Opinion
No. 21213
Decided February 6, 1929.
Constitutional law — State board of agriculture — Inspection for bovine tuberculosis and destruction of diseased cattle — Appropriations by county constitutional — Section 1121-17, General Code — Section 19, Article I, Constitution — Counties may pay expenses of state officers and employees' expenses, when.
1. Section 1121-17, General Code, does not violate Article I, Section 19, of the Constitution of Ohio.
2. Under Section 1121-17, General Code, the board of county commissioners of a county may appropriate money from the general funds of such county in payment of bills to be incurred by officers, agents and employees of the state of Ohio in making a tuberculin test of cattle owned and located in such county, to be paid out on warrants issued by the county auditor of such county, subject to the approval of the department of agriculture.
ERROR to the Court of Appeals of Miami county.
In the instant case, a petition was filed in the court of common pleas of Miami county, Ohio, which reads as follows:
"The plaintiff's relator, Dorsey Honeyman, is a resident of Monroe township, Miami county, Ohio, and a taxpayer of Miami county, Ohio.
"On the tenth day of December, 1927, said relator requested, in writing, Hon. L.E. Harvey, prosecuting attorney of Miami county, Ohio, to bring and prosecute this action. Said prosecuting attorney, on the twelfth day of December, 1927, declined and refused, in writing, to bring and prosecute this action.
"The relator, therefore, brings and prosecutes this action as a taxpayer of Miami county, Ohio.
"The defendant threatens to and will unless enjoined by an order of this court, make an appropriation of $2,000.00 and probably more from the general funds of Miami county, Ohio, now in the treasury of said county for use during the year 1928, in payment of bills to be incurred by officers, agents and employees of the state of Ohio in making tuberculin tests of cattle owned and located in Miami county, Ohio, under the provisions of the Riggs Law of Ohio, and to be paid out on warrants issued by the county auditor of Miami county, Ohio, after said bills have been approved by the defendants, to the great and irrepairable [irreparable] damage of plaintiff and said plaintiff's relator and all other taxpayers of Miami county, Ohio.
"The defendants do not intend, after said appropriation has been made, to pay or turn the same over to the state of Ohio to be used and paid out under the supervision of the board of agriculture of the state of Ohio.
"It is the intent and purpose of the defendants to use said funds, after the appropriation of the same, to pay salaries and mileage of state appointed and employed veterinarians and their helpers while they are engaged in giving said tuberculin test to cattle in Miami county, Ohio, and for ear tags, cards and placards to be used by said veterinarians and their helpers in connection with said tuberculin test.
"The said veterinarians and their helpers, agents and employees to whom defendant proposed to pay said appropriation are not in the employ of the county of Miami, and there is no authority or warrant in law to use public funds of said county of Miami to pay the salaries, mileage and incidental expenses of ear tags, cards and placards to be used by said state officers, agents and employees in making said tuberculin test of cattle in Miami county, Ohio.
"Said state officers and employees in making said tuberculin test will operate under the rules and regulations promulgated and adopted by the state board of agriculture. * * * [The petition then gives an abstract of the rules in question, which is omitted, as it has no bearing upon this decision.]
"Said rules were adopted by the state board of agriculture under the authority supposed to have been conferred on said board by virtue of the provision of Section No. 14 of said Riggs Law.
"The provisions of said Section No. 14 and other provisions of said Riggs Law providing for fixing a compensation to be paid for cattle condemned under the provisions of said law, and substituting two and in some instances three appraisers, and the said rules adopted by the state board of agriculture, are in conflict with the provisions of Section No. 19, Article No. 1 of the Constitution of Ohio, requiring adequate and full compensation for private property taken for public use and benefit, and is in direct violation of said article requiring compensation to be paid to be fixed by a jury.
"The defendants propose to use said public funds of Miami county, Ohio, after the same have been appropriated, to assist in carrying forward said illegal and unlawful and unconstitutional acts of said state officers, agents and employees in tuberculin testing, condemning and slaughtering of cattle in Miami county, Ohio.
"Said use of said public funds will be a misapplication and unwarranted use and waste of public funds of Miami county, Ohio.
"Wherefore, plaintiff prays that pending this action a temporary injunction be granted, restraining the defendants from appropriating any public funds of Miami county, Ohio, now in the treasury of said county to be used by the defendants in the year 1928 in paying the salaries and mileage of state veterinarians, officers and employees in making tuberculin test of cattle owned in Miami county, Ohio, and for ear tags, cards and placards used in connection with said tuberculin testing.
"Plaintiff further prays that on final hearing said temporary injunction be made permanent, and that plaintiff and the taxpayers of Miami county, Ohio, be given and granted all other proper relief."
A restraining order was allowed upon the filing of the petition, and summons was duly issued. A motion to dissolve the temporary restraining order and to dismiss the petition was later filed, alleging the following reasons:
"First. Because the defendants are authorized and empowered by law to make appropriations for the tuberculin testing of cattle, the funds to be expended in the manner provided by law and subject to the approval of the department of agriculture of Ohio.
