Shipman v. State Live-Stock Sanitary Commission

Grant, C. J. (after stating the facts). The position of the relator is thus stated by his counsel: “ If the State desires to destroy cattle which are in good 'health, simply because they cannot stand the tuberculin [491] test, it must compensate tbe owner for tbeir full market value at the time; that is, just before they are subjected to tbe test. If tbe court will permit this case to be tried before a jury, we will bring out, with competent expert witnesses, all the known facts in regard to tbe disease and the tuberculin test, so as to enable tbe court to pass an intelligent judgment on the case, and we firmly believe that- the result of such an investigation will show: (l) That tuberculosis is not a contagious or infectious disease, within tbe meaning of tbe Michigan live-stock sanitary act. (2) That tbe tuberculin test is not sufficiently reliable to warrant tbe killing of cattle without compensation, under tbe police power of tbe State. (3) That tbe tuberculin test does not furnish sufficient proof that tbe animals tested will ever have tbe disease, or be capable of communicating it, to justify tbe State in destroying them, .except upon the condition that full compensation is made, as for perfectly healthy cattle.” The language of the statute is unmistakable. It provides for the destruction of and compensation for diseased, and not sound, cattle. The commission is'tbe sole tribunal to determine whether the animals are diseased, and to ascertain the value, and is to be governed by the value at the date of appraisal. The only appellate jurisdiction provided for by the statute is tbe governor, whose approval of the action of the commission is necessary. If the governor should refuse to approve tbe award of tbe commission, courts could not interfere to compel him to approve the finding. Sutherland v. Governor, 29 Mich. 320; State v. Stone, 120 Mo. 428 (41 Am. St. Rep. 705). It follows that, if the governor should refuse to approve an award directed by this court, the court would be powerless to enforce its judgment. .In such cases courts will not interfere. The law has placed this matter in tbe hands of tbe commission and tbe governor. Tbeir action is final. Cicotte v. County of Wayne, 59 Mich. 509. Where a subordinate body has been vested by the legislature with the right to exercise its judgment, and with tbe power to determine questions of fact, mandamus may lie to compel the body to act, but will not lie to compel it to act in a particular way. [492] There is no sound reason in saying that under this statute the relator is entitled to receive from the State the value of his property at what it would be if unaffected by disease. This would be judicial legislation, because the statute does not authorize the destruction of sound cattle. The precise question was before the court of appeals in New York in Tappen v. State, 146 N. Y. 44, wherein it was held, under a similar statute, that a party was entitled only to the actual value in the diseased condition. If the commission condemns cattle which are not diseased, the State is not liable for the wrongful act of the commission. Gilboy v. City of Detroit, ante, 131. Relator’s remedy in such case, if he has any, — and upon this w'e express no opinion, — is against the members of the commission, and not against the State. Miller v. Horton, 152 Mass. 540 (10 L. R. A. 116, 23 Am. St. Rep. 850); Pearson v. Zehr, 138 Ill. 48 (32 Am. St. Rep. 113); Newark, etc., R. Co. v. Hunt, 50 N. J. Law, 308. It is proper to say that we have not before us that provision of the law under which sound cattle may be killed because of exposure to contagious disease. The writ is denied. The other Justices concurred.