NEWARK & S. O. H. R. Co. v. HUNT. The " supplement to an act entitled 'An act to establish a State board of health,' approved March 9, 1877," which supplement was approved March 12, 1880 (Laws 1880, p. 322), makes animals with contagious and infectious diseases common nuisances, and authorizes their destruction by certain officials under certain conditions. The "Supplement to an act entitled 'An act to prevent the spread of glanders in horses,' approved March 31, 1864," which supplement was approved March 12, 1884 (Supp. Rev. 8), makes horses affected by glanders common nuisances, and authorizes their destruction by certain officers. Held, (1) These acts, so far as they relate to glanders in horses, are within the police powers of the State. (2) They are not within the prohibition of the 14th amendment to the Federal Constitution, because although they authorize the abatement of such nuisances in advance of a judicial adjudication of the fact of nuisance, yet they do not make the determination of the officials as to that fact conclusive, and only permit their acts, in abating the nuisance, to be justified by proof of the actual existence of such nuisance. (3) The conditions under which such officials may act, under the act of 1880, are mere limitations on their power for the benefit of the property owner, and their adjudication that such conditions exist will not protect them, unless the existence of the common nuisance is shown.

ON demurrer. The action is in trespass, and by the

declaration defendants are charged with killing certain horses of plaintiff, to its damage, etc. The second, third and fourth pleas are special pleas. The second plea avers that defendants were duly appointed assistants of the State board of health, and that by law it was the duty of such assistants whenever any contagious disease should break out among animals in any locality, and it should appear in the judgment of such assistants that such disease was not likely to yield to any remedial treatment, to cause the animals affected by such diseases to be slaughtered; and that at the times, etc., the contagious disease known as "glanders" had broken out in plaintiff's stables in South Orange, and the horses in question were affected therewith, and said disease was not likely, in defendants' judgment, to yield to any remedial treatment; wherefore the defendants slaughtered, etc., said horses, as it was lawful for them to do, for the cause aforesaid. The third plea avers the due appointment of defendants as assistants of said board, and that by law it was the duty of such assistants, whenever any contagious disease should break out among animals in any locality, and it should appear, in the judgment of such assistants, that such disease threatened its spread to other animals, to cause the animals affected with such disease to be immediately slaughtered; and that at the times, etc., a contagious disease known as 'glanders" had broken out in plaintiff's stables, and the horses in question were affected therewith, and said disease, in the judgment of defendants, threatened its spread to other animals; wherefore defendants slaughtered said horses, as it was lawful, etc. The fourth plea avers the due appointment of the defendant Hunt as a member of said board, and of the defendant Hawk as an assistant thereof, and that by law it was the duty of each member of said board, whenever satisfied that any horse, etc., in this State was diseased with glanders, to cause such horse, etc., to be immediately slaughtered; and that at the times, etc., said horses were each diseased with glanders, and

said Hunt was satisfied thereof; wherefore said Hunt, in discharge of the duty imposed, etc., directed said Hawk, assistant as aforesaid, to destroy, and said Hawk, in compliance with such directions, did destroy said horses, as it was lawful, etc. Plaintiff filed a general demurrer to these pleas.

Argued at November Term, 1887, before the Chief Justice and Justices Dixon, Reed and Magie. Mr. Borcherling and C. Parker, for plaintiff. Attorney-General Stockton and Wm. S. Gummere, for

defendants.

MAGIE, J. The second and third pleas have evidently been based upon the provisions of the "Supplement to an act entitled 'An act to establish a State board of health,' approved March 9, 1887," which supplement was approved March 2, 1880 (Laws 1880, p. 322). The fourth plea has evidently been based upon the provisions of the "Supplement to an act entitled 'An act to prevent the spread of glanders in horses,' approved March 31, 1864," which supplement was approved March 12, 1884 (Supp. Rev. 8). If any specification of the causes of the demurrer were demanded and furnished, they have not been printed, and the only objections to the pleas which will be considered, are those which are shown in the brief of counsel.

