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District Court of Appeal, Second District, Division 1, California.


Civ. 18529.

Decided: February 13, 1952

Brooks Gifford, Pasadena, for appellants. Ray L. Chesebro, City Atty., William H. Neal, Bourke Jones, Asst. City Attys., Alan G. Campbell, Deputy City Atty., Los Angeles, for defendants and respondents. Musick & Burrell, Howard Burrell, James E. Bednar, Los Angeles, for intervenor and respondent College of Medical Evangelists. Stephens, Jones & LaFever, Raymond W. Stephens, Los Angeles, for intervenor and respondent, University of Southern California. McGinley & Hanson, John P. McGinley, Los Angeles, for intervenor and respondent, Medical Research Ass'n of California.

This action arose out of the enactment on November 7, 1950 by the electors of the City of Los Angeles of ‘An Ordinance Adding Subsection (h) to Section 53.11 of the Los Angeles Municipal Code Relating to the Regulation of the Surrender of Unclaimed Impounded Animals for Purposes of Medical Research’. The ordinance provides for the surrender of such animals to ‘reputable institutions of learning, hospitals, research laboratories or their allied institutes in the City of Los Angeles' which have been certified by the Health Officer, and ‘which he is satisfied will use animals humanely’, for the ‘good of mankind and the increase of knowledge relating to the cause, prevention, control and cure of disease’. The ordinance further provides that such unclaimed, impounded animals are to be so surrendered only when applied for by such institutions, and that ‘In order to give the owners of impounded animals time within which to reclaim the same, no animal shall be surrendered for such use until it has been impounded for a period of at least five days'.

The action herein was brought on November 21, 1950, to restrain the City and officers thereof from enforcing said provisions claimed to be unconstitutional and void. After the filing of the original complaint, and on December 18, 1950, a supplemental complaint was filed, alleging that the City Council, on November 29, 1950, had declared the proposed ordinance enacted by the people, to be in full force and effect. Demurrers were sustained to the complaint and supplemental complaint, plaintiffs declined to amend, and judgment was entered for the defendants. The present appeal is from that judgment.

Alleging that the ordinance in question is ‘unconstitutional and void in that its enforcement will deprive plaintiffs, and others similarly situated, of property without due process of law’, the complaint pleads that ‘the plaintiffs, as the owners of dogs, holding valid licenses, which dogs had become estrayed without fault on the part of their respective owners, were threatened by action planned to be taken by City officials * * *; that said threatened action would take the form of turning over of plaintiffs' property to such institutions of learning, hospitals, research laboratories and their allied institutes, including those organized for profit’.

Answering the contention that the ordinance is a valid exercise of the ‘police power’, appellants assert that ‘It is a police regulation in guise only and the end it seeks is to benefit certain institutions at plaintiffs' expense both as to the owners of dogs and as taxpayers'. In this connection it is alleged that in place of being obliged to purchase animals for laboratory experimentation, as was formerly the case, the approved institutions will now receive such material from the city without cost, and thus deprive the city of a considerable income.

The complaint also alleges that the ordinance clothes the Health Officer with ‘arbitrary and uncontrolled discretion as to which institutions * * * he shall certify * * * as qualified to receive impounded animals', and ‘fails to prescribe any ascertainable standard by which said Health Officer shall act in the exercise of his power of selection’. The only requirement is that the Health Officer shall be satisfied that a particular institution will use the animals ‘humanely’. In re Porterfield, 28 Cal.2d 91, 168 P.2d 706, 167 A.L.R. 675, is here cited, holding that an ordinance which authorizes the granting or withholding of a license in the discretion of a city official, without prescribing an ascertainable standard by which the official is to act, is unconstitutional and void.

Other allegations are that the ordinance violates the penal laws of the state relating to the prevention of cruelty to animals, and Section 155 of the Los Angeles City Charter which enjoins upon the Department of Animal Regulation the duty of enforcing such laws. Irregularities in presenting the proposed ordinance to the voters, are also charged. It is appellants' contention that a cause of action has been stated, and that therefore the ‘cause should not be decided on the pleadings but on the facts', brought out on a trial of the action.

The judgment in respondents' favor, entered after the sustaining of a demurrer to the complaint and appellants' refusal to amend, must be reversed. While it may be that some of the allegations in the complaint are immaterial and without merit, enough remains to state a cause of action. As stated in appellants' brief, ‘The judgment * * * must be reviewed in view of the well-settled rule that, on demurrer, all of the allegations of a complaint which are well pleaded must be taken as true’. Whether appellants will be able to prove the alleged material facts is quite another matter, and beside the point.

The ordinance in question, in its present form, is a distinct and radical departure from the previous enactment. Appellants, having identified themselves as taxpayers and as the owners of licensed dogs which have, without the owners' fault, become estrays and hence subject to the ordinance, are clearly entitled to question its validity, if any person is so entitled. Respondents' argument that appellants have no standing since it does not appear that any animal belonging to appellants is directly affected, is untenable. As appellants aver, ‘one of the primary functions of equitable jurisdiction is to restrain the commission of a threatened wrong’. This the complaint sought to accomplish at the earliest possible moment, and rightly so.

That dogs are personal property has long been recognized in this state. Section 491 of the Penal Code declares: ‘Dogs are personal property, and their value is to be ascertained in the same manner as the value of other property.’ In Roos v. Loeser, 41 Cal.App. 782, 183 P. 204, the court says: ‘But that day has passed, and dogs now have a well-established status before the law. Considerable sums of money are invested in dogs, and they are the subject of extensive trade. Aside from their pecuniary value their worth is recognized by writers and jurists.’