"Second. Because it is not the intent or purpose of the defendants to appropriate the funds of Miami county for the payment of the salaries and expenses of any agents, employees, veterinarians and helpers, or the expense of purchasing any supplies to be used in tuberculin testing of cattle in Miami county, Ohio, except such salaries and expenses as they are specifically authorized and empowered by law to pay subject to the approval of the department of agriculture of Ohio.
"Third. Because the defendants have not threatened to and it is not their intent and purpose to appropriate or expend the funds of the county of Miami except as authorized by law.
"Fourth. Because it is not the intent or purpose of the defendants to appropriate or use any of the public funds of Miami county, Ohio, to assist any state officers, agents or employees in carrying forward any illegal or unconstitutional acts in the tuberculin testing of cattle."
The court, upon consideration of this motion, treated it as a general demurrer and sustained it, dissolved the temporary restraining order, and dismissed the petition.
Upon error being prosecuted to the Court of Appeals of Miami county, the judgment of the court of common pleas was affirmed. Error proceedings were then prosecuted to this court.
Mr. W.A. Haines and Mr. William Harry Gilbert, for plaintiff in error.
Mr. Edward C. Turner, attorney general, Mr. L.E. Harvey, prosecuting attorney, and Mr. Herman E. Werner, for defendants in error.
The instant case presents many of the same legal problems as that of Kroplin v. Truax, Director of Agriculture, ante, 610, 165 N.E. 498, this day decided, and we deem it unnecessary to repeat and redecide those questions here. An additional question, however, is presented by that part of the petition which prays that an injunction be granted to restrain the board of commissioners of Miami county from appropriating any public funds of the county in pursuance of Section 1121-17, General Code. This section reads as follows:
"The county commissioners in their respective counties are hereby authorized and empowered to make such appropriations from the general funds of their county as will enable them to co-operate effectively with the cattle owners, the department of agriculture, and the United States Bureau of Animal Industry in the eradication of tuberculosis. The money so appropriated shall be placed in a fund to be used in the county in which it originated, subject to the approval of the department of agriculture."
In the Kroplin case, this court has held that the Legislature, in the exercise of its police power, may require the examination and testing of cattle for bovine tuberculosis, and may provide for their summary destruction in case the disease is found to exist.
In this case, the plaintiff in error is asking that the commissioners of Miami county be enjoined from making appropriations to defray the salary and expenses of state veterinarians, officers, and employees in making tuberculin tests, and necessary expenses incurred in making the tests, upon the ground that these officers are state officers, and that, if this money is so expended, it will have been expended for a state purpose, and that the county cannot be forced to expend its funds for a general state purpose.
We do not agree with this contention. The county is a subdivision of the state, subject to the legislative control of the state.
Where a state by enactment, in furtherance of its governmental purposes, imposes an obligation upon a county not in conflict with the state Constitution, that obligation becomes one which the county must fairly meet. Mackenzie v. Douglas County, 81 Or. 442, 159 P. 625, 1033.
Counties are agencies of the state for governmental purposes. In Civic Federation v. Salt Lake County, 22 Utah 6, at page 16, 61 P. 222, 223, it was held: "The same power which it [the Legislature] may exercise over the revenues of the state it may exercise over the revenues of a county or city for any purpose connected with its present or past conditions not repugnant to the organic law."
Under the Riggs Law, Sections 1121-1 to 1121-25, General Code, the testing program is not exclusively a state enterprise. It constitutes a joint enterprise to be carried on by the state and the county. All cattle owners and all milk consumers of Miami county will receive the benefit of the enactment, and under Section 1121-17 not one cent of this particular appropriation will be expended outside the confines of Miami county.
This precise contention was raised in the case of Albright v. Board of County Commrs. of Douglas County, 108 Kan. 184, 194 P. 913, a controversy which decided the constitutionality of a statute which required the board of county commissioners to pay one-half of the appraised value of cattle infected with tuberculosis, when they were slaughtered under state law. It was held that this provision did not violate the state or federal Constitutions. The action was instituted to compel the board of county commissioners to pay the plaintiff, the cattle owner, one-half of the appraised value of cattle condemned and sold under the law, his cattle having been slaughtered under order of the state sanitary commission because they were infected with tuberculosis. The county commissioners refused to pay the amount provided by the statute. A specific defense was made that the law deprived the county of its funds illegally, and the court held that such use of the county funds was constitutional.
In Chambers v. Gilbert, 17 Tex. Civ. App., 106, 42 S.W. 630, it was also urged that the Legislature was without power to provide for the payment of the damages arising from the slaughter of condemned animals out of funds belonging to the county. The court overruled that contention, holding that, since the county is a mere subdivision of the state, it is subject to its legislative control.
These decisions upheld statutes much more drastic than Section 1121-17, which simply provides for the payment of bills incurred by officers, agents and employees of the state in making tuberculin tests of cattle owned and located within Miami county.
On the authority of these decisions and because of the general relation between the county and the state, we overrule the contention.
Since the funds are to be disbursed in accordance with valid statute, the plaintiff in error is not entitled to an injunction, and the judgment of the Court of Appeals will be affirmed.
Judgment affirmed.
KINKADE, ROBINSON, JONES, MATTHIAS and DAY, JJ., concur.