R. W. BOLAND, Respondent,
v.
W. J. CECIL, as Director of Agriculture, etc., et al., Appellants.
California Court of Appeals.
Robert W. Kenny, Attorney General, and Eugene M. Elson, Deputy Attorney General, for Appellants.
Lewis D. Collings and Amos Friedman for Respondent.
KINCAID, J. pro tem.
For some three years prior to April 3, 1943, plaintiff lived on and owned real property in El Monte, California, consisting of approximately one-half acre. He kept various kinds of livestock thereon. On April 2, 1943, he slaughtered a cow on said premises. He was not a licensed slaughterer (Agr. Code, 346-347), and the animal [
Plaintiff contended, and the trial court found from the evidence, that the meat from the animal so slaughtered was intended by plaintiff to be consumed by himself and family, and that excess portions thereof not so consumed were intended by him to be disposed of to persons in his locality, pursuant to the provisions of sections 307 and 356, Agricultural Code; that, at the time of such seizure, no part of such meat had been sold or delivered to any third person, and, while no tags or sales memoranda had been affixed thereto, the plaintiff intended to affix same to such portions of the meat as might be disposed of by him in his locality.
Plaintiff takes the position, and the trial court seems to have held with him, that he was privileged to slaughter the said cow under the circumstances and conditions above set forth, pursuant to the exceptions contained in the said sections 307 and 356, and that his case falls within the provisions of both said sections. The pertinent parts of section 307 are as follows: "Nothing in this article restricts or prohibits: (a) [Slaughter by live stock producer.] A live stock producer from slaughtering animals on his own premises that are a part of his own herd for his own consumption or from disposing of the carcasses and products of those animals thus slaughtered; provided, they can be identified as such, and are sound, healthful, wholesome, and fit for human food, and are disposed of in his locality; when cattle, sheep, swine or goats are sold by said producer in the vicinity where produced and slaughtered there shall be attached to said meat or meat products a statement giving substantially the following: [Certificate.] I hereby certify that the uninspected meat (or meat products as the case may be) to which this certificate is attached is from animals slaughtered by the undersigned, a farmer, on his farm, and that at this date it is sound, healthful, whole-some, [
A casual reading of these sections might well lead to the belief that they are practically similar, and are exceptions to the same code requirements, with section 356 being so much broader as to render section 307 useless. A more careful study of them reveals marked dissimilarities, and that they do not necessarily conflict.
Section 307 is contained in article 1 of division 3, chapter 1, of the Agricultural Code, and deals exclusively with the subject of "meat inspection" of slaughtered animals. It constitutes an exception to the necessity of compliance with the inspection of meat laws as in said article 1 otherwise provided. Section 356 is contained in article 3, of said division and chapter, and, while said article is entitled "Marks and Brands," its contents are not limited to that subject, as certain provisions thereof deal with the matter of the licensing and regulating of slaughtering of animals. Section 346 requires a license to slaughter a bovine animal, and section 356 is an exception to such slaughtering license requirement. The evidence supports the court's finding that plaintiff has brought himself within the provisions of section 356.
Even though one who is a resident of a county of over 28,000 in population complies in every particular with section 356, thus bringing himself within the exemption from the requirement of having a slaughtering license, he, nevertheless, would violate the provisions of article 1, requiring an inspection of the meat, unless he is a "live stock producer." Only the latter are exempted from inspection regulations under section 307, and the plaintiff can claim the benefit thereof only if the evidence in the case supports the court's [
[1] "Livestock" is defined by Webster's New International Dictionary, second edition, as "Domestic animals used or raised on a farm, especially those kept for profit." "Producer" is defined as "One who produces, brings forth, or generates." Section 307 does not limit itself to cattle as does section 356, but includes all animals that are a part of the livestock producer's own herd. Viewing the evidence, as we must, most favorably in support of the finding that plaintiff is a livestock producer, the record discloses that plaintiff had, for several years prior to April 2, 1943, been raising chickens, rabbits, pigs, sheep, ducks and cattle on his premises. On April 2, 1943, in addition to other types of animals and fowls, he had on said premises twelve head of cattle, including two calves and seven heifers; that, while two calves had been born on his place, he bought many day-old calves and raised them there. The defendant Greenan testified that on April 3, 1943, the occasion of his first visit to plaintiff's place, he saw thereon a milk cow, a number of calves, five or more heifers, pigs, a sheep, and a horse. From the foregoing, even though other conflicting evidence was before the court, we cannot say that there was not sufficient evidence upon which the trial judge could properly base a finding that plaintiff was a livestock producer.
