STANISLAUS COUNTY DAIRYMEN PROTECTIVE ASS v. STANISLAUS COUNTY (1936)

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 Agricultural Code of California (Gen.Laws Supp.1933, Act 144), which purports to legislate for the entire state upon the same subject, and because the ordinance is discriminatory, unreasonable, and oppressive. The demurrer was sustained on the ground that the complaint fails to state facts sufficient to constitute a cause of action authorizing the injunctive relief which is sought.

It is contended the demurrer was improperly sustained for the reason that the facts which are alleged show that the county 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, p. 732, § 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 unreasonable, 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. Article 11, § 11, Const. of Calif. The only questions to be determined are whether the challenged ordinance constitutes a violation of that constitutional delegation of authority, or whether it is in conflict with the Agricultural Code of California. The authority to enact police ordinances for sanitation or health on the part of counties as well as chartered cities is just as broad, sweeping, and inclusive as the powers with relation thereto which are vested in the Legislature itself, except that they must not conflict with the Constitution or with general laws, and must be confined in their application only to the city or county adopting them. People v. Velarde, 45 Cal.App. 520, 188 P. 59; In re Maas, 219 Cal. 422, 27 P.(2d) 373.

In determining whether the ordinance is unreasonable, discriminatory, or oppressive, and therefore void, the intent and object of the legislation should be ascertained, if possible, from the act itself. In 59 Corpus Juris, p. 961, § 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, p. 964, § 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 sections 234 to 239 of the Agricultural Code of California (Deering's Supp. to Gen.Laws of Calif., 1933, Act 144, p. 841 et seq.) includes all of the provisions with relation to the control of tuberculosis as affecting cattle within the state, which are found in the Stanislaus ordinance, which latter measure is a mere attempt to regulate the same subject covered by the state law, and that the ordinance is therefore ineffectual and void. In re Sic, 73 Cal. 142, 14 P. 405; In re Mingo, 190 Cal. 769, 214 P. 850; Atlas Mixed Mortar Co. v. City of Burbank, 202 Cal. 660, 262 P. 334. The application of this rule depends upon whether the Agricultural Code does in fact cover regulations in the same district regarding tubercular cattle which are sought to be enforced by the Stanislaus ordinance. If the ordinance does enact new and additional regulations beyond those which are covered by the state law, then those measures may be upheld as valid so long as they do not conflict with the provisions of the state law. It is said in Re Iverson, 199 Cal. 582, 250 P. 681, 682, in that regard: “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 seem 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 P. 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 of the facts and circumstances upon which it was intended to operate.”

After comparison of the Stanislaus county ordinance with the Agricultural Code we are satisfied these measures are not in conflict. The tuberculosis control feature of the Agricultural Code is not effective in Stanislaus county. The complaint does not allege facts indicating that the code is effective in Stanislaus county. In truth, just the opposite situation appears. It is recited that the county of Stanislaus adopted an ordinance pursuant to section 234.25 of the Agricultural Code declaring that county to be an independent “voluntary tuberculosis area.” This procedure is authorized by the Code. The theory of the Agricultural Code is that the state will assume authority to enforce the provisions thereof with respect to tubercular animals only in districts consisting of one or more counties after such areas have been segregated and established by the agricultural department. Section 234 of the Code provides in that regard: “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 section 234.25, which authorizes any county which is not included in a district organized by the department to create by ordinance its own area “until the department shall establish such county as a tuberculosis control area,” within which county or any portion thereof the board of supervisors may provide for the regulation and testing of all cattle for the purpose of eradicating tuberculosis. That is exactly what was done in the present case. The last–mentioned section provides:

“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 shall establish such county as a tuberculosis control area.

