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Subject Area: Law
Topic: The American Revolution and Constitution

§ 169.: Destruction of personal property in the interest of public health.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 169.

Destruction of personal property in the interest of public health.—

Elsewhere, in more than one place, the discussion of modern police regulations has revealed the tendency of judicial and public opinion to translate the maxim, salus populi suprema lex; the public health is the highest law; and whenever a police regulation is reasonably demonstrated to be a promoter of public health, all constitutionally guaranteed rights must give way, to be sacrificed without compensation to the owner. The sacred right of property, so jealously guarded against infringement or trespass in other cases, whether at the hands of the State or of other private persons, is freely invaded, whenever such invasion is made in the promotion of the public health. And the courts unite in the grave statement, when property is taken or destroyed, in order to promote the public health, or to prevent the spread of infectious or contagious diseases, that it is not a taking of private property in the constitutional sense, which is either prohibited altogether, or is only permitted upon payment of full compensation to the owner. The destruction of beds, bedding and clothing, which have been used by a sufferer of some deadly infectious or contagious disease, is authorized wherever disinfecting by fumigation or otherwise is not considered by the health officers to furnish a sufficient protection against contagion. So far as I know the destruction of such property by the boards of health has never been questioned; possibly, because the cases have become rare, on account of the great advance which has been made in the effectiveness of fumigation and of other disinfectants which have been discovered. Certainly, the destruction of property, when the use of disinfectants will furnish the required protection against contagion, would be pronounced to be a useless trespass upon the right of property, and hence to come within the inhibition of the constitutions.

The power of the State to destroy property, in order to prevent the spread of disease, has been most actively resisted in the case of diseased animals. This determined resistance to such regulations may be occasioned, either by the greater value of the property so destroyed, or by the absence of a popular conviction that the destruction of the diseased animals is necessary to the preservation of the public health. A herd of Jersey milch cows is treated, as is required by the laws of New York, and of other States, to injections of tuberculin, the medicine which is declared to have the power of disclosing the existence in animals of latent or concealed tuberculosis; and the animals which, under this treatment, develop tuberculosis, are knocked in the head, because the medical profession, under the modern bacterial or general theory of diseases, have come to the generally accepted conclusion that the dreaded disease of tuberculosis may be transmitted to a human being who drinks the milk or eats the flesh of a tuberculous animal. Many owners of such herds of cattle, perhaps the majority of them, blinded by their own pecuniary loss, when for this cause and reason their valuable cattle are destroyed, repudiate the medical theories upon which the act of destruction is based, and by which it is justified, and consider it a wanton and unjustifiable taking of private property. But the courts have uniformly sustained all laws which provide for the destruction of diseased animals, and deny the owner’s claim to compensation for his loss.1

On the same principle, it has been held to be a lawful exercise of the police power to provide for the destruction, without compensation, of trees which are affected with a disease called the “yellows.”2

[1]Newark & S. O. H. R. Co. v. Hunt, 50 N. J. L. 308; Loesch v. Koehler, 144 Ind. 278; Dunbar v. City Council of Augusta, 90 Ga. 390. In the Indiana case, it is also expressly declared to be unnecessary to the legality of the act of destruction in such a case, that the owner should be previously notified.

[2]State v. Main, 69 Conn. 123.