The first objection seems addressed to the two pleas based upon the act of 1880. The contention is that the provisions of that act do not apply to horses. The first section of that act gave power to the State board of health to determine whether pleuro-pneumonia, rinderpest, or any other contagious or infectious disease existed among animals in any county in the State. From the enumeration of two diseases which usually afflict animals oi the bovine species, and from the fact that in a proceeding prescribed in the second section, notice is required from the owner of “said cattle," it is argued that the provisions of the act are to be restricted to animals ordinarily called "cattle," that is, to horned or neat cattle. But the word "cattle "is defined as including all domestic quadrupeds, such as horses, mules, etc., as well as oxen, cows, etc. Worcest. Dict., tit. "Cattle." It has been held to bear a legal significance which includes horses. Rex v. Puty. 2 W. Bl. 721. The word "animals," elsewhere used in every part of the act, has a signification broad enough to include horses. When the Legislature expressly gives power in respect to any contagious or infectious disease among animals, I see no reason to limit the intention within narrower bounds than will be set by the acceptance of the words giving power in their natural meaning. Thus accepted, a contagious disease affecting horses plainly comes within the intent of

the act.

It is next objected that the provisions of the act of 1884 cannot be resorted to in support of the fourth plea, because the trespass charged in the declaration is there said to have been committed on August 1, 1883. But the trespass is in fact charged in the declaration to have been committed on August 1, 1883, and on divers days and times between that day and the commencement of the suit which was in March, 1886. The act of trespass charged in the declaration is however one of a nature not possible to be continued. Laying a trespass of that nature with a continuando, or on divers days and times, was formerly bad on special demurrer. When so laid, upon objection made at the trial, the plaintiff was confined to evidence of a single trespass, but might prove any trespass committed before the commencement of the suit. Janson v. Brown, 1 Campb. 42, note 1. Since therefore under the declaration plaintiff could prove any killing of horses by defendants on any day prior to the commencement of the suit in March, 1886, defendants may properly set up the power conferred by the act of March 12, 1884.

as a justification for any killing which they admit after the latter date. The fourth plea does no more than this, and is not open to this objection.

It is next objected that the acts in question are within the prohibition of that clause of the fourteenth amendment of the Federal Constitution which reads: "Nor shall any State deprive any person of life, liberty or property without due process of law." This is the only constitutional objection urged, and no other has been considered. The power to abate any condition of things which from its injurious effect on public rights, public convenience or public morals, constituted a common nuisance, was a recognized part of the common-law scheme of government brought from England. In the complex system of government developed here, it is well settled that the States, under the powers called "police powers," may, by legislative action, define common nuisances, and declare what condition of things shall constitute such nuisances. It is equally well settled that the States have power to abate what are thus declared to be public or common nuisances; and that without making compensation to the owners of property thus interfered with or destroyed. Cooley Const. Lim., chap. 16; Mills Em. Dom., § 6. The fourteenth amendment does not impair the police powers of the States, when so exercised as to restrain equally all those affected, and when an equal opportunity to be heard is afforded before a judicial determination affecting personal rights or rights of property is made. Barbier v. Connolly, 113 U. S. 27; Wurts v. Hoagland, 114 id. 606. This court has sustained legislation, adopted under the police powers, where it gave authority to abate what was declared to be publicly injurious, by the destruction of property without compensation. Weller v. Snover, 42 N. J. L. 341; Shivers v. Newton, 45 iã. 469. The acts in question have evidently been passed in the exercise of the police powers of the State. By their terms there is disclosed a legislative intent to place in the category of common nuisances all animals having contagious or infectious diseases, and all horses having glanders; and this is recognized as within those powers. Thus, animals coming within the provisions of the act of 1880 may, under certain circumstances, be slaughtered and are required to be, in all cases, quarantined and subjected to the control and regulation of the board of health, while by the provisions of the act of 1884 all glandered horses are to be destroyed. It was probably within the power of the Legislature to have authorized any person to abate such nuisances by the destruction of such animals. But following the policy adopted in the fish acts and the milk act, which were discussed in the cases last cited, the Legislature wisely placed the power to abate in the hands of officials, who may be supposed to act under a due sense of their responsibility, as well to the property owner as to the public. It was within the power of the Legislature to authorize such officials to abate such nuisances without other prerequisites to the exercise of such authority, save the existence of the prescribed disease, of which they must of course primarily form a judgment. This is the scheme of the act of 1884, which gives to any member of the board of health authority to destroy horses having glanders if he is satisfied of the fact. The act of 1880 is more restricted, and only gives power to abate such nuisances when the officials judge that the disease (which by implication they have determined to exist, and to be contagious or infectious) is not likely to yield to remedial treatment or threatens to spread to other animals. But this judgment of the officials in respect to the virulence of the disease or its threatened spread, is not an adjudication upon the existence of a nuisance, for that the law has declared to exist whenever a disease of the specified kind exists. The requirement