Had the City attempted by ordinance or otherwise to summarily deprive an owner of some other variety of property, or perhaps to confiscate some duly licensed business, such owner's right to question the validity of the regulation cannot be doubted. There is no plausible reason why the owners of licensed dogs should not be entitled to the same privilege and to test matter on its merits by a trial before the proper court. This the appellants have not been permitted to do.

The complaint and supplementary complaint, whatever their shortcomings, undoubtedly present the question of the validity of the ordinance. It is unnecessary to point out that a municipality is not unlimited in its legislative authority. Notwithstanding the admitted elasticity of the so-called ‘police power’, this cannot be made an excuse for arbitrary interference with or confiscation of private property. Proper and reasonable regulation of dogs and other animals is necessarily well within that power. Whether the present ordinance falls within the category, or whether by its terms it is arbitrary, unfair and confiscatory in that it takes private property without compensation and without proper notice and then gives away the same to private institutions without cost, which institutions are to be arbitrarily approved by the Health Officer, are important questions presented by the complaint.

As stated in appellants' brief, the names and addresses of all owners of licensed dogs are listed with the Department. The ordinance in question prescribes no notice to such owners that the dogs are about to be surrendered for vivisection purposes, but merely provides that ‘In order to give the owners of impounded animals time within which to reclaim the same, no animal shall be surrendered for such uses until it has been impounded for a period of at least five days'. Bearing in mind the fact that in a city of such territorial extent as Los Angeles, there are several animal shelters widely separated and that much time might be spent by an owner in attempting to get trace of a lost dog, it may well be questioned whether five days is an adequate period for search. Again, an owner might be absent from the city for a considerable space of time, well beyond the five-day period, without knowledge that the dog had strayed, only to return and find that, without notice of any kind, the dog, a valuable animal and esteemed household pet, had been turned over to some favored laboratory.

As the owner of valuable property, appellants are entitled to the benefit of the due process constitutional provisions. Without entering into a lengthy discussion of what does or does not constitute ‘due process', it is axiomatic that before a person can be deprived of property, some sort of adequate notice and opportunity to be heard, are indispensable. Unless the present ordinance can be said to afford such notice or provide reasonable opportunity to reclaim the lost animal, it must be deemed fatally defective. This, indeed, is a crucial question presented by appellants' complaint, and one on which appellants are entitled to a plenary trial.

The complaint presents other equally important questions concerning validity of the ordinance. As hereinbefore mentioned, the ordinance provides for the surrender of animals to ‘reputable institutions of learning, hospitals, research laboratories or their allied institutes in the City of Los Angeles' which have been certified by the Health Officer, and ‘which he is satisfied will use animals humanely’. The question is raised whether this terminology does not clothe the Health Officer with an uncontrolled discretion, prescribing no standard by which such officer shall act. The ordinance, appellants point out, makes no distinction between public and private laboratories, those organized for profit and non-profit institutions. The only stated requirements is the Health Officer's certificate that a particular institution is deemed ‘humane’ in character. Such an institution is then to be placed in the favored position of being able to obtain laboratory material without cost, whereas under the previous law animals required for experimentation were required to be purchased. From the sale of impounded animals the city derived a substantial income.

A reading of the ordinance as presented in appellants' complaint suggests that it would hardly be possible to make a more general and indefinite designation as to qualifications of the institutions which are to receive this bounty. It is likewise suggested that it would be impossible to conceive of a situation in which an official is clothed with greater latitude or as appellants' phrase it, a more ‘uncontrolled discretion’ than is the Health Officer under the present ordinance.

A legislative trend, of which there are numerous examples, towards clothing some official with quite arbitrary and almost unlimited discretion in determining highly important matters, and usurping both judicial and legislative functions, is to be deplored. The effect of such legislation is to render the judgment, however good or bad, of some one non-judicial officer, supreme and inviolate. Such a theory is un-American in spirit and unauthorized by constitutional law.

Appellants, taxpayers as well as dog owners, are also entitled to raise the question whether the ordinance is not invalid in thus giving away to these approved institutions, public propety, (assuming that unclaimed, impounded animals can be deemed public property). The giving away of public property is prohibited by the City Charter.

It is deemed neither necessary nor proper to here enter into a discussion of the merits or demerits of vivisection. Striking examples have been mentioned by appellants of laboratory experimentation which might be classified as cruel and thus violative of Section 597, prohibiting cruelty to animals. Respondents have likewise detailed many examples of highly beneficial medical discoveries made possible by experimentation on animals. Judicial tribunals, however, are concerned, not with the wisdom of legislation but with its validity.

Nothing said herein is intended to intimate or express a view in respect to the ultimate decision to be reached after a plenary trial on the merits of the case. Obviously the result of such a trial must depend upon the evidentiary aspect at that time and the presentation of law and fact to the trial court. All that is decided herein is that adopting a reasonable interpretation of the complaint, a cause of action has been sufficiently stated to entitle appellants to test the validity of the ordinance in question.

The judgment is reversed and the cause remanded, with directions to the court below to overrule the demurrers and allow defendants a reasonable time to answer if they be so advised.

DORAN, Justice.

WHITE, P. J., and DRAPEAU, J., concur.

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