#### Edward E. Williams, Appellant, *v.*Mervin S. Rivenburg, Respondent.

Fourth Department,

May 3, 1911.

Appeal from nonsuit — evidence taken in plaintiff’s favor — public health — sale of calves under four weeks of age— conversion by agent of Agricultural Commissioner — when calves under four weeks of age are “ exposed ” for sale — constitutional law — police power— destruction of property dangerous to public health.

■Where a plaintiff is nonsuited he is entitled upon appeal to the interpretation of the evidence most favorable to him.

Section 106 of the Agricultural Law, prohibiting the sale or exposure for sale of calves less than four weeks old, and authorizing the seizure of calves under that age, although an invasion of the property rights of the owner, is in the interest of public health- and a justifiable police regulation. But the exercise of the right of seizure must be within the letter of the law; no discretion is permitted.

An agent' of the State Commissioner of Agriculture has no authority to seize a calf which is actually over four weeks of age merely because it is immature, has flabby and stringy flesh, if it is not diseased so as to be deleterious to the health of persons eating it. Hence, on the seizure of such calf, an action for a conversion lies against the agent of the 'Commissioner of Agriculture.

Where calves under the age of four weeks which were originally, shipped with then.- dams to a stockyard were separated from then1 mothers and herded in a pen with other calves intended for sale they were “apparently exposed for sale” within the meaning of section 106 of the Agricultural Law, and the agent of the Commissioner of Agriculture was justified in seizing and destroying them, although they were placed in *94the pen without the knowledge of the owner and he told the agent that they were to he sold with then dams.

Although the calves were herded in the pen on Sunday, which was not a sales day, the owner cannot claim that they were not exposed for sale when the evidence shows that, although sales on Sunday were prohibited, sales were in fact customarily made on that day.

The agent of the Commissioner of Agriculture in seizing and destroying-said calves is not liable in an action for conversion where there is no allegation or claim that he acted maliciously or in bad faith.

Laws- enacted under the police power to abate nuisances or to benefit the health of the public which may result in the destruction of private property and which do not provide for any payment therefor to the owner are not in violation of the constitutional inhibition against taking private property for public use without compensation.

But before a public officer can justify an invasion of private property the legislative authority must be clear and unequivocal, and he must keep strictly within the power conferred.

McLeuStast, P. J., dissented, with opinion.

Appeal by the plaintiff, Edward E. Williams, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Lewis on the 28th day of April, 1910, for costs upon a nonsuit granted by the court after a trial at the Lewis Trial Term, and also from an order entered on the 18 th day of April, 1910, denying the plaintiff’s motion for a new trial made upon the minutes.

*Frank Bowman,*for the appellant.

*A. L. Kellogg,*for the respondent.

Spring, J.:

The action is in conversion to recover damages of the defendant by reason of the killing of fiye calves owned by the plaintiff, and involves the construction of section 106 of the Agricultural Law (Consol. Laws, chap. 1). The defendant is the agent of the State Commissioner of Agriculture, representing that official in the city of New York, and the acts complamed of were done by him in pursuance to the general instructions given tó him by the head of the department.

The complaint alleges two causes of action, and they will be considered in their order.

1. The plaintiff, a cattle shipper, purchased at Rome, N. Y., and shipped by rail to the Union Stockyards, New York city, *95on the 27⁄8 day of April, 1908, one calf, in company with other calves, all consigned to him. Upon then- arrival at the point of destination, on the twenty-ninth of April, the calves were placed in a pen in the sto'ckyards in which calves were kept for sale. On April twenty-ninth the defendant, in the performance of his duties as an agent of the Commissioner of Agriculture, examined the calves in the stockyards, and seized seven on the ground that they were each under four weeks of age, and they were subsequently taken to an abattoir and killed. There were other inspectors with the defendant at the time, and a State veterinary surgeon of wide experience also examined these calves at the stockyards, and again after they were killed, and he testified the plaintiff’s calf was under four weeks of age, and his testimony was corroborated by all the inspectors. The farmer who raised the calf testified that he was born March twenty-eighth, more than four weeks before he was seized by the defendant.