that the officials, before proceeding to abate, shall form a judgment or opiniou respecting the probabilities of cure or the likelihood of the disease spreading, is in the nature of a limitation on the officials' power in favor of the property owner, and to afford him an opportunity, under certain circumstances, to retain property which is in fact a common nuisance, and which might justly be required to be abated.

Plaintiff however contends that the determination of the officials that the prescribed disease exists, is to be made without notice to the property owners, and without affording them an opportunity to be heard, and on this ground claims that these acts are obnoxious to the constitutional provision invoked. If the Legislature by these acts has made the determination of these officials, as to the existence of the common nuisance, a conclusive adjudication upon the rights of the property owner, then it is perfectly obvious that this legislation cannot be supported. It has been settled in this State that it is not within the power of legislation to impart to a determination of this sort a conclusive character as against the property owner, and legislation intending that result was held to be futile. Hutton v. Camden, 39 N. J. L. 122. An examination of the acts in question clearly shows that there was no intent in the legislative mind to make the conclusions of the officials decisive of the right of the property owner, nor to the existence of that condition of things which these acts declared should constitute in these cases a common nuisance, and would justify its abatement by the destruction of the animals diseased. The right of the property owner is not thereby barred on the one hand; nor is the justification of the officials made effective on the other hand by reason of their adjudication, but by reason of the fact that the common nuisance declared by the acts existed, and so existed as to permit the officials to exercise the power of abatement. What the acts authorize is the abatement of an actual nuisance. They afford no protection to any invasion of the rights of property in any other case. There is nothing in the decision in Hutton v. Camden, supra, nor in the learned and well-considered opinion of the chief justice, which gives the least countenance to the notion that the legislation may not authorize the abatement of a common nuisance until after its character as a nuisance has been determined in a judicial proceeding, with the safeguards of notice and opportunity to the property owner to be heard. Such a doctrine, enforced by the courts, would interpose an almost absolute barrier to the praiseworthy efforts everywhere made to prevent preventible disease, and to stamp out contagion and infection affecting public health and comfort, and would render much of the health legislation of to-day of no avail. But I think it cannot be claimed that the rights of a property owner will be improperly interfered with by legislation authorizing the abatement of nuisances of this character, although in advance of a judicial adjudication, provided such an adjudication, with notice and full opportunity to be heard, is not denied, but may be evoked and compelled. As has been said in this court, every property owner holds the title to his property subject to the paramount consideration of the health and safety of the public, and the power of the Legislature to fix upon it, when in certain conditions, the brand of noxiousness to public safety or health. If his property, in common with other property of the same sort, has been legally declared to be subject to destruction when in certain conditions noxious to the public, he cannot complain of its destruction if it was in fact in those conditions. It has never been pretended that the fourteenth amendment worked the abolition of the common-law rule which justified any one specially affected by a nuisance in abating it without waiting

