29 Mont. 45 | Mont. | 1903
delivered the opinion of the court.
This action was commenced by the plaintiff, Bair, to recover damages from the defendant for injury to personal property. The complaint alleges that in August, 1899, the plaintiff was
The defendant admitted in his answer that he was deputy sheep inspector, and that as such he dipped the sheep- in question on August 20, 1899, and denied the; other material allegations of the complaint. By way of an affirmative defense the defendant alleged that the dipping of the sheep in question was done by him under and by virtue of a quarantine proclamation issued by the governor of Montana on April 15, 1899. The cause was tried to- a jury, which returned a verdict in favor of the plaintiff for $1,055.50, and from the judgment entered for the amount of the verdict and costs, and from an order denying the defendant a new trial, these appeals are taken.
In the appellant’s brief only two- propositions are argued: (1) Does the complaint state a cause of action? And (2) did' the court err in excluding a, certain offer of proof made by the defendant and in sustaining objections, to- certain questions asked the defendant?
*49 “Sec. 3034. Whenever the governor, by proclamation, quarantines for inspection as provided in the next section any sheep brought into' Montana, the deputy inspector of the county in which such sheep may come, must immediately inspect the same, and if lie finds that they are infected with scab, or any other infectious disease, he must cause the same to- be held within a certain limit or place in¡ his said county, to be defined by him, until such disease has been eradicated, as provided in the next preceding section.
“Sec. 3035. Whenever the governor has' reason to .believe that any disease mentioned by this'article has' become epidemic in certain localities in any other state or territory, or that conditions exist that render sheep likely to convey disease, he must thereupon by proclamation, designate such localities and prohibit the importation from them of any sheep' into' this state except under such restrictions as he, after -consultation with the veterinary surgeon, may deem proper. * "
Acting under the authority of these sections, the governor of Montana, on April 15, 1899, issued a proclamation, the pertinent portions of which read as follows: “Whereas, I have reason to believe that conditions exist which render the class of sheep herein designated rams, or bucks, or stock sheep-, when brought into this state, liable to convey the disease known as 'scab/ it is hereby ordered that all rams-, or bucks, or stock sheep-, imported into the state of Montana, from any other state- or territory of the United States or foreign countries- whatsoever, must when shipped be loaded at point of starting into- properly disinfected car or cars, and shipped in such properly disinfected car or cars into this state, where, upon arrival at the state line of Montana, or the closest available point thereto where the sheep' are to- be unloaded to be driven to destination in the state, and before being turned upon the public domain or upon private premises, and all rams, bucks-, or stock sheep- driven into or through any portion of this state from any adjoining state or country, avoiding all "quarantine yards and areas, shall be held at such point or points as may be hereinafter designated and
Under the foregoing provisions it was made the duty of the governor to determine what sheep^ not themselves diseased, should be quarantined, and to> prescribe the quarantine regulations. In doing so he doubtless acted in a quasi judicial capacity, and, having once determined that fact, and having pre-' scribed such regulations in his proclamation, the only duty devolving upon the defendant was to carry such regulations into effect.
But it is contended that under the provisions of the governor’s proclamation — “said sheep' shall be dipped in some recognized and reliable dip* known to- be efficient in the cure of scab” —the defendant was called upon to exercise his judgment and discretion in determining the material to be used and the method of its. application, and in this he acted in a, quasi judicial capacity. -With this contention we cánnot agree. The law contemplates that only men who, by their skill and experience, are competent, shall be appointed such deputies, and invested with the duty of carrying into execution this police power of the state. The mere fact that such officers are called upon to: exercise some discretion or judgment in selecting materials to- be used and the manner of their use does not change the character of their acts from; ministerial to judicial or quasi judicial ones. E'xpterience teaches that, few, if any, ministerial officers are not called- upon to1 exercise some judgment or1 discretion in the performance of their official duties. But, if the contention of the appellant be sustained, the distinction between ministerial and quasi judicial acts is practically abolished.