Section 106 of the Agricultural Law, so far.as pertinent to this alleged cause of action, in prohibiting the bringing into a city, town or village of a calf for the purpose of selling the same, provides: “Unless it is in a good healthy condition, and no person or persons shall bring any such calf or carcass of the same or any part thereof except the hide into any city, town or village for the purpose of selling, offering or exposing the same for sale, unless the calf is four weeks of age.” And, further, the act provides: “ Any person or persons duly authorized by the Commissioner of Agriculture may examine any calf or veal offered or exposed for sale or kept with any stock of goods apparently exposed for sale and if such calf is under four weeks of age, or the veal is from a calf killed under four weeks of age, or from a calf in an unhealthy condition when killed, he may seize the same and cause it to he destroyed and disposed of in such manner as to make it impossible to he thereafter used for food.” The defendant claims that he was authorized to take and kill the calf by the Commissioner of Agriculture, and his authority to represent that officer is not impugned.

In this case there was a question of fact as to the age of the calf, and as the plaintiff was nonsuited he is entitled on this *96' appeal to the interpretation of the evidence most favorable to him. We must start, therefore, with the assumption that the éalf was over four weeks of -age at the time of its seizure by the defendant. The appearances indicated that it was less than four weeks old. It was undersized. One hip was marked with shears so that in the event it was appropriated by the State authorities it could be identified and traeed to the farmer of whom it was purchased. The flesh was flabby and immature, and if we were considering the weight of the evidence we might well be justified in concluding that the calf was under four weeks old in spite of the explicit testimony of the farmer who owned its dam at the time the calf was born.

The statute, however, fixes arbitrarily the minimum age at which a healthy calf may be sold or exposed for sale at four weeks. ' One calf only three weeks old may be well nourished and- fattened and of good size, while another of six weeks of age may be scantily fed, poorly nurtured, undersized and scrawny. The larger one may be seized in pursuance of the authority given by the statute in question, while the smaller one may be exempt from seizure. It is often necessary in promulgating laws for the benefit of the public health, or to con-, serve any other utilitarian purpose, tó establish inflexible standards-. Milk containing more than eighty-eight percentum of water or fluids comes within the arbitrary'definition of adulterated milk. Milk containing eighty-nine percentum of water may be more wholesome in a particular batch than that of another quantity one percentum below the standard. One batch is within the condemnation of the statute, the other not. The fixing of the inflexible standard is the- result of tests and examinations extensively made and is adopted as a fairly just rule for milk generally, although in individual cases the enforcement of the law may occasionally operate unjustly.

No compensation is provided for to the owner of the calf seized, and the seizure is an invasion of his property rights and can only be supported because the enactment is in the interest of public health and a justifiable police regulation. The exercise of the right must, therefore, be within the letter of the statute. There is no discretion permitted. The inflexible requirement is that the calf offered for sale must be four *97weeks of age, and if under that limit it may he seized. There is no authority to determine the age from the appearance of the animal. The statute does not provide if it is actually or apparently under four weeks of age that it may be seized, hut the language is precise, explicit *“*under four weeks of age/’ and the official who seizes a calf in pursuance of the authority of this statute must he certain that the calf comes within its condemnation. The examination made, the appearance of the calf and other circumstances may he competent in order to fortify the evidence of age, and if the weight of evidence was reviewable on this appeal it might not be difficult to decide that the preponderance was with the defendant on that subject.

I think the defendant was not within the compass of his authority in seizing this calf, provided it was over four weeks of age, as we must assume. The Legislature might have vested the authority to seize if the animal is actually or apparently under four weeks of age, and in that event the agent of the Commissioner of Agriculture acting in good faith might be exonerated of liability even though the calf exceeded the age limit. The power to prescribe when private property may he taken or destroyed without compensation because it is deleterious to public health is lodged with the Legislature and the courts cannot enlarge the scope of that authority. ■

There is no claim that the calf was unhealthy. It was immature and the flesh flabby and stringy, hut it was not diseased. The “good healthy condition” referred to in the statute is a condition apart from that of age and signifies disease or some defect rendering the meat deleterious to the health of persons eating it. The calf was not taken and the case was not defended on that ground, hut because the animal was under four weeks of age.

