STANISLAUS COUNTY DAIRYMEN‘S PROTECTIVE ASSOCIATION (a Voluntary, Unincorporated Association) et al., Appellants, v. COUNTY OF STANISLAUS (a Political Subdivision) et al., Respondents.
Sac. No. 4972
In Bank
February 27, 1937.
Rehearing denied March 29, 1937.
8 Cal. 2d 378
The judgment is reversed.
Shenk, J., Thompson, J., Seawell, J., Curtis, J., Edmonds, J., and Waste, C. J., concurred.
Rehearing denied.
Leslie A. Cleary, District Attorney, and Frank B. Collier, Deputy District Attorney, for Respondents.
CURTIS, J.—This action, originally appealed to this court, was transferred by our order to the District Court of Appeal for the Third District. That court rendered its decision affirming the judgment of the trial court. A petition for hearing by this court after said decision was later granted. While we are in accord with thе conclusion reached by the District Court of Appeal, we are not in entire agreement with said court in all that was said in said opinion. We therefore adopt as the opinion of this court the opinion rendered by the District Court of Appeal with such changes or modifications as we think necessary to express our views upon the legal questions present in the case. Such changes or modifications as we have made in the opinion as rendered by the District Court of Appeal are set off in brackets from those portions of the original opinion which we have adopted.
The opinion as changed or modified by us is as follows:
The plaintiffs have appealed from a judgment which was rendered against them upon an order sustaining a demurrer to a complaint without leave to amend the pleading. The action was brought to enjoin the officers of the Stanislaus County Voluntary Tuberculosis Control Area from enforcing an ordinance of that district authorizing the inspecting, condemning or slaughtering of dairy cattle infected with tuberculosis. It is contended the ordinance is unconstitutional and void for the reason that it is in conflict with the Agri
It is contended the demurrer was improperly sustained for the reason that the facts which are alleged show that the cоunty ordinance is unreasonable, discriminatory and void, and that evidence may be adduced to prove that an act which may appear on its face to be valid is, nevertheless, void. It is stated in 2 McQuillin on Municipal Corporations, page 732, section 766, in that regard:
“It is well settled that in case of an act of the legislature, or of a municipal ordinance which has been expressly ratified by the legislature, evidence may not, as a general rule, be introduced for the purpose of showing that the statute or ordinance is unreasonable, and therefore unconstitutional, while in the case of an ordinance or municipal regulation adopted under authority of the legislature, but not specially ratified after adoption, it may be attacked on the ground that it is unreаsonable, and to support this claim evidence may be introduced.”
Conceding that a different rule prevails in that regard in determining whether a county ordinance is unreasonable and void from that which applies with relation to the ordinance of a city which is enacted under an express delegation of authority contained in a charter which has been approved by the legislature, still we are of the opinion the present county ordinance does not appear to be unreasonable or discriminatory. The mere allegations of conclusions with respect to the purpose or result of an ordinance are not binding on a court in the construction thereof. The ordinance itself is clear with respect to its purpose and procedure.
The County of Stanislaus was granted authority to adopt local, police, sanitary or other regulations not in conflict with general laws. (
In determining whether the ordinance is unreasonable, discriminatory or oppressive, and therefore void, thе intent and object of the legislation should be ascertained, if possible, from the act itself. In 59 Corpus Juris, page 961, section 571, it is said in that regard:
“In construing a statute to give effect to the intent or purpose of the legislature, the object of the statute must be kept in mind, and such construction placed upon it as will, if possible, effect its purpose and render it valid.”
But the purpose and spirit of the act should also be considered. In 59 Corpus Juris, page 964, section 573, it is said:
“In pursuance of the general object of giving effect to the intention of the legislature, the courts are not controlled by the literal meaning of the language of the statute, but the spirit or intention of the law prevails over the letter thereof, it being generally recognized that whatever is within the spirit of the statute is within the statute although it is not within the letter thereof, while that which is within the letter, although not within the spirit, is not within the statute. Effect will be given the real intention even though contrary to the letter of the law. The rule of construction according to the spirit of the law is especially applicable where adherence to the letter would result in absurdity or injustice, or would lead to contradictions, or would defeat the plain purpose of the act . . . When the law is free and clear of ambiguity, the letter of it is not to be disregarded on the pretext of pursuing its spirit.”
