Houston v. State

Feb 8, 1898
Reporters:
, , ,
Before:
Cassoday
Cassoday, C. J.

It is not specifically alleged that the plaintiff accepted the two thirds of $1,710, at which the ■cattle so destroyed were appraised; but such acceptance, ■under the circumstances alleged, may be fairly inferred, and :in fact seemed to be conceded on the argument. The view we have taken of the case, however, makes it unimportant.

It is fairly established, by adjudications too numerous to mention, that a state may, in the proper exercise of its police power, authorize the destruction of such property as has become a public nuisance, or has an unlawful existence, or is noxious to the public health, public morals, or public safety, without compensation, notwithstanding the prohibition in sec. 1, ai’t. XIY, of the amendments to the constitution of the United States. Bittenhaus v. Johnston, 92 Wis. 596-598; Mugler v. Kansas, 123 U. S. 623; Kidd v. Pearson, 128 U. S. 1; Lawton v. Steele, 119 N. Y. 226; S. C., affirmed, 152 U. S. 133. The question of such power, however, does not here .arise. The demurrer admits the facts alleged in the complaint. The complaint alleges that none of the cattle destroyed were affected with any'disease at the time they were •condemned,- but were each and all entirely free from any ■disease, and healthy, strong, and vigorous animals. The statute only authorized the destruction of animals in case they were affected with some “ contagious or infectious disease of malignant or very fatal nature.” S. & B. Ann. Stats, sec. 1492a. Unless the animals were so diseased in fact, their ■.slaughter was without authority of law, and hence tortiousi Pearson v. Zehr, 138 Ill. 48; Miller v. Horton, 152 Mass. 540.

The question recurs whether this suit can be maintained .•against the state for the injury sustained for such alleged *487unlawful destruction. Prior to the eleventh amendment to the constitution of the United States, it was held, in effect, that a state might be sued in the supreme court of the United States by an individual citizen of another state. Chisholm v. Georgia, 2 Dali. 419. But since that amendment, it is believed, the courts have uniformly held that no state could be sued in any court without its express consent Louisiana v. Jumel, 107 U. S. 711; Chicago, M. & St. P. R. Co. v. State, 53 Whs. 509. The same is true of the United States. Schillinger v. U. S. 155 U. S. 163; U. S. v. North Carolina, 136 U. S. 211; State v. Hill, 54 Ala. 67; Clark v. State, 7 Coldw. 306; Railroad Co. v. Alabama, 101 U. S. 832. Our constitution expressly provides that “ the legislature shall direct by law in what manner and in what courts suits may be brought against the state.” Const. Wis. art. -IY, sec. 27. In pursuance of that provision, the legislature at an early day provided that “ it shall be competent for .any person, deeming himself aggrieved by the refusal of the legislature to allow any just claim against the state, to commence an action against the state, by filing a complaint, setting forth fully and particularly the nature of such claim, with the clerk of the supreme court, either in term time or in vacation.” R. S. 1878, sec. 3200. This section only relates to claims which, if allowed, render the state a debtor to the claimant. Chicago, M. & St. P. R. Co. v. State, 53 Wis. 509; Clodfelter v. State, 86 N. C. 51; State v. Hill, supra. This statute does not include a demand based upon the unlawful and tortious acts of officers or agents of the state. Hill v. U. S. 149 U. S. 593. Thus, in Massachusetts it is held that a similar statute did “ not extend to a claim for damages resulting from the misfeasance or negligence of its officers and agents in performing their duties.” Murdock Parlor Grate Co. v. Comm. 152 Mass. 28. The same construction of the word “ claim ” has been applied by this court to demands against municipalities. Kelley v. Madi *488son, 43 Wis. 638; Bradley v. Eau Claire, 56 Wis. 168; Jung v. Stevens Point, 74 Wis. 547; Sommers v. Marshfield, 90 Wis. 59. The law is well established that neither the state nor the United States is answerable in damages to an individual for an injury resulting from the alleged misconduct or negligence or tortious acts of its officers or agents. Gibbons v. U. S. 8 Wall. 269; Langford v. U. S. 101 U. S. 341; German Bank of Memphis v. U. S. 148 U. S. 573; Clark v. State, 7 Coldw. 306.

' It follows from what has been said that this action for the alleged unlawful and tortious action of the officers and agents of the state cannot be maintained against the state;, for the simple reason that the legislature has never authorized an action in this court for such misconduct.

By the Gowrt.— The demurrer is sustained, with leave to amend within twenty days, and in case of default the com. plaint will be dismissed.