Gill v. Cox

137 S.E. 40, 163 Ga. 618, 1927 Ga. LEXIS 35

• Court: Supreme Court of Georgia
• Decided: January 15, 1927
• Docket: No. 5465
• Status: Published

Opinion

Hines, J.

(After stating the foregoing facts.)

A motion is made to dismiss the bill of exceptions in this case, on the ground that the petition was brought to enjoin the dipping of cattle during December, 1925, and January, February, and March, 1926, and that as these months have passed the questions for decision raised by the bill of exceptions in this case are now moot. It is true that injunction was sought to enjoin the dipping of cattle of the plaintiffs during the months named, ' but it was also brought to enjoin the dipping of these cattle during the winter of 1926. For this reason the questions raised for decision are not moot, and the motion to dismiss the bill of exceptions on this ground is denied.

By the act of August 16, 1909 (Ga. Laws 1909, pp. 131, 134, 1 Park’s Code, § 2079), the work of cattle-tick eradication thereunder, in any county or part of a county, or in any part or whole of the State, was to be taken up whenever the commissioner of agriculture deemed it wise and best, and had issued a notice to that effect. By the act of August 13, 1910 (Acts 1910, p. 125, 1 Park’s Code, §§ 2082(a), 2082(b)), the office of State veterinarian, in the Department of Agriculture, was created, and the duties of this officer are declared to be “to investigate and take proper measures for the control and suppression of all contagious and infectious diseases among the domesticated animals within the State, under such rules and regulations as may be promulgated by him and approved by the commissioner of agriculture of Georgia.” It is further declared that “he shall assume charge of the work of cattle-tick eradication in co-operation with the Federal authorities.” By the act of August 17, 1918 (Acts 1918, p. 256, 8 Park’s Code, § 2084(e)), it was provided that the systematic work of tick-eradication, in all counties in which said work had not been completed, should be begun on April 1, 1919, or, if not then begun, on “such subsequent date as may be fixed by the State veterinarian, with the approval of the commissioner of agriculture.” Under the above laws, the eradication of tick from cattle in Bryan County was completed, and the county was released from State and Federal quarantine restrictions in the year 1923. The entire State was likewise released in 1924. By section 2 of the act of August 18, 1924 (Acts 1924, p. 78, 12 Park’s Code, § 2082 (1)), it is provided that “After a county has completed tick-eradication, as evidenced by complete release of all State and Federal quarantine restrictions, any subsequent reinfestation of the tick-free area shall be eradicated by the State veterinarian at the expense of the State and without expense to the county, as at present provided in section 3 of the act approved August 18, 1918, commonly known as the Statewide tick-eradication act.” It is insisted by counsel for the plaintiffs that under this section, after a county has completed tick eradication, as evidenced by a complete release of all State and Federal quarantine restrictions, any subsequent reinfestation can not be eradicated by the State veterinarian until the commissioner of agriculture has determined that such eradication is wise and best, and has issued notice to that effect under section 7 of the act of 1909, above referred to. We do not think that this contention is sound. The above provision of the act of 1909 applied only to the initial eradication of tick in infested cormties, under the laws in force prior to the passage of the act of 1924. The act of 1924 applies to the eradication of tick whenever a tick-free area becomes subsequently reinfested with these- pests. Section 2 of said act provides that “any subsequent reinfestation of the tick-free area shall be eradicated by the State veterinarian.” By this law it is made the mandatory duty of this officer to act in this matter. His duty in the premises is not made dependent upon any action taken by the commissioner of agriculture. The previous approval of the latter officer is not necessary in order to authorize the State veterinarian to act. No decision of the commissioner of agriculture that such action is deemed wise and best is necessary before the State veterinarian can act. The giving of notice by the commissioner of agriculture that said eradication has been determined upon is not a condition precedent in order to authorize the State veterinarian to act. It follows that the petition was not demurrable upon the ground that it failed to allege that the commissioner of agriculture had determined that the eradication of tick from cattle in this county, after it had become reinfested, was wise and best, and had given notice to this effect.