for an adjudication that it was a nuisance which he might abate, but unless the fact of the nuisance was established by proof, he was liable to the aggrieved property owner as for an unwarranted trespass. The amendment was in my judgment likewise ineffectual to prevent the State from providing, under its police powers, for the immediate abatement of public nuisances actually existing, though not yet judicially adjudged nuisances. In such case the officer intrusted with the power of abatement could not be protected if he destroyed property without the existence of those conditions which make it a common nuisance and justify its destruction. But if the property owner is not deprived of a right to contest the existence of such conditions, and to obtain redress as for a trespass, if they are not shown to have existed, such legislative acts would not infringe any constitutional provision. These acts, being of the character above indicated, are not open to this objection. The pleas in question are drawn in conformity with the construction I have thus put on the acts. While they severally aver the judgment of defendants as to the existence, virulence and probability of the spread of the disease-which averment seems necessary because otherwise the power to abate the nuisance was not granted-they place the justification of defendants upon the existence in the horses destroyed of a contagious disease called glanders. This fact, if true, made the horses a common nuisance, and justified their destruction under the circumstances. The matter was therefore presented for judicial determination, and by plaintiff's taking issue on the pleas, an adjudication could have been compelled. The demurrer admits the justification, and the pleas are a complete answer to the case made in the declaration.

One objection still remains to be considered. Plaintiff contends that on a proper construction of the acts of 1880 the adjudication that the disease is not likely to yield to remedial treatment, or threatens to spread to other animals, is to be made by the board of health and cannot be made by the assistants. The language of section 3 (which gives the power) does not in my judgment admit of such a construction. Its reasonable construction devolves the power to slaughter upon the assistants of the board, upon their judgment that the disease is not likely to yield to remedial treatment or threatens to spread.

For these reasons I conclude the pleas must be sustained and the defendants have judgment on the de

murrer.

NEW YORK COURT OF APPEALS ABSTRACT.

CARRIERS-OF GOODS-LIABILITY FOR LOSS-CHANGE IN CONTRACT.-A common carrier contracted with the purchaser to transport certain iron, which contract was evidenced by a letter from the purchaser to the carrier, accompanied by an order to the seller for the delivery of the iron. Under the order the carrier got possession of the iron, and loaded it on a canal-boat, and delivered to the seller a bill of lading which he forwarded to the purchaser. The bill of lading modified the carrier's liability under the original contract. On the same day, by the sinking of the boat, the iron was lost. Held that the carrier could not defend under the bill of lading against a recovery of the value of the iron by the purchaser, in the absence of evidence of a course of business between the parties, or of a custom sanctioning such an interpretation of the original contract. Before the letter was written the plaintiff's agent called on the defendants, who were carriers, and inquired if they would take the iron to Pittsburgh, and at what rate, and the defendants agreed to take it at the rate of $3 per ton, including

insurance. The letter of April 20 was then addressed by the plaintiffs' agent to the defendants, the body of which is as follows: "DEAR SIRS: We hand you herewith delivery order for 25 tous iron, ex. str. Lepanto, which you are to ship to Mess. Park Brother & Co., Pittsburgh, Pa., per canal to Buffalo, and thence per rail via A. V. R. R. Co., at $3 per gross ton, including insurance and all charges." If the goods are lost under circumstances which render the carrier liable by the general rule of law, the carrier must respond unless he can show that there was a special acceptance equivalent to a contract, which exempts him from the ordinary liability of common carriers in the particular case. Dorr v. Navigation Co., 11 N. Y. 485; Blossom v. Dodd, 43 id. 264; Madan v. Sherard, 73 id. 330. The defendants having acted upon the letter of April 20, and acquired possession of the goods by means of the delivery order inclosed, there was apparently a complete contract for the carriage of the iron. It may be assumed that it was contemplated that a bill of lading would be sigued when the iron was shipped. This would be according to the usual course of business. But we do not perceive that this justifies an inference that it was open to the defendants to insert therein clauses restrictive of the usual liability of carriers, especially in the absence of any evidence of a course of business between the parties, or of any custom or usage sanctioning such an interpretation of the preceding negotiations. Feb. 28, 1888. Park v. Preston. Opinion by Andrews, J.

