Thome v. Superior Court

California Court of Appeal May 4, 1939 No. Civ. 6186Published

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Holding. The court held that a cattle owner is entitled to request a sample of the tuberculin to be used on their cattle to preserve evidence for potential future litigation, and that refusing such a request justifies the owner's refusal to permit the test. Consequently, the contempt order against the petitioner was annulled.

Issues

Whether a cattle owner is entitled to obtain a sample of tuberculin prior to its administration to their cattle.
Whether an owner's refusal to permit a tuberculin test after being denied a sample of the tuberculin constitutes contempt of court.

Disposition. annulled

Quotations verified verbatim against the opinion

“an owner in the protection of his subsequent right to challenge the acts of the state, was entitled to and was justified in requesting a smear of the tuberculin about to be injected into his cattle.”

“Where, as in the case at issue, this right was refused the owner, he was justified in refusing to permit the department to further proceed with its test.”

“The order is annulled and the petitioner discharged.”

THE

COURT.

A rehearing was granted in this ease in order that we might have the benefit of further argument. Additional briefs have been filed and the matter orally argued, and after further consideration we adopt the opinion heretofore filed, as follows:

“By this writ petitioner seeks to review an order of the Superior Court of the County of Merced finding petitioner guilty of contempt.

“This is another case growing out of the preliminary injunction issued by the superior court restraining and enjoining certain defendants, including petitioner, from interfering with the agents of the state department of agriculture in testing cattle under the provisions of the Bovine Tuberculosis Act. (Secs. 221-254.)

“After the issuance of the preliminary injunction an order was directed to petitioner to show cause why he should not be punished for contempt of said preliminary injunction. A hearing was had and petitioner adjudged in contempt of court, and ordered punished therefor.

“There seems to be no conflict in the testimony. Upon a certain day petitioner was notified to have his cattle in stanchions, preparatory to receiving the tuberculin test. Upon that day a duly authorized veterinarian of the agricultural department appeared at the dairy of petitioner, and found the cattle were all confined in their stanchions. Petitioner was present in person and with a duly licensed veterinarian. Petitioner then requested of the state veterinarian a sample or smear of the tuberculin about to be injected into his cattle. This request was refused, and the petitioner then would not permit the test to proceed, and the citation and conviction of contempt followed.

“This court recently upheld the constitutionality of that portion of the Agricultural Code relating to bovine tuberculosis

(Affonso Bros.

Brock,

29 Cal. App. (2d) 26 [84 Pac. (2d) 515]) upon the ground it -was a valid exercise of the police power enacted in the interest of the public health. We there pointed out, however, that although stringent and summary, the act did not deprive the owner of his remedy

[523]

Thome v. Superior Court

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THE

COURT.

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