It is asserted
“Where the legislature has assumed to regulate a given course of conduct by prohibitory enactments, a municipality with subordinate power to act in the matter may make such new and additional regulations in aid and furtherance of the purposes of the general law as may seеm fit and appropriate to the necessities of the particular locality, and which are not in themselves unreasonable. (Mann v. Scott, 180 Cal. 550, 556 [182 Pac. 281].) . . . Whether the legislature has undertaken to occupy exclusively a given field of legislation is to be determined in every case upon an analysis of the statute and the facts and circumstances upon which it was intended to operate.”
After comparison of the Stanislaus County ordinance with the
“The department may establish and maintain tuberculosis control areas within this state, wherein said department shall examine and tuberculin test all dairy cattle, and, with the consent of the owner, such beef cattle as he may specify, as often as may be deemed necessary, in order to determine which
animals are affected with tuberculosis. Any tuberculosis control area shall consist of one or more entire counties.”
This provision is followed by
“In any county which has not been established by the department as a tuberculosis control area as provided in the preceding section, the board of supervisors of such county may, by ordinance, declare any portion of said county a voluntary tuberculosis control area, for the purpose of eradicating bovine tuberculosis therein; the same to continue, as such, only until the department shаll establish such county as a tuberculosis control area.
“The county livestock inspector shall, subject to the supervision of the director, examine and tuberculin test all dairy cattle within such voluntary tuberculosis control area, as often as may be deemed necessary, in order to determine which animals are affected with tuberculosis.
“The board of supervisors of such county shall provide by ordinance for the formation, regulation, and operation of all such voluntary tuberculosis control areas, as may be so established within such county, necessary to accomplish the object of this section. The provisions in this code for payment of indemnity shall not apply to any voluntary tuberculosis control area established by authority of this section.”
It is alleged the bоard of supervisors of Stanislaus County enacted ordinance number 170 pursuant to the provisions of
The complaint then alleges that the board of supervisors of Stanislaus County enacted ordinance number 171, on February 25, 1935, which ordinance is also referred to as exhibit “B” and made a part of the pleading. This ordinance appears to conform to the requirements of
The first ordinance created the district. The second one provided the authority and procedure for eradicating tuberculosis from dairy cattle within that area. This right also is given to said county by the terms of the
[Since it does not appear that Stanislaus County was included by the agricultural department in any tuberculosis control district within the state, it is clear that the county had a right to organize such a district within its own borders. In fact, as we have seen, this right is expressly given said county by the terms of the
The appellants suggest that the Stanislaus ordinance conflicts with the
“The provisions in this code for payment of indemnity shall not apply to any voluntary tuberculosis control area established by authority of this section.”
[In view of the fact that no tuberculosis control district has been established by the department of agriculture in the County of Stanislaus, we are not concerned with the problems as to whether the
We are of the opinion the ordinance is not void because it purports to delegate certain discretionary authority in testing, segregating or slaughtering cattle which are infected with tuberculosis. The ordinance is evidently intended as a police and sanitary measure adopted under the provisions of
“III. All bovine animals within the voluntary tuberculosis control area herein created shall be tuberculin tested by the county livestock inspector or veterinarians as often as, in the opinion of said livestock inspector or veterinarians, as may be deemed necessary to accomplish the purpose of this ordinance . . .”
“IV. Each reactor shall . . . be marked . . . under the supervision of the county livestock inspector or a veterinarian . . .”
“V. Any bovine animal in Stanislaus County reacting positively to a tuberculin test conducted by a veterinarian or the livestock inspector . . . shall immediately be segregated . . . and shall be slaughtered within 30 days . . . under supervision of a federal, state, or state approved municipal meat inspector.”
