upon every person by Article 16, of the Constitution of Ohio [Article I, Section 16].
"The plaintiff has not waived indemnity for any of his cattle that may be condemned and slaughtered by the defendants.
"He has not signed contract, of which the above is a copy, and has not entered into any agreement, oral or written, with respect to tuberculin testing of his cattle and the compensation to be paid for cattle owned by him which may be condemned and ordered slaughtered by the defendants.
"The plaintiff, in the event the defendants subject his cattle to tuberculin tests and condemn and order slaughtered any of said cattle, will not receive any compensation for said cattle unless he signs the agreement, of which the above is a copy, and would then receive only inadequate compensation of about two-fifths of the market value of said pure bred registered Jersey cows in his herd, and about one-third of the market value of the pure bred, but not registered, cattle in his herd, and about one-half of the market value of the grade cows in his herd, and would receive no compensation whatever for said grade steer and grade bull in his herd.
"The defendants and their said appointees, employees and agents are about to resume active tuberculin testing in Miami county, Ohio, and threaten to and will, unless enjoined by an order of this court, enter the said farm premises of the plaintiff and subject all of his said cattle to said tuberculin test and will require the plaintiff to sign and comply with all the requirements of said agreement, of which the above is a true copy, before he can be paid even the limited and inadequate compensation therein provided for, and if the plaintiff refuses to sign said agreement then defendants threaten to and will, unless enjoined by an order of this court, condemn and order slaughtered all of plaintiff's said cattle reacting to said tuberculin test, without payment of any compensation whatever to the plaintiff for said cattle to the great irreparable injury and damage of the plaintiff.
"Wherefore, plaintiff prays the court to enjoin the defendants from giving said tuberculin tests to his said cattle and from condemning and ordering his said cattle, or any of said herd of cattle, slaughtered.
"Plaintiff further prays the court to adjudge the provisions of said Riggs Law contained in Sections 10 and 14 thereof, and now constituting Sections 1121-10 and 1121-14, General Code of Ohio, and to adjudge the method and manner of fixing and determining compensation to be paid cattle owners for cattle condemned and ordered slaughtered, as set forth in said rules of the state board of agriculture of Ohio, and under the terms set forth in said agreement, of which the above is a copy, which provide cattle owners must sign before compensation can and will be paid, are all in contravention of Article I, Section 1; Article I, Section 16, and Article I, Section 19, of the Constitution of Ohio.
"Plaintiff further prays the court to give and grant plaintiff all other relief to which he may be entitled."
The defendants demurred to the petition for the reason that it does not state facts sufficient to constitute a cause of action. The court of common pleas sustained the demurrer and dismissed the petition. Upon error proceedings being prosecuted to the Court of Appeals of Miami county, the Court of Appeals affirmed the judgment of the court of common pleas. The case comes into this court upon the filing of a petition in error as of right, a constitutional question being involved.
Mr. W.A. Haines and Mr. William Harry Gilbert, for plaintiff in error.
Mr. Edward C. Turner, attorney general; Mr. L.E. Harvey, prosecuting attorney, and Mr. Herman E. Werner, for defendants in error.
The broad question raised by the instant action is the constitutionality of certain sections of the so-called Riggs Law, which is embodied in Sections 1121-1 to 1121-25, General Code. This act provides for the examination, inspection, and testing of cattle for bovine tuberculosis, and, under certain circumstances, for the summary destruction of the diseased animal.
Section 1121-1 provides that the owner of any herd may petition the department of agriculture for an examination of his herd for tuberculosis.
Section 1121-2 provides for the use of metal numbered tags in case such cattle pass a satisfactory test.
Section 1121-3 defines the tuberculin test.
Section 1121-4 provides for reports upon all such tuberculin tests.
Section 1121-5 provides for detailing an agent to hold such a test, and provides that the department of agriculture shall set aside for each fiscal year from the biennial appropriation for tuberculous cattle an amount sufficient to indemnify the owner according to the provisions of Sections 1121-1 to 1121-25 of the General Code.
Under Section 1121-6, all veterinarians who find reactors are to mark such animals.