I think the nonsuit as to the first cause of action was error.

2. The second cause of action ■ grows out of the seizure of four calves by the defendant in the Union Stockyards and which were indisputably under four weeks of age. On the 30th of January, 1909, the plaintiff at Ldwville, Lewis county, con*98signed to himself at the Union Stockyards in New York city eighty-five or ninety calves and four fresh milch cows, and with each cow was its calf and they were, from ten days to two weeks old. When they arrived at the stockyards all the calves,- including these four, were placed in a pen together and where calves were to be sold and exposed for sale. They arrived on Sunday and on that day the defendant, with other agents, examined 'a large number of calves and, among others, seized these four of the plaintiff’s and they were subsequently carted to the slaughter house and killed. Section 106 of the Agricultural Law1 contains this clause: *‘e*Any person or persons exposing for sale, selling or shipping any calf or carcass of the same will he presumed to he so exposing, selling or shipping the said calf or carcass of the same for. food.”' The shipment of these calves and herding them with a large number which were to he sold for food established the presumption that these four were to-he exposed for sale for a like purpose. The statute empowering; the agent of the Commissioner of Agriculture provides that he may examine any calf offered for sale “or kept with any stock of goods apparently exposed for sale;” and if the calf was under four weeks of. age may seize and cause it to he destroyed. The. defendant when he found these.four immature calves obviously under four weeks of age collected with a large number in a sales pen, was called upon to take, prompt action, otherwise they might .be sold with the others. As they were kept with a stock of calyes “ *apparently*exposed for sale,” he was within the strict letter of the statute in seizing them.as he did.

The plaintiff seeks to find shelter in the clause of the statute which reads that “ any person or persons shipping any calf for the purpose of being. raised, if the said calf is under four weeks of age, shall ship it in a crate, unless said calf is accompanied' by its dam. ” This clause relates to the shipment,' and does not apply where the dam and calves after having reached the • shipping destination are separated and the calves are put in with a large number of others which are to be sold for food. The plaintiff was not present when the separation was made. The defendant, however, was in the line of his duty to. prevent the sale of the calves under the prescribed age, and he was not called upon to ascertain the *99motives which induced the collection of these calves in the sales pen, or whether they were placed there by the authority of the plaintiff, The agent was confronted with a condition requiring the exercise of his authority, and he was warranted from what he saw in seizing these animals for destruction. That evening the plaintiff came to the stockyards and after informing the agent that the calves were to be sold with their dams, importuned him to let them go to their mothers. The defendant did not see fit to rely upon the statements of the plaintiff to overcome. the presumption arising from the herding of these calves in a pen- where calves for sale were accustomed to be gathered, as the defendant knew. In this determination he exercised his discretion upon the facts and circumstances as they were presented to him and which justified the course he pursued.

Sunday was not sales day, and the plaintiff claims for that reason the calves were not exposed for sale. The evidence shows that while the stockyards aro prohibited from being open for sales-on that day, sales in fact were made on Sunday to butchers and others known' to the men in charge of the stockyards. The defendant was not obliged to- remain there until after midnight in order to keep track of these calves. Long experience in the examination of calves and other animals at these stockyards made him cognizant of the practices prevailing and the necessity for prompt decision and action in order to prevent the sale of -animals within the condemnation of the law.

I think the court was right in granting the nonsuit as to this cause of action.

. 3. There is no allegation in the complaint and no claim that the defendant in seizing these calves to be destroyed acted maliciously or in bad faith. He was endeavoring to perform his official duties honestly and'fairly as he understood them. The complaint is an ordinary action hi conversion, charging that the defendant *“*wrongfully and unlawfully and without any right or authority seized ” and converted the said property; and in the second cause of action the damage claimed is to the milch cows which were alleged to be of less ■ value because the calves, their offspring, had been taken from them. *100In so far as the seizure by tbe defendant was within the letter of the statute he is not pefsonally liable to an action for damages. Laws enacted in pursuance of police power to abate nuisances or to benefit the health of the public which may result in the destruction of private property and which do not provide for any payment therefor to the owner are not. vio-lative of the constitutional inhibition against taking private property for *a*public use without compensation. *(Health Department*v. *Rector, etc.,*145 N. Y. 32, 43; *Mugler*v. *Kansas,*123 U. S. 623; *Lawton*v. *Steele,*119 N. Y. 226.)