“VI. After removal of reactors the premises occupied and used by the reactors must be cleaned and disinfected by the owners thereof at their expense, to the satisfaction of a veterinarian or the county livestock inspector.”
For the purpose of enforcing this ordinance the county livestock inspector or county veterinarians are constituted the agents or officers of that district.
Regarding the right of the legislature to delegate to administrative boards or officers the authority to adopt reasonable rules or methods of supervising or regulating a business or enterprise within the general purpose for which the statute is enacted, the language used in the case of Fillmore Union High School District of Ventura County v. Cоbb, 5 Cal. (2d) 26 [53 Pac. (2d) 349], appears to answer the appellants’ objections to the ordinance which is involved in this case. That opinion says in that regard:
“It is a well-established rule of law that authority may be delegated by the legislature to administrative boards or officers to adopt reasonable rules and terms to carry out the general purpose for which a statute is enacted, even though the delegated power confers a discretion or the necessity of determining terms, qualifications, or facts upon the board or officer within the scope of the legislative act. (6 R. C. L., p. 179, sec. 179; 5 Cal. Jur., p. 683, sec. 97; 1 Cooley‘s Const. Lim., p. 228;
School District No. 7, etc., v. Hunnicutt, (D. C. Okl.) 51 Fed. (2d) 528; People v. Kuder, 93 Cal. App. 42 [269 Pac. 198]; In re Halck, 215 Cal. 500 [11 Pac. (2d) 389]; Ex parte McManus, 151 Cal. 331, 335 [90 Pac. 702]; In re Weisberg, 215 Cal. 624 [12 Pac. (2d) 446, 450].) In 1 Cooley‘s Constitutional Limitations, eighth edition, page 231, it is said in that regard: “‘Boards and commissions now play an important part in the administrаtion of our laws. The great social and industrial evolution of the past century, and the many demands made upon our legislatures by the increasing complexity of human activities, have made essential the creation of these administrative bodies and the delegation to them of certain powers. Though legislative power cannot be delegated to boards and commissions, the legislature may delegate to them administrative functions in carrying out the purpose of a statute and various governmental powers for the more efficient administration of the laws.’
“In the case of In re Weisberg, supra, in upholding a statute authorizing the state fire marshal to license certain establishments for sponging and pressing garments, the Supreme Court said with respect to these delegated powers:
“‘We find no merit in petitioner‘s сlaim that the act confers arbitrary and uncontrolled power upon the state fire marshal to determine the persons entitled to pursue and the conditions upon which they may conduct the regulated business. This contention is sufficiently answered by Carter v. Stevens, supra, 211 Cal. 281, 289-293 [295 Pac. 28], and Gaylord v. City of Pasadena, 175 Cal. 433, 436 [166 Pac. 348, 349]. As stated in the latter case, “it has become increasingly imperative that many quasi-legislative and quasi-judicial functions, which in smaller communities and under more primitive conditions were performed by the legislative or judicial branches of the government, are intrusted to departments, boards, commissions, and agents. No sound objection can longer be successfully advanced to this growing method of transacting public business. Those things must be done in this way or they cannot be done at all, and their doing, in a very real sense, makes for the safety of the republic and is thus sanctioned by the highest law. For, as the Supreme Court of the United States declares: ‘Indeed, it is not too much to say that a denial to Congress of the right, under the Constitution, to delegate the power to determine some fact or the state of
things upon which the enforcement of its enactment depends would be “to stop the wheels of government” and bring about confusion, if not paralysis, in the conduct of the public business.’ (Union Bridge Co. v. United States, 204 U. S. 364, 367 [27 Sup. Ct. 367, 51 L. Ed. 523].)“‘”
There is nothing in the able opinion of Mr. Chief Justice Hughes in the case of Panama Refining Co. v. Ryan, 293 U. S. 388 [55 Sup. Ct. 241, 79 L. Ed. 446], commonly called the “hot oil” case, upon which the appellants rely, in conflict with the authorities from which we have previously quoted. Moreover, the appellants are assailing