Section 1121-7 defines the term "reactor."
Section 1121-8 provides for the slaughter of condemned cattle, and provides that the owner of such condemned cattle shall be entitled to and receive indemnity, as provided in the rules of compensation of the state board of agriculture, and provides for the method of payment.
There is a further provision in this section for autopsies.
Section 1121-9 relates to the removal of reactors from the premises where they are located.
Provisions for disinfecting barns, for quarantine, for co-operation of the owner of the herd, and for authorization of veterinary services, are contained in Sections 1121-11, 1121-12, 1121-13, and 1121-15.
Penalties for failure to report are established in Section 1121-16.
Further sections of the statute provide for tuberculin test of the cattle in the county or township, for certification of the number of cattle in such county or township, and contain other measures with reference to the county and township test, which are not questioned here.
Section 1121-22 provides for a penalty for interfering with a tuberculin test or with the identification of tubercular cattle.
Section 1121-23 provides penalties for selling or concealing animals known to be reactors, and Section 1121-24 penalizes the removal of any animal from a quarantined herd without permission from the department of agriculture.
The particular sections attacked in the instant action are Sections 1121-10 and 1121-14, which read as follows:
Section 1121-10: "In order to secure indemnity as provided in the provisions of Sections 1121-1 to 1121-25 of the General Code, the value of all cattle reacting to a tuberculin test applied under the direction of the department of agriculture shall be determined by an appraisal made by a representative chosen by the owner and a representative chosen by the department of agriculture. In the event of a disagreement as to the amount of the appraisal, a third disinterested person shall be selected, at the owner's expense, by the two to act with them in the appraisal of the cattle."
Section 1121-14: "The state board of agriculture shall have authority to draft and adopt rules for the compensation to owners for tubercular cattle destroyed under the provisions of Sections 1121-1 to 1121-25 of the General Code, which compensation shall be subject to the appropriations made available by the General Assembly, and such rules shall provide for inspection where indemnity has been waived. The department of agriculture and all officers and employees thereof shall observe said rules. Said rules may also define any of the terms herein used."
A brief abstract of the rules adopted pursuant to Section 1121-14 has been set forth in the foregoing statement of facts.
It is the claim of the plaintiff in error that this statute and the rules adopted thereunder, and particularly Sections 1121-10 and 1121-14, contravene the right of every person to possess and protect property, conferred by Article I, Section 1, of the Constitution of Ohio, and contravene the provision that, when private property is taken for a public purpose, the owner shall be compensated in money, to be assessed by a jury, as provided in Article I, Section 19, of the Constitution of Ohio.
Plaintiff in error also claims that the Riggs Law, since it provides for no appeal to the court and no determination by a jury and a court of the right to compensation, violates the provisions of Article I, Section 16, of the Constitution of Ohio, that all courts shall be open and that every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law.
Since the case arises upon demurrer, all of the well-pleaded facts of the petition are admitted.
Do Sections 1121-10 and 1121-14 of the Riggs Law violate the plaintiff in error's property right in his cattle, which may be killed if they are shown to be reactors?
The petition does not allege that any of these cattle have been condemned, nor even that they have been tested. It alleges that active testing is about to be resumed. For the technical purpose of deciding this demurrer, it might be held that no property right of the plaintiff in error has been violated when he does not show that his property is necessarily to be destroyed under the provisions of the act. However, the petition does allege that the plaintiff has not waived indemnity for any of his cattle, and that, in the event his cattle are slaughtered, he will receive very inadequate compensation. He states that the defendants and their agents threaten to subject his cattle to the tuberculin test, and will order slaughtered the cattle reacting to such test. Hence we proceed to consider whether the plaintiff in error's property right will be injured if his cattle are destroyed and compensation is made in accordance with the statute.
After consideration of the record and the adjudicated cases, we hold that the statute is constitutional, and that no property right of the plaintiff in error is violated thereby. Statutes of this nature, providing even drastic measures for the elimination of disease, whether in human beings, crops, stock, or cattle, are in general authorized under the police power. The preservation of the public health is universally conceded to be one of the duties devolving upon the state as a sovereignty, and therefore whatever reasonably tends to preserve the public health is a subject upon which the Legislature, within its police power, may take action.