“The county live stock 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 board of supervisors of Stanislaus county enacted Ordinance No. 170 pursuant to the provisions of section 234.25 of the Agricultural Code on January 19, 1935, creating a voluntary tuberculosis control area of the entire county for the purpose of eradicating tuberculosis from cattle. That ordinance is referred to as “Exhibit A” and is made a part of the complaint. It is claimed that since the last–mentioned section only authorizes a board of supervisors to declare “any portion of said county a voluntary tuberculosis control area,” the effort to include the entire county in such district is unwarranted and void. We think there is no merit in this contention. We are of the opinion the authority to embrace within the area “any portion of the county” necessarily confers the right to include all portions or the whole thereof. Coelho v. Truckell, 9 Cal. App.(2d) 47, 48 P.(2d) 697.

The complaint then alleges that the board of supervisors of Stanislaus county enacted Ordinance No. 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 section 234.25 of the Agricultural Code, and provides in detail for the regulation and control of the testing, branding, and disposition of tubercular animals within that county.

The first ordinance created the district. The second one provided the authority and procedure for eradicating tuberculosis from dairy cattle within that area.

Since it does not appear that Stanislaus county was included by the agricultural department in any tubercular control district within the state, it is clear that county had a right to organize such a district within its own borders and enact an ordinance under the police powers conferred by article 11, § 11, of the Constitution of California for the purpose of controlling the dairy business and eradicating tuberculosis from cattle within that area. This is exactly what the county of Stanislaus proceeded to do. Since the Agricultural Code does not affect the territory within the county of Stanislaus with respect to tubercular cattle, it may not be said the county ordinance is in conflict therewith. It is therefore unnecessary to examine the various provisions of these two measures to determine whether they are the same in language and purpose. If the Agricultural Code does not apply to Stanislaus county, it is immaterial that the county ordinance may also be couched in the same language or that it may be intended to serve the same purpose. Statutes may be identical in language and purpose, but if they apply to distinctly separate districts, they are not conflicting. The Legislature had a right to authorize the organization of separate districts within the state for the purpose of regulating and eradicating tuberculosis from dairy cattle. This districting of the state has been done with respect to fishing and hunting and in various other regulatory enactments. The Agricultural Code is not discriminatory or void on that account.

The appellants suggest that the Stanislaus ordinance conflicts with the Agricultural Code in many particulars, among which is the fact that section 238 of the Code provides that animals shall not be tested for tuberculosis or slaughtered unless there are funds available from federal and state sources to compensate the owner of the stock for the loss thereof, while the ordinance provides for no compensation under such circumstances. But, as we have said, there is no conflict between these measures since the Code does not apply except in districts which have been established by the agricultural department, and Stanislaus county was not included in such an area. Section 234.25 of the Agricultural Code specifically declares that: “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 our conclusion that the Agricultural Code has no application to the county of Stanislaus, we are not concerned with the problems as to whether it is unconstitutional for the alleged reasons that it is unreasonable, discriminatory, or oppressive, or that it constitutes an unlawful delegation of judicial authority, or otherwise. The agents of the Stanislaus district are not pretending to regulate tuberculosis among dairy cattle pursuant to the Agricultural Code.

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 article 11, § 11, of the Constitution of California, chiefly to eradicate tuberculosis from dairy cattle in Stanislaus county for the protection of the consumers of milk against that prevalent disease. This discretion is conferred by the ordinance on the county livestock inspector or upon the county veterinarians, subject to the rules therein provided for the purpose of regulating the dairy business and eradicating tuberculosis. Sections III to VI of the ordinance are quoted in part and provide:

“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, 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 [county] veterinarian. * * *

