134, 16 Am. St. Rep. 813; Id., 152 U. S. 133, 14 Sup. Ct. 499, 38 L. Ed. 385.

The power to summarily abate nuisances was fully recognized and established as a principle of the common law, upon the ground that the requirement of preliminary formal legal proceedings and a judicial trial would result in defeating the beneficial objects sought to be attained. Within this principle, “quarantine and health laws have been enacted from time to time from the organization of state governments, authorizing the summary destruction of imported cargo, clothing, or other articles by officers designated, and no doubt has been suggested as to their constitutionality." Lawton v. Steele, supra; Sentell v. N. O. & C. Ry. Co., 166 U. S. 698, 17 Sup. Ct. 693, 41 L. Ed. 1169; Hart v. Mayor, 9 Wend. (N. Y.) 571, 24 Am. Dec. 165; Health Dept. v. Rector, 145 N. Y. 32, 39 N. E. 833, 27 L. R. A. 710, 45 Am. St. Rep. 579; Rockwell v. Nearing, 35 N. Y. 308.

The appearance of a malignant and contagious disease in cattle is in its nature such a menace to the public health as to bring it clearly within the class of cases which can only in many instances be effectually dealt with by the destruction of the animals afflicted.

Respondent insists that he has the legal right to recover his damages since the property was not in fact a nuisance, source of filth, or a cause of sickness, as contemplated by the statute for the preservation and protection of the public health. This presents the inquiry whether the determination of the health officers that a nuisance or cause of sickness dangerous to health in fact existed is a final determination, binding upon respondent as owner of the property which the health. officer decided must be destroyed in order to abate the nuisance and remove the cause of sickness.

The statute, as stated, makes no provision giving the party proceeded against for such a nuisance or cause of sickness an opportunity to be heard before his property may be destroyed. While such a determination has been held to be a full protection to all persons. acting under it in carrying out the purposes of the law-that is, to abate, and, if necessary, destroy, that which is in fact a nuisance or source of danger to health-yet it is no protection for destroying private property which in fact is no such nuisance or source of danger. This is upon the ground that due process of law requires that the owner be given an opportunity to be heard at a trial before his private property be taken and adjudged forfeited for his misconduct, or for the protection of the public health. He cannot be deprived of the right, either before or after such taking of his property, to have a judicial inquiry whether in fact he has forfeited the right to his property by coming within the condemnation of the law. In such cases, where a board of health has summarily destroyed property, the owner may bring his action to recover the damages sustained, if it be found he has been unjustifiably deprived of it.

In the absence of judicial inquiry wherein the owner is given full opportunity to establish that no nuisance or cause of sickness exists. as claimed, the board of health cannot declare a thing a nuisance or source of danger to public health which is not so in fact. Their authority to act is bottomed upon the actual existence of the conditions which the statutes declare they may abate or remove. Hutton v. City of Camden, 39 N. J. Law, 122, 23 Am. Rep. 203; Lawton v. Steele, supra; Cole v. Kegler, 64 Iowa, 59, 19 N. W. 843; People ex rel. v. Board of Health, 140 N. Y. 1, 35 N. E. 320, 23 L. R. A. 481, 37 Am. St. Rep. 522; Health Dept. v. Rector, 145 N. Y. 32, 39 N. E. 833, 27 L. R. A. 710, 45 Am. St. Rep. 579, and cases; City of Orlando v. Pragg, 31 Fla. 111, 12 South. 368, 19 L. R. A. 196, 34 Am. St. Rep. 17.

It is urged that no action can be maintained to charge appellant for the value of the property because in ordering its removal and destruction he was in the exercise of his official duty as city health officer. The laws for the preservation of the public health make no provision for the payment of property so destroyed by mistake on the order of health officers. The question then arises, who is liable for the value of this property under the facts and circumstances of this case?

The jury found that the steer was not afflicted with a contagion, and that the beef and hides destroyed were not infected with anthrax. It is clear that the city is not liable under the decisions of this court. In the case of Kempster v. City of Milwaukee, 103 Wis. 421, 79 N. W. 411, it is said: "In carrying out the laws for the preservation of the public health the city is performing a duty which it owes to the whole public as distinguished from a mere corporate duty. It is a duty which it is bound to see performed in pursuance of law as one of the governmental agencies, but not a duty from which it derives special benefit or pecuniary advantage in its corporate or private capacity. Hayes v. Oshkosh, 33 Wis. 314, 14 Am. Rep. 760, and cases cited."

