EDWARD E. WILLIAMS, Appellant,
MERVIN S. RIVENBURG, Respondent.
APPEAL by the plaintiff, Edward E. Williams, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Lewis on the 28th day of April, 1910, for costs upon a nonsuit granted by the court after a trial at the Lewis Trial Term, and also from an order entered on the 18th day of April, 1910, denying the plaintiff's motion for a new trial made upon the minutes.
Frank Bowman, for the appellant.
A. L. Kellogg, for the respondent.
The action is in conversion to recover damages of the defendant by reason of the killing of five calves owned by the plaintiff, and involves the construction of section 106 of the Agricultural Law (Consol. Laws, chap. 1). The defendant is the agent of the State Commissioner of Agriculture, representing that official in the city of New York, and the acts complained of were done by him in pursuance to the general instructions given to him by the head of the department.
The complaint alleges two causes of action, and they will be considered in their order.
1. The plaintiff, a cattle shipper, purchased at Rome, N.Y. , and shipped by rail to the Union Stockyards, New York city,
on the 27th day of April, 1908, one calf, in company with other calves, all consigned to him. Upon their arrival at the point of destination, on the twenty-ninth of April, the calves were placed in a pen in the stockyards in which calves were kept for sale. On April twenty-ninth the defendant, in the performance of his duties as an agent of the Commissioner of Agriculture, examined the calves in the stockyards, and seized seven on the ground that they were each under four weeks of age, and they were subsequently taken to an abattoir and killed. There were other inspectors with the defendant at the time, and a State veterinary surgeon of wide experience also examined these calves at the stockyards, and again after they were killed, and he testified the plaintiff's calf was under four weeks of age, and his testimony was corroborated by all the inspectors. The farmer who raised the calf testified that he was born March twenty-eighth, more than four weeks before he was seized by the defendant.
Section 106 of the Agricultural Law, so far as pertinent to this alleged cause of action, in prohibiting the bringing into a city, town or village of a calf for the purpose of selling the same, provides: 'Unless it is in a good healthy condition, and no person or persons shall bring any such calf or carcass of the same or any part thereof except the hide into any city, town or village for the purpose of selling, offering or exposing the same for sale, unless the calf is four weeks of age.' And, further, the act provides: 'Any person or persons duly authorized by the Commissioner of Agriculture may examine any calf or veal offered or exposed for sale or kept with any stock of goods apparently exposed for sale and if such calf is under four weeks of age, or the veal is from a calf killed under four weeks of age, or from a calf in an unhealthy condition when killed, he may seize the same and cause it to be destroyed and disposed of in such manner as to make it impossible to be thereafter used for food.' The defendant claims that he was authorized to take and kill the calf by the Commissioner of Agriculture, and his authority to represent that officer is not impugned.
In this case there was a question of fact as to the age of the calf, and as the plaintiff was nonsuited he is entitled on this
appeal to the interpretation of the evidence most favorable to him. We must start, therefore, with the assumption that the calf was over four weeks of age at the time of its seizure by the defendant. The appearances indicated that it was less than four weeks old. It was undersized. One hip was marked with shears so that in the event it was appropriated by the State authorities it could be identified and traced to the farmer of whom it was purchased. The flesh was flabby and immature, and if we were considering the weight of the evidence we might well be justified in concluding that the calf was under four weeks old in spite of the explicit testimony of the farmer who owned its dam at the time the calf was born.
The statute, however, fixes arbitrarily the minimum age at which a healthy calf may be sold or exposed for sale at four weeks. One calf only three weeks old may be well nourished and fattened and of good size, while another of six weeks of age may be scantily fed, poorly nurtured, undersized and scrawny. The larger one may be seized in pursuance of the authority given by the statute in question, while the smaller one may be exempt from seizure. It is often necessary in promulgating laws for the benefit of the public health, or to conserve any other utilitarian purpose, to establish inflexible standards. Milk containing more than eighty-eight percentum of water or fluids comes within the arbitrary definition of adulterated milk. Milk containing eighty-nine percentum of water may be more wholesome in a particular batch than that of another quantity one percentum below the standard. One batch is within the condemnation of the statute, the other not. The fixing of the inflexible standard is the result of tests and examinations extensively made and is adopted as a fairly just rule for milk generally, although in individual cases the enforcement of the law may occasionally operate unjustly.
No compensation is provided for to the owner of the calf seized, and the seizure is an invasion of his property rights and can only be supported because the enactment is in the interest of public health and a justifiable police regulation. The exercise of the right must, therefore, be within the letter of the statute. There is no ...