The abatement of a nuisance, or its regulation, is within the scope of legislative authority, and we would not expect the act in terms to authorize the annihilation of property. In effectuating the primary purpose of the power conferred to get rid of the.nuisance or offense against public health,private property may be incidentally destroyed of its value impaired, and yét it is not an appropriation in the sense of infringing upon the constitutional guaranty assuring immunity to the owner of property against its taking for a public use. Before an officer can justify any such invasion of private-property the legislative authority must be clear and unequivocal, and he must keep strictly within the power conferred. *(People ex rel. Copcutt*v. *Board of Health,*140 N. Y. 1; *Underwood*v. *Green,*42 id. 140; *Miller v. Horton,*152 Mass. 540; *Litchfield*v. *Bond,*186 N. Y. 66, 74; *Lowe*v. *Conroy,*120 Wis. 151.)

In the first case cited, the board of health of the city of Yonkers passed an ordinance declaring certain dams within the municipality nuisances and directing their abatement. Their authority was challenged and it developed in fact that the dams were not'nuisances, and the board’s actions were reviewed by certiorari. The court in considering the finality of the determination of the board used this expressive language (at p. 8): “It may be'said that if the determination of a board of health as to a nuisance be not final and conclusive, then the members of the board, and all persons acting under their authority in .abating the alleged nuisance, act at their peril; and so they do, and no other view of the law Would give adequate protection to private rights. They should not destroy property as a nuisance-unless they know it to be such, and if *101there he doubt whether it he a nuisance or not the hoard should proceed by action to restrain or abate the nuisance, and thus have the protection of a judgment for what it may do.”

In the State of Massachusetts there was a statute in force authorizing’ the summary killing of an animal afflicted with the glanders or farcy, and there was no provision for compen- ' cation to the owner. The commissioners- on contagious dis eases of annuals examined, or caused to he examined, a horse owned by the plaintiff and decided the animal was afflicted with this contagious disease, condemned it and formally recited the facts in a written notice to the hoard of health of the village where the owner of the horse lived, and directed the owner *“*to cause it to he killed forthwith,” which was done. Subsequent investigation disclosed that the horse was not afflicted with the glanders and the members of the board were held' individually liable for the value of the horse killed. *(Miller v. Horton,*152 Mass. 540, *supra.)*

There is a wide divergence in the authorities of the various State jurisdictions on this question, many holding that the officials are not liable individually or in their official capacity for errors of judgment of the kind stated. The weight of authority, however, seems to be the other way. I, therefore, think that in directing’ the killing of the calf, which the evidence most favorably viewed for the plaintiff shows was over four weeks of age, the defendant exceeded his authority and is individually liable for the value thereof, and the nonsuit was error.

The judgment and order should be reversed.

All concurred, except McLennan, P. J., who dissented, in an opinion.

McLennnan, P. J.

(dissenting):

