National Republican., 1875-07-22
UNWHOLESoME FOOD.
POWERS OF THE BOARD OF HEALTH
IMPORTANT DECISION OF JUSTICE MILLS.
The Right TO Condemn UnsOund Fish.
The Action of the Fish Inspector Sustained
The Case OF Bay liss d skidmore ".
Ludington-A Suit for damages
Opinion of the Justiee-He
Bustafns the Action OF
the Onieial, &C, &c.

For the past week or ten days the cases Of
Bayliss and Skidmore, nsh dealers, against
Ludington, an inspector Of the Board Of Health,
for the value Of fish condemned % unsound food
and destroyed by him, have been on trial before
Justice Samn q. Mills, and have excited consider.
able interest. These cases involve the power Of
the Board Of Health, aud the decision Of Justice
Mills, which Is given below, Is an important one,
both 10 the Board OF Health and TO the citizens.
It will be seen that Il fully sustains the power OF
the board to prevent the sale Of unwholesome food
by inspection, and destruction Of unsound and un-
wholesome articles offered for sale as food. The
Justice has examined the authorities and the law
OF these cases with great care, and his opinion Is
worthy o careful perusal.
OPINION OF JUSTICE MILLS.
These cases are similar in principle and were
argued together. In the case Of Skidmore, the
plaintiff seeks to recover, In action OF debt, the
S% @ tSs ss S
Skidmore, taken from him by Ludington, an In.
spector Of marine products under the Board Of
The plaintiff In this action testifes that these
Ash were taken from him against his viii and
consent. THE possession Of personal property
such property is a wrong to him. The act Of seiE-
ing and detaining personal property unlawfully
Is trespass. For such wrongful taking an action
may be maintained, or the party injured may
bring an action of troyer and convention"
In the cases before the court at this time flor iu
this respect they are identical)ti is not claimed
by the Plaintiffs that there had been, on the part
OF the defendants, contract, express or implied,
to pay for the fish so taken; the plaintiffs having
protest and remonstrance. Therefore the action
should have been brought either for felonious
taking, which would properly come under the
being essential actions Of assumpsit, because the
amount claimed was unliquidated and the value
of the fish taken to be ascertalned by the court
fror ha aufh 70 n m INDIGNANT m.
properly brought and might have properly been
dismissed u Hilliard Torts, p. 81, sec. y; McMil-
the defendants not demurrIng, and having joined
issue upon the merits, have thereby waived what
ever advantage they might have had under
TECHNICAL PLEADTNGs.
The defendant in these cases admits the taking
Of the fish, and claims to have taken them in pur
an ordinance of the Board Of Health Of the Dis
trict of Columbia, said board having been ap-
pointed in accordance with section % OF act Of
Congress, approved February q, 1871, entitled,
ian act to provide o government for the District
OF Columbia" The ordinance In question Is as
'7That It shall be the duty of the inspector Of
FISH and other marine products to examine and
inspect all hsh, oysters, clans loosters and other
or otherwise brought, by any person or persons,
into the cities Of Washington and Georgetown,
hnd any Of the said marine products to be in an
unsound, diseased or unwholesome condition, 1t
shall be his duty to prohibit their sale; and the
powered and directed to seize and destroy any un-
sound, diseased or unwholesome fsh, oysters,
clans, crabs, or other marine products, which may
be offered for sale as food within the cities Of
Washington and Georgetown"
1t is claimed en- the part Of the plaintiffs that
the fish taken were not unsound, and are whole
some as food, and even If unsound, they were not
taken by "due process Of Law" and that the Board
of Health had no power under the organic law to
seize and destroy property Of any kina % that & the
States expressly provides that no person shall be
deprived Of life, liberty or property without
DUE PROCESS OF LAW,
and In support of these propositions the plaintiffs
refer 70 the Gaze Of Bates vs.. District OF Columbia
v In this case the Board Of Health undertook to
declare the business establishment Of the defend
wa was not \ a nuisance At the common law, and the
court decided that the Board OF Health had no
power to declare any thing or condition Of things
. nuisance Injurious to health which was not q
nuisance by the rules Of the common law OF made
such by some statute governing the District.
BATES nea oeen prosecnung I6e DgnnsS. W wiSnous
capital in real estate to carry on said business,
In the cases of BaylIss and Skidmore vs.. Lud-
ant sworn oficer Of the Board Of Health, claims
that the articles destroyed were being offered for
sale as food, and were unsound and unwholesone.
the board to prevent ths sale ofunwholesome food
(and the defendant claims that these fsh were
being offered Tor sale as food, being in public
the Board ef Health power "to make and enforce
regulations" to prevent the sale Of uuwholesome
food in the cities Of Washington and Georgetown.
The board is thus by statute invested with power
to make regulations to prevent the sale of
unwholesome food; and even If there were no
authority 70 make and enforce such regulations
have the right to prevent the sale OF articles that
would endanger
THE HEALTH on SAFETY
of the community. When the security Of the lives
or the health Of community requires II, property
may be destroyed. (Dooley Constl Lim., p. So,
5eS-4 Notes and Gases Cited; Met. Board OF Health
VS.. Hester, 81 N. Y, col; Lincoln VS.. Smith, q
the oniy way TO prevent the sale is to destroy the
unsound and dangerous articles under the police
power Of the State. Numerous cases are cited N
taInsd fSS by tbs cOus,S must BE- Conceded that
the sale Of unHholesome food is . nuisance preju-
dicial to health, which ought to be summarily
abated and in which the interests Of the individ-
usl must be subordinated to the public good.
i think there can be no doubt Of the legality Of
the ordinance Of the Board Of Health, authorig-
ing the destruction Of unwholesome food. The
Board Of Health Is q quasi corporation, created
by Congress for an express purpose, viz; To pro-
tect the health Of the community. For the spe-
cfc purpose of their creation, and to the extent
of the duties imposed upon them by law, they
have all the powers OF q municipal corporation,
and incident thereto is the police power summa-
rilyto
Now II the articles condemned were unsound, the
fact that they were offered for sale as food would
make them liable to be destroyed, and the fact
that they were at the stands Of dealers in such
articles in public market is sufficient to prove
that they were there for sale, In the absence Of
any evidence to the contrary.
The plaintids to recover In these actions must
show that the fish seized were sound, and that
the defendant being public officer, exercising
his Judgment In the discharge of his duties acted
with malice corrupt motives, or willful intent TO
ipjure. There is no evidence Of improper motive
ness Of the fish on the part Of the plaintiff the tes
timony Is that no one Of the witnesses knew at
what time the fish were caught, how long they
had been kept. Several gentlemen are intro
duced as witnesses on behalf Of the plaintiffs, who
testify that they ate portion Of q hsh Tin each
Of the cases) left by Ludington when he made the
seizure, and they pronounced the fish that they
ate sound and wholesome. But this was not the
fish condemned By Ludington. The testimony Of
the witnesses is that some hsh, on the same
bench, will be sound while others will be un-
sound.
I do not propose TO review In detail the eyi-
dence Of all the witnesses in these cases. The
defendant swears that the hsh he condemned and
destroyed were unsound and unfit Ter food. He 10
a sworn oficer, and must be presumed to be truth
full and to have no interest In the matter unless
the contrary is shown, and the plaintiffs having
failed to show any malice or improper conduct on
the part OF the Inspector, therefore think that
the plaintiffs, in both suits, have failed to make
o case. Judgment for defendant, with costs.
For Sale.