As here indicated, under the laws of this state no liability on the part of a municipality arises for injuries resulting from the acts or default of its officers while performing a duty imposed upon it as a governmental agency for the public at large. Durkee v. City of Kenosha, 59 Wis. 123, 17 N. W. 677, 48 Am. Rep. 480; Folk v. City of Milwaukee, 108 Wis. 359, 84 N. W: 420.

Appellant contends that he is not liable in this action upon the ground that the powers vested in members and officers of a board of health are discretionary in character, and that the duty of determining what are causes of sickness affecting the public health are [is] quasi judicial in character. The acts of appellant, as appears from the above statement of facts, were within the scope of his duty as health officer, and come within the class of quasi judicial acts. It is the

general rule that such officers are not liable in damages to private persons for injuries which may result from their official action done in the honest exercise of their judgment within the scope of their authority, however erroneous or mistaken that action may be, provided there be an absence of malice or corruption. Dillon, Municipal Corporations, § 277, and note; Steele v. Dunham, 26 Wis. 393; Druecker v. Salomon, 21 Wis. 621, 94 Am. Dec. 571; Smith v. Gould, 61 Wis. 31, 20 N. W. 369; Gates v. Young, 82 Wis. 272, 52 N. W. 178.

The facts and circumstances show, however, that respondent's private property rights have been unjustifiably invaded, and that, unless it be that defendant and those who actually committed the trespass in wrongfully destroying his property are liable, he will be remediless in the law. Under such circumstances quasi judicial officers have been held liable to respond in damages upon the ground that the exercise of this discretion is limited by the superior right guarantying to every person immunity from having his private property rights invaded except under the regular course of law, sanctioned by the established customs and usages of the courts. The discretion in which such officers are protected must be limited to the line where their acts invade the private property rights of another, for which invasion the law awards no redress other than an action against the one actually committing the trespass. Hubbell v. Goodrich, 37 Wis. 84; Houston v. State, 98 Wis. 481, 74 N. W. 111, 42 L. R. A. 39; Cubit v. O'Dett, 51 Mich. 347, 16 N. W. 679; Miller v. Horton, 152 Mass. 541, 26 N. E. 100, 10 L. R. A. 116, 23 Am. St. Rep. 850; Pearson v. Zehr, 138 Ill. 48, 29 N. E. 854, 32 Am. St. Rep. 113; McCord v. High, 24 Iowa, 336. The circuit court proceeded upon this principle, and held appellant liable in damages resulting from the destruction of the property, because it was not in fact a nuisance or cause of sickness endangering the public health.

This course is assailed by appellant upon the authority of Fath v. Koeppel, 72 Wis. 289, 39 N. W. 539, 7 Am. St. Rep. 867. This was an action against the defendant, as meat inspector of the city of Milwaukee, for the destruction of a quantity of fish as unwholesome for food. The action was upon the ground that his acts were without authority, but the court held that he had authority to inspect fish, and judge whether they were a proper article of diet, and to destroy them if he found they were unwholesome. It is stated in the opinion: "He is vested with the power to determine the quality and healthfulness of fish in the market, and, if unwholesome or unfit to be eaten, to condemn and destroy them. This is a high and responsible judicial power, * * * and the officer exercising such a power is within the protection of that principle that a judicial officer is not responsible in an action for damages to any one for any judgment he may render, however erroneously, negligently, ignorantly, corruptly, or maliciously he may act or render it, if he acts within his jurisdic

tion"-citing, among the authorities in support of this proposition, Raymond v. Fish, 51 Conn. 80, 50 Am. Rep. 3.27

The decision arose on demurrer, and seems to assume that the fish destroyed were in fact unwholesome, and not a fit article of diet. Under this assumption of fact the decision was in accord with the doctrine that health officers are not liable in damages for destroying property when such property is in fact a source of danger to the public health. The opinion, however, seems to go upon the ground that such quasi judicial officers are under all circumstances absolutely protected from liability to the owner of the property, and are entitled to the same protection as an officer of a judicial tribunal in the discharge of official action within his jurisdiction. This is not the rule established under the adjudications. Upon the authorities cited and the reason advanced therein the rule is: "Inasmuch as the law quite universally protects private property, * * * the judgment or discretion of a quasi judicial officer, though exercised honestly and in good faith, does not protect him where, by virtue of it, he undertakes to invade the private property rights of others, to whom no other redress is given than an action against the officer." Mechem, Public Officers, § 642, and cases cited. In so far as Fath v. Koeppel, supra, is in conflict with this conclusion, it must be deemed overruled. * * *

The evidence adduced fully sustains the findings of the jury. Upon the grounds stated, respondent was entitled to a judgment for the value of the property destroyed.