In providing measures for the protection of public health, the destruction or summary abatement of public nuisances inimical to the public health may be ordered. Unwholesome food may be destroyed; diseased cattle may be slaughtered. Such action is not a taking of private property for public use. If the state were to requisition cattle for the use of its armies in the field, that would constitute a taking of private property for public use; but the destruction of diseased cattle is merely the abatement of a public nuisance. Hence statutes providing for summary destruction of diseased animals are not unconstitutional. State, ex rel. Spillman, v. Heldt, 115 Neb. 435, 213 N.W. 578; Lawton v. Steele, 152 U.S. 133, 14 S.Ct., 499, 38 L.Ed., 385; Houston v. State, 98 Wis. 481, 74 N.W. 111, 42 L.R.A., 39; Lowe v. Conroy, 120 Wis. 151, 97 N.W. 942, 66 L.R.A., 907, 102 Am. St. Rep., 983, 1 Ann. Cas., 341; Neer v. State Live Stock Sanitary Board, 40 N.D. 340, 168 N.W. 601; City of New Orleans v. Charouleau, 121 La. 890, 46 So. 911, 18 L.R.A. (N.S.), 368, 126 Am. St. Rep., 332, 15 Ann. Cas., 46; Livingston v. Ellis County, 30 Tex. Civ. App., 19, 68 S.W. 723; Fevold v. Board of Supervisors of Webster County, 202 Iowa 1019, 210 N.W. 139; Schulte v. Fitch, 162 Minn. 184, 202 N.W. 719.
We have been cited to no case holding the contrary. Moreover, these decisions uniformly hold that the summary destruction of the diseased animals does not constitute a taking of private property for public use, but is the abatement of a public nuisance under the police power of the state. Hence Article I, Section 1, and Article I, Section 19, of the Constitution of Ohio, are not violated.
In Lawton v. Steele, supra, the Supreme Court of the United States, in discussing the general subject of the police power, recognizes this doctrine when it says that the police power "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. Under this power it has been held that the State may order * * * the slaughter of diseased cattle."
The mere fact that a partial indemnity is given does not affect the question. Thus it is held in State, ex rel. Spillman, v. Heldt, supra:
"5. It is within the province of the Legislature in the exercise of police power to require the examination, inspection and testing of cattle for bovine tuberculosis, and if such disease is found to exist, to make provisions for the summary destruction of the diseased animals.
"6. In such cases, the more fact that the Legislature has made provision for but a partial indemnity to the owner for the cattle destroyed does not render the act unconstitutional, as being in conflict with the Fourteenth Amendment of the Constitution of the United States and our own Constitution."
It is in keeping with this doctrine that the cases hold the compensation given to be a gratuity merely. State, ex rel. Spillman, v. Heldt, supra; Knox County v. Kreis, 145 Tenn. 340, 236 S.W. 1. The latter decision pointed out that a statutory value of one-half of the true valuation was purely a gratuity, but the law was nevertheless sustained. The court says, page 343 (236 S.W. 2): "The Legislature might have directed the destruction of such animals without any compensation under the police power."
Since the statute does not contravene the private property rights of the plaintiff in error, neither does it violate Article I, Section 16, of the Bill of Rights of the Ohio Constitution, in that no appeal to a court and no assessment of value by a jury are provided. Under the sound doctrine which permits boards of health, without resort to the courts, in order to preserve the public health, to make summary destruction of property, this live Stock may also be summarily destroyed in order to maintain the public health among the live stock of the state.
Since the cattle have not yet been tested and no reactors have been found in plaintiff in error's herd, we do not decide the question of the validity of the rules adopted by the state board of agriculture pursuant to Section 1121-14, General Code.
The lower courts were correct in sustaining the demurrer to the petition, and the judgment of the Court of Appeals is hereby affirmed.
Judgment affirmed.
MARSHALL, C.J., KINKADE, ROBINSON, JONES, MATTHIAS and DAY, JJ., concur.