O'NEAL v. Seabury

THOMPSON, J.

The plaintiffs have appealed from a judgment which was rendered against them, dismissing their action following an order sustaining a demurrer to their complaint without leave to amend the pleading. The complaint alleges that certain officers of the county of Madera threaten to enforce against the defendants the provisions of an ordinance of that county, number 164, adopted to create a “Tuberculosis Control Area” for the purpose of inspecting, segregating and testing cattle for the purpose of eradicating tuberculosis therefrom; that the ordinance is in conflict with the provisions of the Agricultural Code of California (Deering’s Supp. to Gen. Laws of Calif., 1933, p. 771, Act 144), with respect to the same subject. The complaint merely prays for an injunction to prohibit the officers of the county from enforcing the provisions of the ordinance. A general demurrer to the complaint was filed. The demurrer was sustained. The plaintiffs failed to amend their complaint. No request to be permitted to amend then-pleading was made. Judgment of dismissal of the action was subsequently rendered. From that judgment this appeal was perfected.

Under the provisions of section 234 of the Agricultural Code, the department of agriculture of the state of California formerly established a district or area, including the entire state, with the exception of Madera and certain other counties, for the purpose of enforcing inspection, segregation and testing of beef and dairy cattle to eradicate tuberculosis

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therefrom. Madera and other counties were formerly excluded from the general state area of the tuberculosis district pursuant to the provisions of section 234.5 of the code, which reads as follows:

“The director.may withdraw one or more counties within a tuberculosis control area from such an area when the funds available for indemnity and administration are not sufficient to continue the work under the provisions of this article.” Pursuant to the provisions of section 234.25 of the code, the county of Madera thereupon established a tuberculosis control district including the.entire territory of that county, and enacted ordinance number 164, which is involved in this appeal.

While the ordinance was in force this suit for injunction was brought against the defendants. Before the appeal in this ease was submitted to this court for determination, pursuant to the authority conferred upon the agricultural department of the state of California by division II of the Agricultural Code, that department of the state, on July 3, 1937, formally included the county of Madera within the general “tuberculosis control area” of the state and thereby made it a part of the state district bringing the county of Madera under the exclusive control of the agricultural department of the state with respect to the inspection, segregation and testing of beef and dairy cattle to eradicate tuberculosis therefrom. This act including Madera County in the state tubercular control area had the effect of abrogating the tubercular ordinance of that county, number 164, which was involved on this appeal. The proclamation of the agricultural department which has the effect of abrogating the ordinance in question reads as follows: