State v. McCarty

59 So. 543, 5 Ala. App. 212, 1912 Ala. App. LEXIS 167

• Court: Alabama Court of Appeals
• Decided: May 7, 1912
• Status: Published

Opinion

de GRAFFENRIED, J. —

In this proceeding the constitutionality of the act of the Legislature establishing a State Live Stock Sanitary Board, approved March 12, 1907 (Laws 1907, p. 413), as amended by an act approved August 6, 1907 (Acts 1907, p. 582), which now appears as sections 757 to 770 of the Code, inclusive, is presented to us for our consideration. The section of the Code under which this appeal is taken — section 6246' — limits the decision of this court to the constitutionality of the statute drawn in question, and to the consideration of that question alone. On this appeal we have nothing to do with the question as to the sufficiency vel non of the affidavit and warrant upon which the defendant was arrested. — State v. Street et al., 117 Ala. 203, 23 South. 807.

There are certain powers which necessarily belong to all governments, and without which a government can no more exist than a man can exist without lungs. “A Constitution is not to receive a technical construction, like a common-law instrument or statute. It is to be interpreted so as to carry out the great principles of the government, not to defeat them.” — Hamilton v. St. Louis County Ct., 15 Mo. 23; Dorman v. State, 34 Ala. 216.

The fourteenth amendment to the Constitution of the United States, “broad and comprehensive as it is, nor any other amendment, was designed to interfere with the power of the state, sometimes termed its ‘police power,’ to prescribe regulations to promote the health, peace, morals, education, and good order of the people, develop its resources, and add to its wealth and prosperity.” — Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923.

It cannot be denied that the motive which prompted the Legislature in placing these statutes in our Code of Laws was wise and beneficent; nor can it be claimed that the Legislature, in creating this law, did so with any covert jrarpose to contravene and set at naught any of the laws of the federal government. Provision is made in this law for harmonious action on the part of both the federal and state officials, in the effort, on the part of both the federal authorities and the state, through scientific experts, to control, minimize, and, if possible, stamp out communicable diseases to which stock are subject. “In every well-ordered state, property is held subject to the tacit condition that it shall be so used as not to injure the equal rights of others. Such injurious uses of property may be prevented by such regulations and restraints as the Legislature may think proper to impose; and in the establishment of these the only limits to the legislative authority which we can recognize are those which are declared by the fundamental law.” — Ingram v. State, 39 Ala. 247, 84 Am. Dec. 782.

In pursuance of a policy which it deemed wise and calculated to promote the interests of an important industry to which we have above referred, the Legislature, through the above provisions of the Code, called into existence the Live Stock Sanitary Board, investing it with certain powers which it deemed necessary for the maintenance of the health of live stock and the prevention of contagious diseases with which cattle and other live stock are liable to be affected.

Recognizing the patent- fact that to attempt to prescribe rules which could apply to all sections, cover all contingencies, and relate to all the multitudinous administrative details of the system thus formulated would be to attempt that which, in view of the nature of the subject, was impossible, the Legislature, in section 758 of the Code, empowered the State Live Stock Sanitary Board to make such rules and regulations as they might deem necessary for governing the movement, transportation, or disposition, not of all live stock, but of live stock that might be quarantined under the provisions of the law, and in section 763 of the Code, requires the owners, renters, or parties in possession of quarantined live stock or quarantined places to obey the directions contained in the rules and regulations of the State Live Stock Sanitary Board in cleaning and disinfecting infected live stock and infected or quarantined places, and also requires them to cleanse and disinfect such live stock and places within a reasonable time after receiving' notice from the Live Stock Board to do so. In section 7083 of the Code, punishment is provided, among other things, for “failing or refusing, without just cause and legal excuse, to cleanse and disinfect any infested or infected place in which live stock are kept, when requested or directed by the State Live Stock Board, the state veterinarian or his assistants, to do so.”

The appellee was arrested on a warrant issued on an affidavit charging him with a violation of said section 7083 of the Code. His demurrer to the affidavit, attacking the constitutionality of the above-mentioned sections of the Code, from section 757 to section 770, inclusive,- was sustained by the trial court, and the state appeals. The constitutionality of the above sections of the Code, as already stated, is the only question presented by the record, and is the only question which we are authorized to consider on this appeal.

Both principle and authority abundantly sustain the propriety — the necessity — of such legislation in general, and the validity of the legislative enactments now under consideration.

Legislation of this character is simply a legislative-exercise of the police power of the state, a power withont which, as we have already said, no enlightened state can exist. It cannot be denied that the state, out of necessity, has the undoubted power to provide by law for a quarantine of cattle afflicted with a contagious disease, and the unquestioned power to render such legislation effective of the purpose sought to be attained, by providing punishment for those who violate such laAv. Neither can it be questioned that the state also has the power to require its citizens, at their expense, to disinfect their diseased or infested live stock or infected places. — Morgan's Steamship Co. v. Louisiana Board of Health, 118 U. S. 455, 6 Sup. Ct. 114, 30. L. Ed. 237.

In the above article 4 of chapter 22 of the Code (sections 757 to 770, inclusive), the state has, through unquestionable constitutional channels, provided a system dealing Avith the preservation of the health of live stock and their protection from contagious diseases as fully as was Avithin the scope of legislative vision at the time of the passage of those laws. Realizing that conditions Avould naturally and in all probability arise which could not then be foreseen, and that the administration of the law Avas one coming peculiarly within the province of' scientific experts, the Legislature, out of necessity, Avisely left to the members of the board the making of such rules as would promote the efficient administration of the law; and itself provided, in section 7083, a spur for the observance of the law. If the appellee is guilty in this case, and is punished under this affidavit, he will be punished by the Avill and comniand of the Legislature of Alabama, and not by the will or command of the Live Stock Sanitary Board, or any of its members, or of any other authority.

Whenever the validity of an act is challenged, upon the ground that it is unconstitutional, the objector assumes the burden of showing that it is an exercise of authority, not legislative in its nature, or that it is inconsistent with some other provision of the Constitution. In cases of doubtful construction, the doubt should be resolved in favor of the constitutionality of the act. — Ingram v. State, 39 Ala. 247, 84 Am. Dec. 782; Dorman v. State, 34 Ala. 216; Whaley v. State, 168 Ala. 152, 52 South. 941, 30 L. R. A. (N. S.) 499.

By an act entitled an act “to prohibit the distillation of grain in the state of Alabama, except under the direction and authority of the Governor,” approved December 8, 1862 (Acts 1862, p. 43), it was provided that “it shall not be lawful, during the existing Avar, to distill, or convert into spirituous or intoxicating liquor any grain, or the product of any grain, unless hereafter employed or authorized by the Governor to do so.” Another section of the same act provided that it should be the duty of the Governor, “under such rules and regulations as he may prescribe, to cause such an amount of grain to be distilled, or converted into alcohol or spirituous liquors, as in his judgment is consistent Avith the common defense and the general Avelfare.” In the case of Ingram v. State, supra, the constitutionality of said act Avas attacked upon the same grounds now made the basis of the attack upon the act now under consideration; and in that case the Supreme Court said: “The objection that the act is invalid, because it transfers legislative power to the Governor, is not well taken. The Governor is simply the agent, appointed by the Legislature, . to carry out the provisions of th e law. He, it is true, is intrusted with a large discretion in the exercise of the powers conferred upon him; but we áre unable to see upon what principle this feature of the law can be held to invalidate it.” The excerpt, above quoted, from the decision of the Supreme Court in Ingram v. State, supra, is but a recognition by our Supreme Court of the well-established doctrine that, while the Legislature cannot delegate its power to make a law, it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. “To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend, which cannot be known by the lawmaking power, and need, therefore, be a subject of inquiry and determination outside of the halls of legislation.” — Locke’s Appeal, 72 Pa. 491, 13 Am. Rep. 716.

The case of Whaley v. State, 168 Ala. 152, 52 South. 941, 30 L. R. A. (N. S.) 499, is conclusive on the subject. under discussion. In that case the Supreme Court considered the validity of the statute authorizing street car companies to make rules and regulations governing the disposition of transfer tickets, and providing a punishment for the violation of such rules. Some of the Justices taking part in the decision of the case dissented from the conclusion of the court that the act was valid, on the ground that, while the authority granted to a subordinate governmental agency to make rules and regulations, the violation of which should be a, crime, was within legislative power, the grant in that case was not to such subordinate governmental agency, but to a private corporation. In the instant case, under the statutes now under consideration, the authority is conferred, not upon a private corporation, but on an arm of the state itself, and the authority conferred is, not to make a law, but to provide rules under which the law can be efficiently and effectively administered by that governmental agency.

In considering an act authorizing the State Board of Health to make rules and regulations concerning the pure food and drug act of the state of Indiana, the Supreme Court of that state, upholding the act against an attack similar to that here, said, in Isenhour v. State, 157 Ind. 517, 62 N. E. 40, 87 Am. St. Rep. 228: “This class of legislation emanates from an exercise of the police power of the state for the protection of the public health. The power of the Legislature, and its right to determine for itself Avhen an emergency for such legislation exists, and the means and instrumentalities necessary to accomplish the end in vieAV, is no longer a doubtful question. The particular character of the subject, embodying, as it does, considerations of sanitary science, is such as to require for just legal control something more than legislative wisdom to accurately designate the subjects and instances intended to be affected. The classification of these subjects and the prescribing of rules by which they may be determined by a qualified agent, is not legislation, but merely the exercise of administrative powers. The lato itself is perfect and effective in all its parts. In respect to the matters to be determined by the State Board of Health in its execution, it awaits the performance of those duties. When performed, the law operates upon the things done by the board. While unperformed, the laAV remains ready to be applied whenever the preliminary condition exists. It is said in Blue v. Beach, 155 Ind. 121, 56 N. E. 89 [50 L. R. A. 64, 80 Am. St. Rep. 195] : ‘In order to secure and promote the public health, the state ci'eates boards of health as an instrumentality or agency for that purpose, and invests them with the poAver to adopt ordinances, by-laws, rules and regulations necessary to secure the objects of their organization. While it is true that the character or' nature of such boards is administrative only, still the powers conferred upon them by the Legislature, in view of the great public interest confided to them, have always received from the courts a liberal construction; and the right of the Legislature to confer upon them the power to make reasonable rules, by-laws, and regulations is generally recognized by the authorities.’ ”

While a legislative body cannot delegate its legislative power to make a law, it may delegate the power to an arm of the government to make and enforce regulations for the execution of a statute according to its terms. — Union Bridge Co. v. U. S., 204 U. S. 364, 27 Sup. St. 357, 51 L. Ed. 523; St. Louis Merchants’ Bridge Termmal Co. v. U. S., 188 Fed. 191, 110, C. C. A. 63.

“The true distinction,” said Judge Ranney for the Supreme Court of Ohio, in Cincinnati, Wilmington & Zanesville R. R. Co. v. Commissioners, 1 Ohio St. 77, 88, in a declaration which, according to Sanborn, Circuit Judge, in St. L. Mer. Bridge Ter. R. R. Co. v. U. S., supra, has been repeatedly upheld by the Supreme Court of the United States, “is between a delegation of power to make the law, which necessarily involves a discretion as to Avhat it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done. To the latter no valid objection can be made.”

The members of the Live Stock Board can pass rules and regulations governing the subjects named in article 4 of chapter 22 of the Code, because the Legislature, by ■ properly enacted legislation, has Avilled that they shall have that pOAver; and, as we have already said, if the defendant is convicted, it will not be because of the will of the members of the Live Stock Board, but because of the legislative will duly expressed in statutes evidencing that will.

The validity of such statutes, says the Supreme Court of Massachusetts, has been long recognized, and may be upheld upon one or both of two grounds: “They may be considered as being within the principle of local self-government as to such matters; the board of-health being treated as properly representing the inhabitants in making regulations, which .often are needed at short notice, and which could not well be made, in all kinds of cases, by the voters in town meeting assembled. Perhaps some of these statutes may also be justified constitutionally, on the ground that the work of the board of health is only a determination of details in the nature of administration, which may be by a board appointed for that purpose; and that the substantive legislation is that part of the statute which prescribes a penalty for the disobedience of the rules which they make as agents performing executive and administrative duties.”— Broadbine v. Revere, 182 Mass. 598, 66 N. E. 607. See, also, Hurst v. Warner, 102 Mich. 238, 60 N. W. 440, 26 L. R. A. 484, 47 Am. St. Rep. 525; In re Griner, 16 Wis. 427; Eureka Harbor Com'rs. v. Excelsior Power Co., 88 Cal. 491, 26 Pac. 375, 22 Am St. Rep. 321; People v. Bellinger, 145 App. Div. 141, 129 N. Y. Sup. 92.

In the case of Pierce v. Doolittle, the Supreme Court of Iowa said, through McClain, C. J., that a statute (Code 1897, § 2573) providing punishment for a violation of a regulation of the State Board of Health is not unconstitutional, on the theory that legislative power to create crimes is thereby delegated to such board. “When these boards duly adopt rules or by-laws by virtue of legislative authority, such rules and by-laws, within the respective jurisdictions, have the force and effect of the law of the Legislature; and, like the ordinance or by-law of a municipal corporation, they may be said to be in force by authority of the state.” — Pierce v. Doolittle, 130 Iowa, 333, 106 N. W. 751, 6 L. R. A. (N. S.) 113. See, further, on this subject State v. Rasmussen, 7 Idaho, 1, 59 Pac. 933, 52 L. R. A. 78, 97 Am. St. Rep. 231.

The above case of State v. Rasmussen was, by writ of error, taken to the Supreme Court of the United States and in that case the Supreme Court, through Mr. Justice Brewer, said, in substance, that “the Idaho sheep quarantine act of March 13, 1899, authorizing the Governor, Avhen he has reason to believe that there is an epidemic infectious disease of sheep in localities outside of the state, to investigate the matter, and, if he finds that the disease exists, to make a proclamation declaring such localities infected, and prohibiting the introduction therefrom of sheep into the state, except under such restrictions as, after consultation Avith the state sheep inspector, he may declare proper, is Avithin the police poAver of the state, and is not in violation of the federal Constitution as a regulation of interstate commerce.” — R. Rasmussen v. State of Idaho, 181 U. S. 199, 21 Sup. Ct. 591, 15 L. Ed. 820.

While the legislation under discussion is not a local, but a general, laAv, many of its provisions can be in effect only in limited portions of the state at the same time, and the provisions of the law of which the appellee complains cannot apply to all stock in the state, or to all places in the state, but only to diseased or infected stock, or to diseased or infected places. The powers, therefore, conferred upon the board can only be exercised by them in the sections of the state which have been placed under quarantine. While there may exist some conflict among the authorities as to the constitutionality of such legislation, the great weight of authority unquestionably upholds it as coming within the scope of the police powers of the state, without the exercise of which, in the manner provided for in the statutes under consideration, the state would, in large measure, be helpless to effectuate the purpose for which it was designed. “Constitutions were made for practical purposes, and not for the exercise of critical gymnastics; they should be construed so as to carry out the intention of the makers, Avhich should be reasonable rather than absurd.” — State v. Thompson, 142 Ala. 98, 38 South. 619.

Certainly, under the decisions of the Supreme Court of Alabama which we have above quoted, as well • as upon reason and the great weight of authority, we must hold that the statutes under consideration are constitutional ; and that the court below erred in sustaining the demurrer to the affidavit, upon the ground that they were offensive to the Constitution.

It folloAvs, from what Ave have above said, that, in our opinion, the trial court erred in sustaining the demurrer to the affidavit, upon the ground that the acts referred to were repugnant to our Constitution, and that they are therefore void.

The judgment of the court beloAv is reversed, and the cause remanded.

Reversed and remanded.

On Application for Rehearing.

In the above opinion this court, accepting the appellee’s demurrer as broad enough to challenge the validity, on constitutional grounds, of each of the subdivisions of the present Code from 757 to 770, inclusive, held that none of said subdivisions were unconstitutional. The appellee, when he demurred, to the complaint, fixed the invalidity of the above statutes as the basis of his right to a discharge from the prosecution, and the question as fixed by him was the only question which we were authorized to review. — State v. Street, et al., 117 Ala. 203, 23 South. 807. On this application for a rehearing, appellee switches this discussion in large measure from a consideration of the above statutes to a discussion upon constitutional grounds, of the validity of an act entitled “An act to amend section 770 of the Code,” approved August 20, 1909 (see Pamphlet Acts Special Session 1909, p. 61), and of the validity of an act entitled “An act to amend an act to establish a State Live Stock Sanitary Board,” etc., approved August 26, 1909. See Pamphlet Acts Special Session 1909, p. 187.

It is evident that the above amendatory acts can in no way affect the validity of the above sections of the Code. If they are invalid, the Code provisions remain in the conditions they were in before the amendatory acts were adopted.

We undertook, in the above opinion, to call attention to the fact that the legislation under discussion comes within that class of legislation concerning Avhich courts exercise the broadest liberality. Quarantine regulations affect the state in its most vital spot — the health of its people, or, as in this case, the health of its live stock— and it is essential that, in construing statutes passed for the purpose of promoting such delicate and important subjects, great latitude should be allowed the Legislature in determining the character of such lavra, and how, when, and by Avhom, in their practical administration, they should be applied. — Blue v. Beach, 155 Ind. 121, 56 N. E. 89, 50 L. R. A. 64, 80 Am. St. Rep. 195; Union Bridge Co. v. U. S., 204 U. S. 364, 27 Sup. Ct. 367, 51 L. Ed. 523; St. Louis Merchants’ Bridge Terminal Co. v. U. S., 188 Fed. 191, 110 C. C. A. 63.

The mere fact that, under section 765 of the Code, the county commissioners of a county are authorized, when the work of cattle tick eradication is undertaken in a county, to supplement, out of the funds of the county, the fund provided by law for that purpose in no way effects the validity of the acts, or any one of the acts, under consideration. The provisions relative to county commissioners can be striken from the act, and the act still remain. — Royal Exchange, etc., v. City of Montgomery, Infra, 59 South. 508.

