163 Ga. 618 | Ga. | 1927
(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,
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,
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
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
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
Applying the above principles, the court did not err in sustaining the demurrer to the petition of the plaintiffs.
Judgment affirmed.