MARRIAGE-DIVORCE-JURISDICTION-WAIVER of OBJECTION.-A wife, resident in Texas, brought suit for divorce against her husband, resident in New York, after her husband had instituted a suit against her for divorce. In her suit she obtained personal service on him in New York. He went to Texas, and

and after his motion to quash the service had been

overruled, answered to the merits, and asked for and obtained a continuance to prepare for trial. On the affirmed by the highest court of the State. Held, that trial judgment was rendered for the wife, which was by personally appearing and contesting the cause on the merits, the husband waived the invalidity of the personal service outside of the jurisdiction of the court issuing the same, and the divorce granted there, was valid. In the determination of the question whether the Texas court acquired jurisdiction of the person of the defendant in the action, it must be conceded at the outset that the service of the citation upon the defendant here, who at the time was a resident and citizen of New York, owing no allegiance to the State of Texas, was utterly void and ineffectual as a means of giving the courts of Texas jurisdiction of the defendant. The processes of courts run only within the jurisdiction which issues them. They cannot be served without the jurisdiction, and courts of one State cannot acquire jurisdiction over the citizens of another State, under statutes which authorize a substituted service, or which provide for actual service of notice without the jurisdiction, so as to authorize a judgment in personam against the party proceeded against. This question has recently been considered in several cases in this State, with a fulness of argument and illustration which leave nothing to be said, and it is sufficient to refer to the decisions. Kerr v. Kerr, 41 N. Y. 272; Hoffman v. Hoffman, 46 id. 30; Hunt v. Hunt, 72 id. 217; People v. Baker, 76 id. 78; O'Dea v. O'Dea, 101 id. 23. It cannot be doubted therefore that the Texas court did not acquire jurisdiction of the defendant in the action by the service of the citation here, or that if the defendant had remained silent, taking no notice of the proceeding, no valid judgment could have been rendered against him. The contract of marriage cannot be an

nulled by judicial sanction any more than any other contract inter partes, without jurisdiction of the person of the defendant. The married relation is not a res within the State of the party invoking the jurisdiction of a court to dissolve it so as to authorize the court to bind the absent party, a citizen of another jurisdiction, by substituted service or actual notice of the proceeding given without the jurisdiction of the court where the proceeding is pending. Folger, J., Hunt v. Hunt, supra; Cheever v. Wilson, 9 Wall. 108; O'Dea v. O'Dea, supra. But notwithstanding the ineffectual proceeding to acquire jurisdiction of the defendant by the service of notice in this State, it was nevertheless competent for the defendant by a general appearance in the action, or other equivalent act, to submit to the jurisdiction of the Texas court, and thereby bind himself by the judgment pronounced. Jurisdiction of the person may be acquired by consent, although not of subject-matter, and it is well settled that a general appearance of a defendant in an action is equivalent to personal service of process. It is claimed that the defendant, by appearing in the Texas court and putting in an answer, and proceeding to trial on the merits, and subsequently appealing from the judgment, waived defective service of process and gave jurisdiction of his person, notwithstanding his appearance in the first instance was for the special purpose of objecting to the jurisdiction, and the subsequent proceedings on his part were accompanied with a protest against the jurisdiction. In Avery v. Slack, 17 Wend. 85, it was held that a party who appeared and objected to the validity of process, did not waive the objection by answering and going to trial on the merits after his objection had been overruled. The principle has been applied in a great variety of cases, and there is substantial uniformity in the decisions to the effect that a party not properly served with process so as to give the court jurisdiction of his person, does not waive the objection or confer jurisdiction by answering over and going to trial on the merits, after he has ineffectually objected to the jurisdiction aud his objection has been overruled. Harkness v. Hyde, 98 U. S. 476; Steam-Ship Co. v. Tugman, 106 id. 118; Warren v. Crane, 50 Mich. 301; Dewey v. Greene, 4 Denio, 94; Walling v. Beers, 120 Mass. 548. It is contended however that the error in overruling the objection to the jurisdiction, when the party subsequently answers over and proceeds to trial on the merits, can only be corrected by a direct proceeding on error or appeal, and that the judgment, when the party has appeared and gone to trial on the merits, cannot be assailed collaterally for want of jurisdiction. Most of the cases which declare the doctrine that an answer and trial on the merits does not preclude a party who has objected to the jurisdiction from subsequently insisting that the court had no jurisdiction of the person, were cases on appeal or error. The principle upon which the doctrine proceeds is that a party who has objected to the jurisdiction, and whose objection has been overruled, is not bound, as was said by Harlan, C. J., in Steamship Co. v. Tugman, supra, "to desert the case, and leave the opposite party to take judgment by default." It is difficult to see why a party, proceeding under such circumstances, should be permitted to raise the question on error, and not be permitted to assail the judgment collaterally in another State, where the judgment is set up as a binding adjudication. The court does not acquire jurisdiction over the person by deciding that it has jurisdiction. If the acts of the defendant do not constitute a legal waiver of the objection, or a submission to the jurisdiction so as to preclude raising the question on error in the State where the judgment is rendered, how can the same acts preclude the party from raising the question in another State in answer to the

