Tappenden, 1 East 563, where the law was held otherwise. The doctrine of Harmon v. Tappenden was subsequently affirmed by Abbott, C. J., in Cullen v. Morris, 2 Stark, 577. In Jenkins v. Waldron, 11 Johns. 114, the Court say that in their opinion it "would be opposed to all the principles of law, justice and sound policy, to hold that officers, called upon to exercise their deliberate judgments, are answerable for mistakes in law, either civilly or criminally, when their motives are pure and untainted with fraud or malice." Such, too, was regarded as the law in New Hampshire, in Wheeler v. Patterson, 1 N. H. 89, and in Tennessee, in Ball v. Batts, 8 Humph. 225. But without impugning the authority of Lincoln v. Hapgood, in reference to the point there decided, it may be sufficient to remark that the doctrine therein set forth presents no such equitable considerations in its favor, as to require it to be extended to cases in which it is not directly applicable. Such indeed seems to have been the view of the Court of the State in which that case was decided, in other instances, where its authority was invoked. In Spear v. Cummings, 23 Pick. 224, it was held that the teacher of a town school was not liable to an action by a parent for not instructing his children; and in the opinion delivered, the Court remarked that the principle established in Lincoln v. Hapgood, "is not applicable to the case under consideration and cannot be relied on as a precedent." In Griffin v. Rising, 11 Met. 339, it was decided that no action could be maintained against assessors, by an individual who is liable to taxation, for their omission to tax him, whereby he lost his right to vote at an election, unless it be shown affirmatively that they omitted to tax him wilfully, purposely, or with a design to deprive him of his vote. ... The defendants therefore, however much they may have misjudged their duty, are not liable if they acted honestly. . . . Plaintiff nonsuit. SHEPLEY, C. J., and TENNY and HOWARD, JJ., concurred. [Printed ante, as No. 569; Point 2 of the opinion.] 1130. FIELDS v. STOKLEY SUPREME COURT OF PENNSYLVANIA. 1882 99 Pa. 306 [Printed ante, as No. 603.] 1131. MILLER v. HORTON SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1891 152 Mass. 540, 26 N. E. 100 TORT for killing a horse. Trial in the Superior Court, without a jury, before BLODGETT, J., who allowed a bill of exceptions, in substance as follows. The defendants admitted that they killed the plaintiff's horse, and justified the act by showing that, as selectmen and members of the board of health of the town of Rehoboth, they killed the horse in that town, where the plaintiff resided and kept the horse; and that they did it in obedience to an order, [signed] . . . "Levi Stockbridge, J. F. Winchester, D. V., Commissioners on Contagious Diseases among Domestic Animals." . . . Winchester testified, that he, with a Dr. Mackie, of Attleborough, examined the horse, and decided that it had the glanders; that neither of the other commissioners examined it; and that the foregoing order was thereupon issued and sent to the defendants. The defendants testified that, on receiving the above order, they went to the plaintiff's premises to kill the horse described; that the plaintiffs caused two veterinary surgeons to come and examine the horse, and they decided that it did not have the glanders or any other disease; that they then decided to postpone the killing until they could communicate with Winchester; that about eight days afterwards, in November, they again went to the plaintiff's premises and killed the horse in obedience to that order, the cattle commissioners refusing to modify it. This was all the justification they offered. The two veterinary surgeons also testified, against the defendant's objection, that the horse did not have the glanders, or any other disease. The plaintiff requested the Court to rule, as matter of law, that, taking all the evidence in the case as most favorable for the defendants, they had failed to show that their action was authorized by law; and that the statute providing for the killing of an animal affected by a contagious disease was unconstitutional and void. The judge refused so to rule, but found as a fact, if the evidence of the two veterinary surgeons was admissible, that the horse that was killed was not afflicted with glanders or any contagious disease. The judge found for the defendants; and the plaintiff alleged exceptions. The case was argued at the bar in October, 1889, and afterwards was submitted, on the briefs, in November, 1890, to all the judges. J. Brown, for the plaintiff. H. J. Fuller, for the defendants. HOLMES, J. This is an action of Tort for killing the plaintiff's horse. The defendants admit the killing, but justify as members of the board of health of the town of Rehoboth, under an order addressed to the board and signed by two of the three commissioners on contagious diseases among domestic animals, appointed under the St. of 1885, c. 378, and acting under the alleged authority of the St. of 1887, c. 252, § 13. This order declared that it was adjudged that the horse had the glanders, and that it was condemned, and directed the defendants to cause it to be killed. The judge before whom the case was tried found that the horse had not the glanders, but declined to rule that the defendants had failed to make out their justification, and found for the defendants. The plaintiff excepted. The language of the material part of § 13 of the Act of 1887, is: "In all cases of farcy or glanders, the commissioners, having condemned the animal infected therewith, shall cause such animal to be killed without an appraisal, but may pay the owner or any other person an equitable amount for the killing and burial thereof." Taken literally, these words only give the commissioners jurisdiction and power to condemn a horse that really has the glanders. The question is whether they go further by implication, so that, if a horse which has not the disease is condemned by the commissioners, their order will protect the man who kills it in a subsequent suit by the owner for compensation. The main ground for reading into the statute an intent to make the commissioners' order an absolute protection is, that there is no provision for compensation to the owner in this class of cases, and therefore, unless the order is a protection, those who carry it out will do so at their peril. Such a construction when once known would be apt to destroy the efficiency of the clause, as few people could be found to carry out orders on these terms. On the other hand, this same absence of any provision for compensation to the owner, even if not plainly founded on the assumption that only a worthless thing and a nuisance is in question, still would be an equally strong argument for keeping to the literal and narrower interpretation. . . . When, as here, the horse not only is not to be paid for, but may be condemned without appeal and killed without giving the owner a hearing or even notice, the grounds are very strong for believing that the