CITY OF OAKLAND v. BROCK (1936)

From a judgment awarding the plaintiff certain declaratory relief, the defendant has appealed and has brought up the judgment roll. The defendant filed a demurrer in which he alleged that plaintiff's complaint did not state facts sufficient to constitute a cause of action against him. The trial court overruled the demurrer and gave the defendant ten days within which to answer. Notice of the order was duly given, but the defendant declined to answer. In the meantime a preliminary injunction was granted to the plaintiff. Later a decree was entered designating the relief to which the plaintiff was entitled, and the preliminary injunction was made permanent. The defendant has appealed from that decree.

On April 3, 1928, the city of Oakland adopted an ordinance which, among other things, provided for the inspection of meats to be used for food in said city and providing for the inspection of slaughter houses where the animals were killed. By its terms said ordinance provided for the inspection of slaughter houses located outside of the city of Oakland when the meats so slaughtered were sold for food within said city. A large part of the meat so sold is slaughtered at places located outside of the limits of the city of Oakland, to wit, in the city of Emeryville and the city of Berkeley. Upon the enactment of said ordinance, the city of Oakland at once organized an inspection service extending to slaughter houses in all of said cities, commenced to inspect them, has continued to do so, and claims the right to so continue. On May 8, 1931, a state statute took effect which provides for state inspection of slaughter houses. Said statute provided, however, how and under what conditions municipal inspection departments could be approved. The municipal inspection department of the city of Oakland was approved as provided in said statute. Nevertheless the defendant did notify the city of Oakland that on May 31, 1934, his approval would be withdrawn. Said notice stated that such withdrawal of approval is, and was, based on the ground that the defendant has no authority to sanction or approve the said municipal inspection service, and the city of Oakland has no authority to inspect slaughter houses outside of its corporate limits.

In his first point the defendant contends that plaintiff's complaint states no facts showing that the plaintiff has authority to maintain a suit against the state or a state agency and that he is admittedly an agent of the state and acting as such. 23 Cal.Jur. 578. The plaintiff replies that it is not maintaining a suit against the state; that under the facts alleged the state has no interest whatever; that the rights of others are involved; and that plaintiff's rights are about to be trespassed upon by an officer of the state, and that the state is merely concerned to see that justice is at all times awarded to the injured. Nougues v. Douglass, 7 Cal. 65, 74; Payne v. Central P. R. Co., 255 U.S. 228, 238, 41 S.Ct. 314, 65 L.Ed. 598; U'Ren v. State Board of Control, 31 Cal.App. 6, 12, 159 P. 615. The reply is sufficient. The proceeding is brought to compel the defendant to perform a plain ministerial duty, and for that purpose is clearly authorized. 59 C.J. 312.

The defendant freely concedes that the municipal inspection department of the city of Oakland is within its rights and is obeying the law when inspecting slaughter houses within its limits, but contends that said department transcends the law when it inspects any houses which are outside of said limits. The contrary has been held to be the law. In re Blois, 179 Cal. 291, 176 P. 449. But, the defendant asserts, that case and similar cases rest on the fact that the power under attack was expressly granted by statute. An examination of those cases discloses that the distinction claimed does not exist. They contain nothing in conflict with the doctrine stated in Von Schmidt v. Widber, 105 Cal. 151, 38 P. 682. At page 157 of 105 Cal., 38 P. 682, 684, the court said: “The rule is so familiar as to be trite that a municipal corporation can exercise only such powers as have been conferred upon it in its charter, or by some general law, and that any person, in dealing with it, is charged with a knowledge of every limitation upon its power to contract a liability. This rule is not, however, to be so considered as to require an authority in express terms for the performance of every municipal act. If an express power to accomplish some result has been conferred, it will carry with it the authority to do such subsidiary acts as are incidental and necessary to the exercise of that power. The rule, as stated by Mr. Dillon (1 Mun.Corp. [4th Ed.] § 89), and approved in various authorities, is that: ‘It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation,––not simply convenient, but indispensable.”’

When the ordinance under attack was enacted, it was not only necessary but fairly to be implied and incident to the power to inspect meats in general which were to be used as food in Oakland that a part at least of the inspection should take place beyond the limits of the city of Oakland. Furthermore, the right to inspect outside of the city of Oakland was essential to the declared objects and purposes of said ordinance.

The judgment is affirmed.

STURTEVANT, Justice.

We concur: NOURSE, P. J.; SPENCE, J.