I agree with the majority of the court in-holding that a non-suit was properly granted as to the second cause of action alleged in the complaint for the reasons stated in the opinion of Justice Spring, but I dissent from the holding that the trial court improperly granted a nonsuit as to the first alleged cause of action, because, in my opinion, the defendant incurred no individual liability for the acts done by him in the *102premises, and so notwithstanding upon the evidence it was a question of fact as to whether' the calf seized by defendant and killed was more than four weeks of age. The. defendant at the time he seized such calf was not an officer of the State. H© was the mere agent of the Commissioner of Agriculture and whatever he did in the premises was' done under the direction and under instructions given him By the Commissioner. Under such circumstances I think the defendant was not personally liable for such acts, hut that if the plaintiff had a cause of action because of the alleged illegal seizure of his calf, the action should have been brqught directly against the Commissioner of Agriculture or in the Court of Claims against the State. *(Wright*v. *Eldred,*46 Hun, 12; affd., 137 N. Y. 556; *Shaver*v. *Eldred,*114 id. 236.) In the *Wright Case (supra)*the action was brought to recover for injury to the plaintiff’s premises, alleged to have been caused by the act of the defendant- in setting water back onto them. The defendant attempted to justify his action by producing a letter written by the Assistant Superintendent and approved by the Superintendent of Public Works, authorizing him to do the acts complained of, and it was held that the defendant was not personally liable for the acts thus done by him. Mr. Justice Bkadley, in writing the opinion of the General Term, at the bottom of page *17,*summed up the whole matter as follows: “ The defendant did no more, and he may be deemed to have legitimately acted under the authority and direction of the Superintendent of. Public Works, and therefore incurred no personal liability.” One of the earliest cases bearing upon this subject *is Waggoner*v. *Jermaine (7*Hill, 357). The head note in that case is as follows: “The canal commissioners, under the act for the construction of the Crooked Lake Canal, caused surveys, etc., to be made, and then adopted a plan, as required by the act, preliminary to commencing the work; but the plan had no reference to the defendant’s dam, standing at the ' outlet of the .lake. Afterward, however, the commissioners, by way of substitute for.certain regulating gates contemplated by the plan, permitted the defendants to increase the height of their dam ten inches, in order to effect the same object for which the gates were designed; and thereby the plain*103tiff’s lands lying above tbe dam were injured. *Held,*that, no action lay against tbe defendants for tbe injury, they having acted under tbe authority of tbe commissioners.”

Tbe case of *Litchfield*v. *Bond*(186 N. Y. 66), cited by appellant’s counsel, is not in conflict with tbe cases above cited. That action was brought directly against tbe State Engineer and Surveyor and officers of the State, and it was held, in effect, that the State could not commit a trespass, and the action- of its officers being contrary to law they were responsible individually. To tbe same effect is *Robinson*v. *Chamberlain*(34 N. Y. 389).

But in tbe case at bar tbe Commissioner of Agriculture 'was tbe public officer ánd tbe defendant bis mere agent, and acting solely, as the evidence shows, under his employment and direction, and be did soiely and only as be was directed. This is uncontradicted in the case. Hence, tbe defendant was not liable' and tbe action, if a cause of action existed in plaintiff’s favor, should have been brought directly against the Commissioner of Agriculture. Unless compelled so to do by authority, we ought not to hold that a mere agent, employed by and acting directly under the authority, employment and direction of tbe Commissioner of Agriculture, a public officer charged with tbe duty of tbe enforcement of tbe pure food laws, so called, is personally liable for acts done by him in carrying out such directions. Such rule, if adopted, would make it extremely difficult to procure agents who would carry out bis instructions, if in case the instructions were wrong such agent was personally liable for acts done in pursuance thereof.

In'the case at bar all reasonable means were taken to ascertain whether or not the calf in question was under four weeks of age. Tbe witness Hulbert, who was plaintiff’s agent in purchasing tbe calf and who claimed to have marked this calf, testified on cross-examination: “ I marked tbe calf because it was a light calf, and I thought it might be seized in New York.” ■ Another- witness called by the plaintiff and .in his employ testified: *“*I marked whatever calves were marked because they were small, and because I was afraid they would be seized in New York.”. Another witness called by the plaintiff testified: “ The calf was a small dark calf. 3⁄8 * * From *104his appearance I should think the calf was about three weeks old.” The defendant testified that the calf was under four Weeks old. One. of defendant’s witnesses, Harry D. Grill, one of the State veterinarians, and a man of great skill and experience, testified: The calf was “under three weeks of age.” Inspector .Clark stated that the calf was. under four weeks of age.

Having the opinions of all these witnesses, the defendant seized the calf and caused it .to he killed, as it was his duty to do, under the directions given him by the Commissioner of Agriculture. If under' such circumstances the inspector, the defendaxit in this case, must permit such calf to be sold as food in the city of New York, or take the responsibility of having a personal action brought against him for a tort in case the assertion of the plaintiff or of some other witness is believed by a jury that the calf was more than four weeks of age, we may not expect such inspector to take the chances of such a litigation against him, but he will allow the citizens of New' York city to continue to eat bob veal.

The judgment appealed from should be affirmed, with costs.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.