“V. Any bovine animal in Stanislaus County reacting positively to a tuberculin test conducted by a [county] veterinarian or the county 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. Cobb (Cal.Sup.) 53 P.(2d) 349, 352, 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, § 179; 5 Cal.Jur., p. 683, § 97; 1 Cooley's Const. Lim., p. 228; School District No. 7 v. Hunnicutt (D.C. Okl.) 51 F.(2d) 528; People v. Kuder, 93 Cal.App. 42, 269 P. 198, 630; In re Halck, 215 Cal. 500, 11 P.(2d) 389; Ex parte McManus, 151 Cal. 331, 335, 90 P. 702; In re Weisberg, 215 Cal. 624, 12 P.(2d) 446, 450. In 1 Cooley's Const. Lim., (8th Ed.) p. 231, it is said in that regard: ‘Boards and commissions now play an important part in the administration 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 claim 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 businesses. This contention is sufficiently answered by Carter v. Stevens, supra, 211 Cal. 281, 289–293, 295 P. 28, and Gaylord v. City of Pasadena, 175 Cal. 433, 436, 166 P. 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 long be successfully advanced to this growing method of transacting public business. These 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 S.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 S.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 section 234.25 of the Agricultural Code in that regard, and not the provisions of the county ordinance.

The ordinance does not unlawfully discriminate between the owners of beef cattle and dairy cows in violation of article 1, § 11, of the Constitution of California, nor does it deprive any owner of property without due process of law, contrary to the inhibition of the Fourteenth Amendment of the Federal Constitution.

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 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 P. 762, 765: “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 courts, 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 P.(2d) 540, and Jochimsen v. City of Los Angeles, 54 Cal.App. 715, 202 P. 902, 903. In the case last cited it is said: “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 on 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 Fourteenth Amendment to the Federal Constitution by depriving the owners of cattle of their property without due process of law, and that it is unreasonable and oppressive and therefore unconstitutional and void.

It is true that the ordinance does provide 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 or veterinarian, 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.Law, 308, 12 A. 697; Torruella v. Fernandez, 14 Porto Rico R. 591; 3 C.J. p. 54, § 151; 1 R.C.L. p. 1158, § 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 power specifically delegated to the county by the provision of the state Constitution, and is intended to eradicate tuberculosis from dairy cattle and to regulate the producing and distribution of pure milk free from infected germs which are dangerous to health. We are pointed to no case which has held such statutes or ordinances to be unconstitutional or void on account of a failure to provide for compensating the owners of such diseased cattle for their summary destruction. The ordinance provides for the segregation of such diseased cattle for a period of thirty days, during which time they shall be slaughtered. This seems to afford reasonable assurance that they are actually dangerously diseased before their destruction is authorized. The delegation of enforcing this provision of the ordinance to a county livestock inspector or veterinarian is not unreasonable, arbitrary, or oppressive. These officers are deemed to be the skilled agents of the county for the purpose of inspecting, segregating, and destroying diseased dairy cattle for the preservation of the health of the consumers of milk so commonly used by the public.

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 or veterinarian.

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 P.(2d) 697, in which a hearing was denied by the Supreme Court. In that case Kings county organized a tuberculosis control area under the provisions of section 234.25 of the Agricultural Code of California, including the entire county in that district, just as Stanislaus county did in the present case. Kings county then adopted an ordinance under the police power conferred upon it by the Constitution of California providing for the testing, branding, segregation and slaughter of cattle within the district which were found to be infected with tuberculosis. The slaughter of such diseased cattle was authorized without compensation to the owners thereof. The enforcement of the ordinance was delegated to the livestock inspector of the county, or to qualified veterinarians employed by the bureau of animal industry of the United States. There is no substantial difference between the Kings county ordinance and the Stanislaus county measure, with the exception that in the present case the testing, condemning, and slaughtering of diseased animals is not left to the discretion of federal officers, but is intrusted only to officers of Stanislaus county. In that case it was definitely held not to be an unlawful delegation of authority to vest the county livestock inspector or the other qualified veterinarians or federal officers with a discretion to determine when and how often cattle may be inspected for tuberculosis or to direct the slaughtering of such diseased animals. In fact, every essential issue of this suit was determined in the Coelho Case in accordance with our preceding opinion. That case is determinative of this appeal.

The judgment is affirmed.

Mr. Justice THOMPSON delivered the opinion of the court.

We concur: PULLEN, P. J.; STEEL, Justice pro tem.