As distinguishing between acts quasi judicial and acts ministerial in their character, the following 'definitions Ave think correctly state the laA?: “Quasi judicial functions are .those
“Where a power rests in judgment or discretion, so that it is of a judicial nature or character, but does, not involve the exercise of the functions of a judge, or is conferred upon an officer other than a judicial officer, the expression used is generally 'quasi judicial.’ * * * The officer may not in strictness be a judge; still, if his powers, are discretionary, to be exerted or withheld according to his own view of what is necessary and proper, they are in their nature judicial.” (Throop on Public Officers, Secs. 533, 534.)
“A ministerial act may perhaps be defined to be one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his oavia judgment upon the propriety of the act done.” (Throop on Public Officers, Sec. 537; Flournoy v. City of Jeffersonville, 17 Inch 169, 79 Am. Dec. 468; Pennington x. Streight, 54 Ind. 376.)
In the same line, a ministerial act has also been defined as an act performed in a prescribed manner, in obedience to the laAA" or the mandate of legal authority, AvithoxAt regard to, or the exercise of, the judgment of the individual upon the propriety of the acts being done.” (Mechem on Public Officers, Sec. 657.)
An act is not necessarily taken out of the class styled “ministerial” because the officer performing it is nevertheless Arested Avitli a discretion respecting the means or the method to be employed. Such is not the judgment or discretion AA’hicli is an essential element of judicial action. (McCord v. High, 24
In disposing of the contention the court said: “It is claimed that the defendant, in determining to¡ remove this boat, and in the removal of it, had a judicial discretion to> exercise; and hence that he is not liable, in a civil action, for the manner in which he fexercised this discretion. I am unable to. see in what sense the defendant, as to this transaction, acted judicially. The law made it his duty to put this canal in repair, and it was not left to' his discretion to' determine whether be would discharge that duty or not. The law made it an imperative duty, and, if he had neglected to perform it, he would have been liable civilly
The question involved in this controversy is not whether the policy adopted was wise, but whether a wrong was done in the details of its execution. Wc are of the opinion- that in the discharge of his duty the defendant acted in a ministerial capacity only.
Consideration of tbe offer of proof and of tbe questions referred to may be bad together, as they are treated as one error by tbe appellant in bis brief.
The evident purpose of tbe defendant was to show tbat be bad used tbe same material, mixed with water in tbe same proportion, in dipping other sheepi as in tbe case of tbe dipping of the sheep in question, and tbat no- serio-us or damaging results bad followed. If the offer of proof bad fairly presented this-matter, it would have been competent. It is contended by tbe respondent tbat tbe offer is- fatally defective in many respects; that tbe offer must show tbat the dipping’was done under like circumstances-, with like conditions prevailing as to the character of tbe sbeep, tbe conditions o-f tbe weather, and numerous other conditions to- which it is- not now necessary to- refer.
In our judgment, the offer was fatally defective in one particular at least. Assuming tbat tbe questions asked and tbe offer made fairly show that the other sheep' were dipped! in the same material, mixed in water in the same proportion, under like- circumstances and surroundings, still the offer only seeks to- show' that in tire other instances fatal results- did- not follow. In submitting this- offer counsel, in effect, stated to tbe court tbat they desired to- make this proof, and none other, with reference to that- particular subject. Tbe offer is made as a- whole-. It is not for tbe court to separate tbe admissible from the nonadmis-sible, and admit the one and rej ect tbe. other. If the offer as' a whole contains objectionable matter, no error can be predicated upon the ruling of the court- in excluding it. (Yoder v. Reynolds, 28 Mont. 183, 12 Pac. 417; Farleighv. Kelley, 28 Mont. 421, 72 Pac. 756.) The defect in tbe offer becomes very appar
The judgment and order denying defendant a, new trial are affirmed.
Affirmed.