[However, it will be noted that the ordinance of the board of supervisors of Stanislaus County (sec. III) provides that bovine animals within the district created by said ordinance shall be tuberculin tested by the county livestock inspector, or veterinarians, as often, in the opinion of said livestock inspector, or veterinarians, as may be deemed necessary to accomplish the purpose of the ordinance. It will be noted that by this ordinance the right to test bovine animals is given to veterinarians as well as to the livestock inspector, while by the terms of
The ordinance does not unlawfully discriminate between the owners of beef cattle and dairy cows in violation of
The ordinance does exempt beef cattle from the necessity of inspection, testing or slaughter in the manner which is applicable to dairy cows which are found to be infected with tuberculosis. We are of the opinion this is a reasonable and valid classification. It is apparent the act is primarily intended to regulate the control of milk cows for sanitary and police purposes so as to protect the dairy business for the well-known reason that milk, which is susceptible to infection from tubercular germs, is peculiarly dangerous for human consumption. Stanislaus County is a famous dairy county. There is good reason why that industry should be strictly regulated and protected in that district. It may be true that beef cattle may also be dangerously infected with tuberculosis. The general laws of inspecting, classifying and marketing beef may adequately provide for safety against tubercularly infected meat, independently of the Stanislaus County ordinance. At least the reasonableness of the classification of dairy cows from beef cattle is a question resting very largely in the discretion of the legislative authority. It is said in the case of Martin v. Superior Court, 194 Cal. 93 [227 Pac. 762]:
“The authority and the duty to ascertain the facts which will justify classified legislation must of necessity rest with the legislature, in the first instance, to whom has been given the power to legislate and not to the court and the decision of the legislature in that behalf is ordinarily conclusive upon the courts. Every presumption is in favor of the validity of the legislative act and the legislative classification will not therefore be disturbed unless it is palpably arbitrary in its nature and neither founded upon nor supported by reason.”
To the same effect are the cases of Dooley v. Johnson, 133 Cal. App. 459 [24 Pac. (2d) 540], and
“The state may distinguish, select, and classify objects of legislation, and necessarily the power must have a wide range of discretion. ‘Classification for such purposes is not invalid because not depending upon scientific or marked differences in things or persons or in their relations. It suffices if it is practical, and is not reviewable unless palpably arbitrary.‘”
It is contended the ordinance violates the provisions of the
It is true that the ordinance does рrovide for the inspection and slaughter of cattle found to be infected with tuberculosis, without providing for compensation therefor. This condemning and slaughter of cattle without providing for compensation therefor, and at the discretion of the county livestock inspector [. . . ] raises a close and serious constitutional question. Most statutes and ordinances enacted for the summary destruction of diseased animals which are dangerous to health provide for reasonable methods of ascertaining and compensating the owners for their value. This is the safe and just method of disposing of diseased livestock. But it appears that under the police powers, in emergencies arising from the prevalence of diseased animals which are dangerous to the health of individuals, such as stock which is infected with the virulent “hoof-and-mouth disease” or other contagious or infectious diseases, statutes have been held to be valid which provide for the summary destruction of the animals even though they do not provide for compensation for the value of the animals. These statutes are upheld on the theory that under the police power the agencies of the government are authorized to abate a public nuisance dangerous to the health of individuals. (New Orleans v. Charouleau, 121 La. 890 [46 So. 911, 18 L. R. A. (N. S.) 368, 126 Am. St. Rep. 332, 15 Ann. Cas. 46]; Newark & S. O. Horse Car Co. v. Hunt, 50 N. J. L. 308 [12 Atl. 697]; Torruella v. Fernandez, 14 P. R. R. 591; 3 C. J., p. 54, sec. 151; 1 R. C. L., p. 1158, sec. 102; 67 A. L. R. 208, note.) We are of the opinion the ordinance which is involved in this case falls within that rule for the reason that it is enacted under the police
The same reason prompts the sustaining of section VI of the ordinance which provides for the cleaning and disinfecting of the premises from which such diseased cattle have been removed, under the supervision and to the satisfaction of the same county livestock inspector.