Plaintiffs attack the constitutionality of section 4 of the act of August 17, 1918, on the ground that it denies to them due process of law. This section provides that where the owner of cattle, horses, or mules infected with cattle-ticks, or exposed to tick infestation, fails or refuses, after thirty days written notice from the local or State inspector, to dip such animals in the manner provided therein, such animals “shall be placed in quarantine and dipped and cared for at the expense of the owner by the local inspector.” This section further provides that “Any expense incurred in the enforcement of this provision shall be constituted a lien upon any animals so quarantined; and should the owner fail or refuse to pay said expense after three days notice, the animals shall be disposed of as provided by section 2034 of the Civil Code of Georgia, so far as said section refers to advertising and other proceedings to sell.” Plaintiffs assert that this section of said act, when construed in connection with the above section of the Code, does not give to them any remedy for contesting the amount of expense claimed by the local inspector for quarantining and dipping such animals, and thus that they will be deprived of their property without due process of law. We do not think that this contention is well founded. Section 4 of the act of August 17, 1918, and section 2034 of the Civil Code, when construed together, furnish the owner of animals impounded under that section an adequate remedy for contesting the amount of expense claimed by the local inspector for quarantining and dipping such animals. It will be noted that any expense incurred in enforcing this section of the act of 1918 is made a lien upon any animals quarantined thereunder. This section further provides that “should the owner fail or refuse to pay said expense after three days notice, the animals shall be disposed of as provided by section 2034 of the Civil Code of Georgia, so far as said section refers to advertising and other proceedings to sell.” Section 2034 of the Civil Code deals with the remedy of the impounder of animals running at large in no-fence territory, and of the remedy of the owner of stock impounded. Under this section, when the impounder and owner of the animals impounded can not agree upon the amount of damages done by such animals, the impounder must institute a proceeding before the justice of the peace of the district, and if there is no such justice in the district, then before the most convenient justice, to have adjudicated the amount of damages to which the impounder is entitled. Under said section the owner of this animals has a right to replevy the same by giving the bond therein provided. We think it was the intention of the legislature to make this remedy applicable to an inspector who impounds cattle under section 4 of the act of 1918. So, if such inspector and the cattle-owner can not agree upon the amount of expense incurred by the inspector in having the animals of the defaulting owner quarantined and dipped, then the inspector must resort to the remedy provided in this section of the Code for the recovery of such expense. He can not advertise and sell them without such proceeding. If the cattle-owner wishes to replevy his animals so impounded, and thus lessen the expense of keeping them thereafter impounded, he can give the bond provided for in said section of the Code. That part of section 4 of the act of 1918, which provides that “should the owner fail or refuse to pay said expense after three days notice,” does not authorize the inspector to sell the animals after advertising them for three days. The purpose of this notice is to give to the owner an opportunity to pay this'expense, and thus avoid the • further expense of litigation provided in the above section of the Code. If, after the expiration of such three days notice, the owner does not pay this expense, then the inspector must proceed as provided in this section of the Code. Thus, in our opinion, the owner of animals impounded under this section of the act of 1918 is fully protected, and his animals can not be disposed of by the inspector until the amount of the expense has been adjudicated in the manner above indicated. So the attack of the plaintiffs upon this section of the act of 1918, on the ground that it deprives them of due process of law, is without merit.

