149 P. 496 | Mont. | 1915
delivered the opinion of the court.
In March, 1914, H. C. B. Colvill brought to the city of Missoula certain apples owned by him which were boxed and intended for shipment to points within and without this state and to be sold in the open market. The fruit was seized and destroyed by Edwin Fox, and this action was instituted to recover
The validity of the statutes for the regulation and protection of the horticultural industry and of certain regulations of the board is assailed upon these grounds:
(1) They are not valid police regulations.
(2) They lodge in the same officer judicial and executive powers.
(3) They permit private property to be taken for private use, and for public use without compensation.
(4) Under their provisions the owner is deprived of his property without due process of law and denied the equal protection of the laws.
1. It cannot be contended successfully that the .protection of
In Cooley’s Constitutional Limitations, seventh edition, 829, the author announces the same doctrine as follows: “The police of a state, in a comprehensive sense, embraces its whole system of internal regulation, by which the state seeks not only to preserve the public order and to prevent offenses against the state, but also to establish for the intercourse of citizens with citizens those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own so far as is reasonably consistent with the like enjoyment of rights by others.”
The definition of Chief Justice Shaw has become a legal classic. In Commonwealth v. Alger, 7 Cush. (Mass.) 53, he said: “We think it is the settled principle, growing out of the nature of well-ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it * * * shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. All property in this commonwealth, * * * is * * * held subject to those general regulations, which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such' reasonable restraints and regulations established by law as the legislature, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient. This is very different from the right of eminent domain — the right of a government to take and appropriate private property * * * whenever the public exigency requires it; which can be done only on condition of providing a reasonable compensation therefor. The power we allude to is rather the police power, the power vested in the legislature by the Constitution to make, ordain and establish all manner of
In Bacon v. Walker, 204 U. S. 311, 51 L. Ed. 499, 27 Sup. Ct. Rep. 289, the court, after reviewing many authorities dealing with the police power, said: “That power is not confined, as we have said, to the suppression of what is offensive, disorderly or unsanitary. It extends to so dealing with the conditions which exist in the state as to bring out of them the greatest welfare of its people.”
In Los Angeles County v. Spencer, 126 Cal. 670, 77 Am. St. Rep. 217, 59 Pac. 202, the court had under consideration the question of the validity of a statute to promote and protect the horticultural interests of California in terms somewhat similar to our own, and upon the subject said: “It is known that the existence of the fruit industry in the state depends upon the suppression and destruction of the pests mentioned in the statute. The Act in question is, therefore, a proper exercise of the police power which the legislature has, under section 1 of Article XIX of the Constitution, to subject private property to such reasonable restraints and burdens as will secure and maintain the general welfare and prosperity of the state.”
In State v. Main, 69 Conn. 123, 61 Am. St. Rep. 30, 36 L. R. A. 623, 37 Atl. 80, the constitutionality of a statute which provided for the destruction of peach trees affected with the “yellows,” was upheld, and upon the power of the state to enact and enforce such legislation the court said: “Such a disease it was proper for the General Assembly, in the exercise of its police power, to endeavor to suppress, even by the destruction of the trees attacked by it, if there was a reasonable apprehension of substantial danger, from allowing them to live, to those who might eat their fruit, or to other peach orchards.”
The statute and board regulations are attacked also upon the
It is no objection to the enforcement of a police regulation that the thing proscribed may be put to profitable use without injury or danger to anyone. If by the particular use to which it is sought to be applied the public interests are jeopardized, such use may be regulated or prohibited altogether. In principle, the decisions of the supreme court of the United States in the oleomargarine eases are conclusive upon this question. (Powell v. Pennsylvania, 127 U. S. 678, 32 L. Ed. 253, 8 Sup. Ct. Rep. 992, 1257; Plumley v. Massachusetts, 155 U. S. 461, 39 L. Ed. 223, 15 Sup. Ct. Rep. 154; Capital City Dairy Co. v. Ohio, 183 U. S. 238, 46 L. Ed. 171, 22 Sup. Ct. Rep. 120.)
It was plaintiff’s own act in seeking to make use of his diseased fruit for a purpose inimical to the public welfare that brought down upon him the penalty of the statute. Under such circumstances he is not in a position to insist that he ought to have been permitted to use it for a purpose other than the one to which he indicated his intention to devote it.
2. The contention that the legislature attempts to lodge in the
3. It may be conceded at once that private property cannot
• In the destruction of private dwellings to stop the spread of a fire, or of animals affected with a contagious disease to protect the livestock industry, private interests are served as an incident to the public benefit reaped, but the dwellings in the one instance, or the animals in the other, are not subjected to the private use of the more fortunate owners who are saved from the effects of the conflagration or plague. For the stronger reason the constitutional guaranty of section 14, Article III, is not available to plaintiff. The fruit in question was destroyed to serve a public purpose, but not to be devoted to a public one. {State v. Board of Commrs. of Deer Lodge County, 19 Mont. 582, 49 Pac. 147.) That provision of the Constitution refers to the authority exercised by the state or through some designated
In Livingston v. Ellis County, 30 Tex. Civ. App. 19, 68 S. W. 723, the court considered a like contention raised with reference to section 17, Article I of the Texas Constitution, similar in its provisions to section 14, Article III, above, and said: “There is an obligation upon every property owner to so use his own as not to interfere with the general welfare of the community in which he lives. The enforcement of this duty pertains to the police power of the state so far as the exercise of that power affects private property. Whatever restraints the legislature imposes upon the use and enjoyment of property within the reason and principle of this duty, the owner must submit to, and for any inconvenience or loss which he sustains thereby he is without remedy. The enforcement of this duty is a regulation and the exercise of the police power of the state. Article I, section 17, of the state Constitution has reference to the exerise of the right of eminent domain. It has reference to the taking and appropriation of property for public use. It has no application to the regulation and restriction of the use and enjoyment of property by its owner for the public welfare, but refers to the taking of property from the owner and its appropriation to some particular use for the public welfare. The Articles under consideration provide a wholesome regulation to prevent the spread of a dangerous disease. It'is such a regulation as the state has the right, under its police powers, to make, and is not prohibited by Article I, section 17, of the state Constitution.” (See, also, Cooley’s Constitutional Limitations, 7th ed., 830.)
4. These statutory and board regulations do not operate to deprive the owner of his property without due process of law or deny to him the equal protection of the law. By “due
In the present action every opportunity might be had to determine whether plaintiff’s fruit was affected, and, if it was not, his right to recover could not be questioned. Since, however, he admits by his demurrer the diseased condition of his apples, as charged in the answer, there is not any question left for judicial or other determination. He cannot stand upon his abstract right to handle diseased fruit and have the same transported from place to place, with the concomitant right to spread the disease among fruit and fruit trees generally.
Nor is it an objection to the validity of a police regulation that it does not provide for a hearing or for notice to the
That no provision is made for compensating the owner whose property is destroyed is likewise not a valid objection to the
Appellant is in error in assuming that by the enforcement
We find no error in the record, and the judgment is therefore affirmed.
Affirmed.