The judgment of the circuit court is affirmed.29

27 In Raymond v. Fish, 51 Conn. 80, 99, 50 Am. Rep. 3 (1883), an action to recover damages for the removal of brush with oysters growing on it, brought against persons acting under an order of the board of health, Park, C. J., said: "By the common law a party has the right to defend himself from any assailant, even to the taking of life when necessary, and even to the taking of life when not necessary in fact, but apparently so. If life may be protected by destroying life, when apparently necessary, but not so in fact, may not life be protected by destroying property when apparently necessary, though afterwards discovered not so in fact? But it may be said that this right of selfdefense comes when the assailed party seems to be driven to the last extremity. So here the justification of the board of health in the destruction of property must come in seemingly extreme cases, where there is reasonable ground to believe that immediate action is necessary for the preservation of the life and health of the inhabitants, and where there is reasonable ground to believe the supposed nuisance to be one in fact. We go no farther in this case than its exigencies require. We leave undecided how far the board of health may go in other cases, where the destruction of property may not seem to require such summary action. It is expressly found in the case that the board acted in good faith throughout these transactions, and in addition thereto such facts are detailed as go to show that they acted with extreme caution. We cannot doubt the constitutionality of the act when rightly considered. It is nothing more or less than a police regulation. The property was not taken for public use within the meaning of the Constitution. It was destroyed for the protection of the public health. We advise judgment for the

defendants."

* *

See Whidden v. Cheever, 69 N. H. 142, 44 Atl. 908, 76 Am. St. Rep. 154 (1897). 28 See, also, Underwood v. Green, 42 N. Y. 140 (1870); Miller v. Horton, 152

SECTION 35.-SAME-AGAINST FEDERAL OFFICERS

TRACY v. SWARTWOUT.

(Supreme Court of United States, 1836. 10 Pet. 80, 9 L. Ed. 354.) Error to the Circuit Court for the Southern District of New York. This action was commenced by the plaintiffs in error, in the Superior Court of the City of New York, and on the suggestion of the defendant that the suit was instituted against him for acts done by him under the revenue laws, as collector for the district of the city of New York, and praying that the same should be removed to the Circuit Court of the United States for the Southern District of New York, the cause was so removed to October term, 1833. The declaration was in trover for certain casks of syrup of sugar

MCLEAN, Justice, delivered the opinion of the court.

This case was brought into this court by a writ of error to the Circuit Court of the Southern District of New York. The suit was prosecuted in that court, to recover damages from the defendant, who, as collector of the customs, had refused to allow the plaintiffs to enter and receive the payment of the lawful duties, on certain casks of syrup of sugar cane, which they had imported into the port of New York. It is admitted that the law imposed no more duty on the article than fifteen per cent. ad valorem, although the collector, acting under the instructions of the Secretary of the Treasury, required bond for the payment of the above duty, or, should it be required, a duty of three cents per pound. No bond was given, and the syrup remained in the possession of the collector for a long time, by which means its value was greatly deteriorated. The question for consideration arises out of a bill of exceptions in which the evidence is stated at large, showing the quality of the syrup, the number of gallons imported, and the refusal of the defendant to take bond for the fifteen per cent. ad valorem duty.

It was admitted by the counsel of the plaintiffs that the defendant acted throughout with entire good faith, and under instructions from

Mass. 540, 26 N. E. 100, 10 L. R. A. 116, 23 Am. St. Rep. 850 (1891), post, p. 535. New York Agricultural Law (1901) § 70a: "The actual appraised value * of all animals slaughtered under the provisions of this article [Diseases of Domestic Animals], which shall be found upon a post mortem examination not to have had the disease for which they were slaughtered, unless the same were killed on account of the violation of quarantine regulations, shall be paid to the owners of such animals. * *

See New York City Charter 1901 (Laws 1901, c. 466) § 1196, post, p. 358. 29 The rest of the statement of facts and a portion of the opinion are omitted.