The plaintiffs insist that the defendants are enforcing the provisions of section 4 of the act of 1918 in an arbitrary and unreasonable manner, and that for this reason they should be enjoined from impounding and dipping their cattle in the manner in which they are so seizing and dipping them, and from continuing to so seize and dip them as they threaten to do. They insist that this administration by the defendants of said section is unconstitutional, in that it violates the due-process clause of our State constitution. The allegations of the petition upon this subject are as follows: During the time when said county was under original quarantine for fever-ticks, and the cattle therein were in process of being dipped under authority of the State veterinarian, he and his employees stated that it was unwise to dip cattle during the winter months of December, January, February, and March, for the reasons (a) that cattle which run at large during said months seek cover in the deepest parts of the swamps, which constitute a great part of the territory of said county, and for this reason all of the cattle therein could not be procured to be dipped; (b) because cattle become more or less weak and emaciated during the winter months, and the dipping of them produces a very high percentage of mortality; (c) because during the latter part of the winter such cattle become so weak that when put in the vat they have not strength enough to get out; and (d) because during the winter months fever-ticks are more, or less dormant, and their eradication can not be completed without the necessity of destroying a large percentage of the cattle dipped. The dipping done and proposed to be continued by the defendants is being had in part at the expense of the county, the defendants insisting that the county shall maintain and repair vats and provide the cattle-dip required; and they threaten that if the county shall discontinue at any time to do these things, they will maintain only one dipping-point in the county, without regard to the prohibitive expense to which each of plaintiffs and other cattle-owners in the county would thereby be put, requiring them to drive their cattle for great distances to the dipping-point. Such expense would be greater than the value of the cattle involved. Said acts of the defendants violate the provisions of section 2 of the act of August 18, 1934 (Acts 1934, p. 78), which expressly provides that after a county has completed tick eradication, as evidenced by complete release from all State and Federal quarantine restrictions, any subsequent reinfestation of the tick-free area shall be eradicated by the State veterinarian at the expense of the State and without expense to the county. Defendants require plaintiffs and other cattle-owners to bring their cattle at their own expense to the dipping-vat, and dip them; and whenever plaintiffs or other cattle-owners fail to do this at their own expense, defendants claim that, under the provisions of section 3084(g) of 12 Park’s Code Supp. 1926, all expenses incident thereto shall constitute a lien upon the animals quarantined, and that such animals may be sold by them, and from the proceeds of such sale may be taken all expenses of ’ advertising, feed, and expense of quarantine and dipping such animals. Said acts of the defendants are illegal. The said acts of the defendants, who are insolvent, are willful, abusive of their alleged official powers, and constitute an arbitrary, unreasonable, and illegal exercise of discretion.

Do these allegations show an arbitrary and unreasonable administration of the act of 1934? Before answering this question, we must deal with certain questions of law, the determination of which is necessary to a proper answer. Dipping-vats and chemicals must be furnished at the expense of the State and without expense to the county. Colquitt County v. Bahnsen, 162 Ga. 340 (133 S. E. 871). But the expense of bringing cattle to the vats and dipping them must still be borne by the cattle-owners, under the act of 1934. So the requirement of the defendants that the plaintiffs shall bear this expense is not arbitrary and unreasonable. The allegation of the petition as to the statements of the State veterinarian and his employees, when dipping cattle in this county under the act of 1918, as to the unwisdom of dipping cattle during the months of December, January, February, and March, must be taken most strongly against the pleader, and does not amount to an affirmation that the dipping of cattle during these months is unwise for the reasons given. This allegation merely asserts a past opinion of these officials and the reasons given therefor, without alleging that the same was sound at the time plaintiffs filed their petition, and that such opinion was sound for the reasons given by these officials for their previously expressed opinion. It was incumbent upon the plaintiffs to distinctly allege that it was unwise to dip cattle in the winter months, and assign their reasons for that opinion upon this subject. These statements can not be. treated as admissions which will bind the public, as the officers making them did not do so in the exercise of any power conferred on them by law. Civil Code (1910), § 303.

This leaves for our consideration but one other allegation made by the plaintiffs in support of their position that the administration of the act of 1924, by the defendants, is arbitrary and unreasonable; and that is the assertion that the State veterinarian and the defendants threaten to maintain but one dipping-point in the county, if the county should discontinue paying a part of the expense of providing vats and chemicals for this work, which would render the expense of taking their cattle to such point prohibitive, in that such expense would exceed the value of their cattle. Conceding that such administration of the act of 1924 would be arbitrary and unreasonable, the question then arises whether the plaintiffs would be entitled to injunctive relief against such administration of this act. The plaintiffs, in the event they failed or refused to take their cattle to the dipping-point, and the same were taken there by the defendants, would only be liable for the necessary and reasonable expense which should have been incurred in having their cattle dipped. If the defendants acted arbitrarily and unreasonably in fixing but one dipping-vat in the county, and this resulted in unnecessary and unreasonable expense in the dipping of their cattle, then the plaintiffs would not be liable for so much of such expense as would not have accrued but for the arbitrary and unreasonable conduct of the defendants in establishing but one dipping-point in the county. The plaintiffs could avail themselves of this defense when sued by the local inspector therefor. They thus have an adequate and complete remedy at law, by which they can contest the reasonableness of the expense of having their cattle dipped; and for this reason they did not make a case for the extraordinary remedy of injunction.

Applying the above principles, the court did not err in sustaining the demurrer to the petition of the plaintiffs.

Judgment affirmed.

All the Justices concur.