Stanislaus County Dairymen's Protective Ass'n v. County of Stanislaus , 8 Cal. 2d 378 ( 1937 )

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 Agricultural Code. For the same reason the ordinance here involved should be held to be inconsistent with the provisions of that Code dealing with the same subject-matter.

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 article XI, section 11, of the state Constitution this subject-matter could be left to the control of the cities and counties. However, if the state has acted by general law, the regulations enforceable by the subordinate agencies are limited to enactments not inconsistent with the general law. It is elementary, and the state Constitution so provides, that all laws of a general nature shall have a uniform operation. The federal Constitution prohibits any state from making or enforcing a law denying to any person the equal protection of the law. Applying these general f principles to the instant ease, it is my opinion that the ordinance is inconsistent with the general law.

The Agricultural Code, which includes in its provisions authority for the eradication of bovine tuberculosis, is a general law. (Ex parte Beck, 162 Cal. 701 [124 Pac. 543]; In re Cencinino, 31 Cal. App. 238 [160 Pac. 167]; Ex parte Grey, 11 Cal. App. 125 [104 Pac. 476].) By these provisions the state department of agriculture is authorized to establish and maintain tuberculosis control areas wherein the department shall examine and test all dairy cattle. The code also provides that reactors shall be segregated and slaughtered and the owner compensated therefor. A further provision is that, if funds are insufficient for administration and indemnification, the department may withdraw one or more counties from the area, which withdrawn area shall become a provisional control area wherein cattle may be tested at the request of the owner, but with no authority for their slaughter.

The Agricultural Code thus expresses as a general legislative policy that no cattle shall be tested or destroyed under the article relating to bovine tuberculosis unless funds are available from appropriation for payment of indemnity to the owner. However, one of the provisions of this article authorizes the board of supervisors of a county which has not been established by the department of agriculture of the state as a tuberculosis control area, to by ordinance declare any portion of the county a voluntary tuberculosis control area. The provisions in this code for payment of indemnity shall not apply to any voluntary tuberculosis control area established by authority of this section.” (Sec. 234.25, Agricultural Code.)

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 payments 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.

The state probably could have provided for the summary slaughter of infected cattle without indemnification (Randall v. Patch, 118 Me. 303 [108 Atl. 97, 8 A. L. R. 65]; Miller v. State, 146 Va. 175 [135 S. E. 813, 67 A. L. R. 197]), but it has not seen fit to do so. A fundamental part of the plan adopted by the state is that cattle shall only be destroyed when funds for indemnification are available.

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.