[2] Another prerequisite to the application of the exemption from inspection regulations under section 307 is that the animals so slaughtered by the producer on his own premises "are a part of his own heard." Therefore, the plaintiff herein can claim the benefit of such section only in the event the evidence in the case supports the court's finding that the cow in question was a part of his own herd at the time it was killed. "Herd" is defined as "A number of beasts assembled together; ... more than a few, of cattle, sheep, horses or other animals of the larger sorts, assembled and kept together as one drove and under one care and management." (39 C.J.S. 891.) To become a part of one's own herd, then, would only require that the animal be owned by the herd owner and be mingled and kept with the other animals in one drove and under individual care and management. As a general proposition, it would seem that, in order to become a part of a herd, no particular period of time must elapse before an animal can be considered as included in such herd. Nor is it necessary, in [
When construed, however, with the exemption from inspection provisions of section 307, the Legislature must have intended that the phrase "a part of his own herd" be given a more strict construction in consonance with its efforts to protect public health. The very purpose of requiring the inspection of meat prior to its disposition is to protect public health. The exception in favor of a producer, wherein under certain conditions he may, in lieu of such inspection, substitute his own certificate as to the healthfulness and wholesomeness of such meat slaughtered by him, was not intended by the Legislature as a means of weakening this protection to the public. As an exception to the general statutory requirement, it must be strictly construed. (Merchants Nat. Bank v. Continental Nat. Bank (1929),
[3] As to what is such a reasonable period of time during which such animal must have been in the producer's possession and subject to his observation is a question of fact to be determined by all of the surrounding circumstances. The length of such period would vary with changing conditions. [
[4] By its express finding that the cow in question was a part of the producer's own herd at the time it was killed, and that it was slaughtered in compliance with section 307, the trial court must be deemed to have considered this question of fact and to have resolved the same in favor of plaintiff. Viewing the evidence most favorably in support of such finding, the record discloses that such cow had been purchased by plaintiff from Dolan's Dairy thirty-five days before she was slaughtered; that for the first 30 days of such period he had kept the cow on the premises of Dolan's Dairy and he brought her to his place five days before April 2, 1943, the date when she was killed; that he visited her twice a day for the purpose of feeding her during such thirty-day period, and fed her at his place during the remaining five days. He established her age to be between seven and nine years, and he bought her for a milk cow, believing her to be carrying a calf. He decided to slaughter her for meat when he found she was barren of calf. He knew that she came from and had been a part of a dairy herd of Dolan's Dairy and that such herd was regularly inspected under the state laws requiring periodical tuberculosis tests; that such cow had been a part of Dolan's herd for almost a year prior to her purchase by plaintiff; that plaintiff had been attending his herd on his premises for some two years; that he knew flukes, tapeworms, parasites and cysts when he saw them and knew when an animal was healthy or unhealthy. This evidence is sufficient to support the inferential finding that the cow in question had been in the producer's possession and subject to his observation for a sufficient length of time, and that his experience was such as to enable him to ascertain that the animal was healthy and that it could be properly slaughtered under the provisions of section 307 without endangering public health. Such a cow would be deemed to be "produced" by the producer for the purposes of section 307 without requiring her to have been born to his ownership or to have been raised or fattened by him for any particular or definite time.
[5] Whenever an officer seizes property unlawfully, even though under color of his office, an action for damages may be [
[6] "Where it is doubtful in what capacity a party sues or is sued, reference may be had to the entire complaint." (47 C.J. 176; Henry v. Willett (1922),
[7] The principle is fundamental that the state may not be sued without its consent. (23 Cal.Jur. 578; 59 C.J. 307.) While the general rule that a state cannot be sued without its consent cannot be evaded by the instituting of an action against state officials or agencies when the real claim is against the state itself, for such "rule to apply the relief asked must involve some direct or substantial interest of the state, as a distinct entity, apart from the mere interest a state may have in the welfare of its citizens or the vindication of its laws." (59 C.J. 308.) The relief here sought, at least to the extent of demanding the return of plaintiff's meat which was wrongfully taken by the defendant state officials, acting in their official capacity, is not such as to "involve some direct or substantial interest of the state." As was said in the case of Louisville & N.R. Co. v. Bosworth,
Insofar as the plaintiff's suit seeks to recover from the state officers the possession of his wrongfully-taken and withheld meat, the action is maintainable. [8] Having elected to sue the defendant state officers in their official capacity only, and not in their individual capacity, plaintiff is limited in his possible recovery herein to a judgment for possession of the meat. The alternative judgment for the value thereof, and for damages for its detention, cannot be upheld. This is not a case in which liability can attach to the state for such monetary judgment. Under the judgment rendered, no execution for the value or for damages for the detention could issue or be levied against the defendants in their individual capacity. Any such levy would of necessity be directed against the state treasury.
[9] It would be error to award court costs against the state in the absence of an express statutory enactment authorizing [
[11] Whether or not the plaintiff was raising or producing livestock on his premises, in violation of a county zoning ordinance, was immaterial to the issues presented. The trial court properly sustained an objection to the offer of proof of such evidence.
The judgment is modified by striking out "and in case possession of said property cannot be had, then its value, which is fixed at the sum of Three Hundred Forty-three ($343.00) Dollars, and in either case the sum of Sixty-One and 85/100 ($61.85) Dollars as damages for its detention," and as so modified, the judgment is affirmed. Neither side to recover costs on appeal.
Fox, J., concurred.
SHAW, P. J.
I dissent. I concur in all the foregoing opinion except its holding that the cow in question was a part of plaintiff's "own herd." I think some further limitation should be put upon the meaning of the phrase "a part of his own herd," as used in section 307 of the Agricultural Code. If it requires merely the presence of the animal on the producer's premises and under his observation for a reasonable time to become familiar with it, the finding that such a time had elapsed in this case when the cow was slaughtered is probably supported by the evidence. But on reading section 307 with its evident purpose to protect the public in mind, and looking for some more definite statement in explanation of the term "his own herd," I find that only a "live stock producer" is entitled to the exemption from inspection provided by subdivision (a). It is reasonable to suppose that such producer is related to "his own herd" as a producer, [