The mere fact that the ordinance provides that diseased cattle shall be slaughtered “under supervision of Federal, State or State approved municipal meat inspector” is harmless. The mere supervision of the actual destruction of diseased animals on the part of federal or state approved officers deprives the owners of such stock of no vested property rights. Moreover, if that clause be deemed to be invalid, it does not affect the balance of the ordinance, which specifically provides that the invalidity of any section, paragraph or phrase thereof “shall not affect the validity of the remaining portion of the ordinance“.
Nearly every issue which is involved in this appeal was determined adversely to these appellants in the recent case of Coelho v. Truckell, 9 Cal. App. (2d) 47 [48 Pac. (2d) 697], in which a hearing was denied by the Supreme Court. In that case Kings County organized a tuberculosis control area under the provisiоns of
No contention was made, or at least was not considered by the court, that the provision, authorizing the testing of cattle by others than the county livestock inspector, was invalid by reason of the conflict with
We do not intend to intimate by anything that we have said in this opinion that the county livestock inspector must personally perform all acts required in testing dairy cattle within the district. This, at least in some instances, would be a physical impossibility. He may act through deputies or call in veterinarians to assist him in the performance of his duties. But what we do mean to hold is that the portion of section III of the ordinance which apparently attempts to give veterinarians, independent of the county livestock inspector, the power to test animals and order slaughtered those found to be diseased, is an invalid provision of said ordinance.]
The judgment is affirmed.
Thompson, J., Waste, C. J., Shenk, J., and Seawell, J., concurred.
EDMONDS, J.—I dissent. The view taken by the majority of the court is, in my opinion, inconsistent with the decision of this court in LaFranchi v. City of Santa Rosa, ante, p. 331 [65 Pac. (2d) 1301, 110 A. L. R. 639], rendered February 25, 1937. In that case an ordinance of the city of Santa Rosa was held to be in conflict with the provisions of the
It is perfectly clear that the state has power to adopt measures looking toward the eradication of bovine tuberculosis under the police power, and there can be no doubt of the power of the state to assume exclusive control of the entire subject-matter. It is equally clear that under
The
The
The ordinance here attacked was enacted pursuant to the provisions of the code. But if the ordinance is valid the right of an owner of destroyed cattle to indemnification depends upon the county in which they may have been located. If they were examined and slaughtered within a tuberculosis control area established by the state the owner is entitled to receive the pаyments specified by the act. But if the cattle were destroyed within a voluntary tuberculosis control area established by the county ordinance in conformity to the act, the owner receives nothing for his animals. Under such circumstances the right to indemnification may depend entirely upon the location of the infected cattle.
As already pointed out, the state law is a general law, and such laws must be uniform in their operation. There is no reasonable basis for classification under a state law by which dairymen in one county are entitled to indemnification while those in an adjoining county are denied the same right. It is apparent that, if the state by statute had directly provided for such a classification, it would be invalid. What the state cannot do directly it cannot do indirectly. It cannot create certain rights in some of its citizens and then delegate to counties the power to deny these rights to other citizens similarly situated.
There is still another reason why the decision of the majority, in my opinion, is unsound. The complaint of the plaintiffs contains many allegations indicating that the present ordinance is unreasonable. They were entitled to a trial on the issues thus presented. (2 McQuillin on Municipal Corporations, sec. 766, p. 732; In re Smith, 143 Cal. 368 [77 Pac. 180]; Dobbins v. Los Angeles, 195 U. S. 223 [25 Sup. Ct. 18, 49 L. Ed. 169].)
In my opinion the judgment should be reversed with directions to the trial court to allow the defendants to answer.