Neither are we able to assent to the proposition that section 765 of the Code violates any of the provisions of our Constitution, because it provides that the work of “cattle tick eradication * * * shall he taken up under the provisions of this act in any county or any part of a county, or any part of the state of Alabama, when the State Live Stoclc Sanitary Board may deem it best.” This section is mandatory in its terms. It provides that the law “shall” go into effect, and leaves it to the discretion of the board as to when it shall go into effect in a particular county, part of a eounty, or a particular part of the state. The contingency that the law “shall” go into effect in a particular county, or a particular part of a county, or a particular part of the state, at a particular time, is that the board “shall deem it best” that the work which the laAV requires to be done shall be done in such county, part of a county, or part of the state at that time. “The rule is familiar that a statute may be made to take effect on the determination of some fact or state of things on the part of the people, or a municipality, or other body of officers.” — 6 A. & E. Ency. Law, p. 1032; People v. Burr, 13 Cal. 358; Haney v. Barton County, 91 Ga. 770, 18 S. E. 28.

It is, of course, a matter of common knowledge that Texas fever- — a communicable and dangerous cattle disease — is prevalent in every county in Alabama, and that the cause of the disease is the cattle tick. Wherever the cattle tick is found, there Texas fever is found; and where there are no cattle ticks there is no Texas fever. Texas fever and cattle ticks go hand in hand; where one exists there the other, ex necessitati, also exists.

Scientists, having made the above discovery, busied themselves in ascertaining a method of destroying the tick, and finally discovered a method whereby this can be successfully and economically done. It takes time, labor, constant -watchfulness, and supervision by experts for this work to be accomplished. Each animal and each pasture requires attention and supervision; and means have to be provided for the cleaning of each animal in a herd, until Texas fever has been eliminated from that herd, and the tick and the cause of it removed from the pasture or inclosure occupied by the herd. It is therefore impossible for the work of cattle tick eradication (and by that means the elimination of Texas fever from the state) to be undertaken in all parts of the state, or in all of the counties of the state, at the same time. Section 760 of the Code requires the state veterinarian to quarantine (and by that means cut off as a source of infection) any “stall, * * city, township, county or any part of the state, when he shall determine that live stock in such places are * * * infested or infected with the carrier or carriers of a contagious, infectious or communicable disease.” Undoubtedly the cattle tick is a carrier of a contagious, infectious, or communicable disease; and cattle and places infested with cattle ticks are covered, therefore, by the express provisions of the above section. Section 763 of the Code requires the owners, etc., of live stock or places quarantined under the provisions of said section 760 to cleanse and disinfect such live stock and places under the direction of the Live Stock Sanitary Board.

As, however, the eradication of the tick, and by it the stamping out of Texas fever, cannot be done in all parts of the state at one time, we think that the Legislature wisely and validly declared that the work of the eradication of the tick shall be taken up “in any county, or any part of a county, or any part of the state, when the Live Stock Sanitary Board shall deem best.” As the board is placed in charge of the work all over the state, and as it is an impossibility for this work, under the supervision of the board, to be done, under present conditions, all over the state at one time, it was entirely competent for the Legislature to leave it to the board to say when, in their administration of the law, it was feasible for the work to be done in a particular county or section.— U. S. v. Grimaud, 220 U. S. 506, 31 Sup. Ct. 480, 55 L. Ed. 563; 6 A. & E. Ency. Law, 1029 (f), and authorities cited; Turner v. City of Detroit, 104 Mich. 326, 62 N. W. 405; People v. Brooks, 101 Mich. 98, 99 N. W. 444; State v. Rasmussen, 7 Idaho, 1, 59 Pac. 933, 52 L. R. A. 78, 97 Am. St. Rep. 234; R. Rasmussen v. State, 181 U. S. 199, 21 Sup. Ct. 594, 45 L. Ed. 820; Ingram v. State, 39 Ala. 247, 84 Am. Dec. 782; Locke’s Appeal, 72 Pa. 491, 13 Am. Rep. 716; Isenhour v. State, 157 Ind. 517, 62 N. E. 40, 87 Am. St. Rep. 228; Dunn v. Wilcox County, 85 Ala. 144, 4 South. 661; Whaley v. State, 168 Ala. 152, 52 South. 941, 30 L. R. A. (N. S.) 499.

The case of Dunn v. Wilcox County, supra, it seems to us, conclusively settles the question as to the validity of the act approved August 26, 1909 (Pamphlet Acts Special Session 1909, p. 187), above referred to by us, against the contentions of appellee.

The application of appellee for a rehearing is overruled.

Application overruled.