statute means no more than it says, and is intended to authorize the killing of actually infected horses only. If the commissioners had felt any doubt, they could have had the horse appraised under § 12; whether an action would have lain in that case we need not consider. The reasons for this construction seem decisive to a majority of the Court, when they consider the grave questions which would arise as to the constitutionality of the clause if it were construed the other way. Section 13 of the Act of 1887, by implication, declares horses with the glanders to be nuisances, and we assume in favor of the defendant that it may do so constitutionally, and may authorize them to be killed without compensation to the owners. But the statute does not declare all horses to be nuisances, and the question is, whether, if the owner of the horse denies that his horse falls within the class declared to be so, the Legislature can make the ex parte decision of a board like this conclusive upon him. That question is answered by the decision in Fisher v. McGirr, 1 Gray, 1. It is decided there that the owner has a right to be heard, and further, that only a trial by jury satisfies the provision of Art. XII of the Declaration of Rights, that no subject shall be deprived of his property but by the judgment of his peers, or the law of the land. . . . Of course there cannot be a trial before a jury before killing an animal supposed to have a contagious disease, and we assume that the Legislature may authorize its destruction in such emergencies without a hearing beforehand. But it does not follow that it can throw the loss on the owner without a hearing. If he cannot be heard beforehand, he may be heard afterward. The statute may provide for paying him in case it should appear that his property was not what the Legislature has declared to be a nuisance, and may give him his hearing in that way. If it does not do so, the statute may leave those who act under it to proceed at their peril, and the owner gets his hearing in an action against them. An illustration, although not strictly an instance, of the former mode may be found in the statute authorizing fire-wards or engineers of fire departments to order houses to be pulled down in order to prevent the spreading of a fire, and making the town answerable to the house owner, except in certain cases in which the house is practically worthless because it would have been burned if it had not been destroyed. Pub. Sts. c. 35, §§ 3-5. No doubt the order would be conclusive in its legislative capacity (or "so far as the res is concerned," as is said in Salem v. Eastern Railroad, 98 Mass. 431, 449), that is to say, that the house should be pulled down. But the owner is preserved his right to a hearing in a subsequent proceeding for compensation. On the other hand, a case where a party proceeds at his peril is when he pulls down a house for the same object without the authority of statute. It is said that if the destruction is necessary he is not liable. But by the common law as understood in this Commonwealth, "if there be no necessity, then the individuals who do the act shall be responsible." SHAW, C. J., in Taylor v. Plymouth, 8 Met. 462, 465 [ante, No. 771], Philadelphia v. Scott, 81 Penn. St. 80, 87. See Mitchell v. Harmony, 13 How. 115 [ante, No. 762]. This means that the determination of the individual is subject to revision by a jury in an action, and is not conclusive on the owner of the house. ... But we are led by the dictum in Salem v. Eastern Railroad, 98 Mass. 431, to consider another possible suggestion. It may be said, Suppose that the decision of the board is not conclusive that the plaintiff's horse had the glanders, still the Legislature may consider that selfprotection requires the immediate killing of all horses which a competent board deem infected, whether they are so or not, and, if so, the innocent horses that are killed are a sacrifice to necessary self-protec tion, and need not be paid for. In Train v. Boston Disinfecting Co., 144 Mass. 523, it was held that all imported rags might be required to be put through a disinfecting process at the expense of the owner. Of course, the order did not mean that the Legislature or board of health declared all imported rags to be infected, but simply that the danger was too great to risk an attempt at discrimination. If the Legislature could throw the burden on owners of innocent rags in that case, why could it not throw the burden on the owners of innocent horses in this? If it could order all rags to be disinfected, why might it not have ordered such rags to be disinfected as a board of three should determine, summarily, and without notice or appeal? The latter provision would have been more favorable to owners, as they would have had a chance at least of escaping the burden, and it would stand on the same ground as the severer law. The answer, or a part of it, is this. Whether the motives of the Legislature are the same or not in the two cases supposed, it declares different things to be dangerous and nuisances unless disinfected. In the one it declares all imported rags to be so, in the other, only all infected rags. Within limits it may thus enlarge or diminish the number of things to be deemed nuisances by the law, and Courts cannot inquire why it includes certain property, and whether the motive was to avoid an investigation. But wherever it draws the line, an owner has a right to a hearing on the question whether his property falls within it, and this right is not destroyed by the fact that the line might have been drawn so differently as unquestionably to include that property. . . Still it may be asked, If self-protection required the act, why should not the owner bear the loss? It may be answered, that self-protection does not require all that is believed to be necessary to that end, nor even all that reasonably is believed to be necessary to that end. It only requires what is actually necessary. It would seem doubtful, at least, whether actual necessity ought not to be the limit, when the question arises under the Constitution between the public and an individual. Such seems to be the law as between private parties in this Commonwealth in the case of fires, as we have seen. It could not be assumed as a general principle, without discussion, that even necessity would exonerate a party from civil liability for a loss inflicted knowingly upon an innocent person, who neither by his person nor by his property threatens any harm to the defendant. It has been thought by great lawyers that a man cannot shift his misfortunes upon his neighbor's shoulders in that way when it is a question of damages, although his act may be one for which he would not be punished. Gilbert v. Stone, Aleyn, 35 [ante, No. 780], Scott v. Shepherd, 2 W. Bl. 892, 896 [ante, No. 782]. See Fairbanks v. Snow, 145 Mass. 153, 155. Upon this we express no opinion. It is enough to say, that in this case actual necessity required the destruction only of infected horses, and that was all that the Legislature purported to authorize. . . . |