judgment? But passing the question, we think the judgment of the Texas court became and is a binding adjudication on the defendant therein, for the reason that the defendant, by going to Texas and filing an answer in the action, became bound by the statute law of the State prescribing the effect of that proceeding, and that by the Texas law the filing of an answer by a defendant is an appearance and submission to the jurisdiction. The Statutes of Texas (art. 1234) authorize a non-resident defendant to be brought in by service of notice out of the State, and when so served he is required to appear and answer in the same manner as if he had been personally served with a citation within the State. By article 1242," the filing of an answer shall constitute an appearance of the defendant so as to dispense with the answer and service of the citation upon him." It is clear that a State cannot, by a statute, give jurisdiction to the courts over a citizen of another State, not served with process within the jurisdiction, and who does not appear in the action; at least a judgment rendered pursuant to such a statute, upon substituted service, would be void in every other jurisdiction. But as was said in Parsons, C. J., in Bissell v. Briggs, 9 Mass. 464, a citizen of a State going into another State owes a temporary allegiance to that State, and is bound by its laws and is amenable to its courts. The defendant in the Texas action was not bound to appear. He could stand aloof, and so long as he did so, could not be affected by the proceeding. But he chose to avail himself or the right given by the laws of Texas to file an answer and contest the claim of the plaintiff. He went within the jurisdiction, and was represented by attorneys there. He voluntarily filed his answer, after first seeking to dismiss the case for want of jurisdiction over his person. The effect of this proceeding was declared by statute to be equivalent to an appearance in the action, and to dispense with the service of a citation. The defendant was bound by the consequences which the statute affixes to that proceeding. He cannot invoke the general rule that an answer on the merits does not waive an objection to jurisdiction, because the statute in this case had intervened, and of this statute the defendant had notice. Feb. 28, 1888. Jones v. Jones. Opinion by Andrews, J.

PARTNERSHIP-LIMITED-FAILURE TO RECORD CERTIFICATE.-The New York Revised Statutes, in relation to limited partnerships (§ 6) provide that the certificate required by law to be made by those forming a limited partnership shall be filed in the office of the county clerk, and shall be recorded by him in a book to be kept for that purpose, open to public inspection. Defendants filed such certificate, but the county clerk failed to record it. Held, that defendants were not required by such statute to see that the certificate was recorded, and that they were not liable as general partners by reason of such failure of the county clerk. In many counties in the State the clerk is largely behind in the matter of the actual, physical recording of papers left in his office therefor. In this very county, where this court now sits, the clerk has been from one to three months behindhand; and is it fair to those who are desirous of forming a limited partnership to so construe the statute that although they may desire to commence business on the 1st of January, and for that purpose file their certificate on the 31st of December previous, yet they shall not be deemed to have thus formed such partnership, because the clerk has not recorded the certificate, and which perhaps he may not record until three months thereafter? It is said that there are not a great many of this class of papers left for record, and that therefore they might be recorded with great dispatch. Undoubtedly they