State v. Sand Hills Beef, Inc. , 196 Mont. 77 ( 1981 )

No. 80-350
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
STATE OF MONTANA, Department of
Livestock,.
Petitioner and Appellant,
SAND HILLS BEEF, INC.,
Respondent and Respondent.
Appeal from: District Court of the Thirteenth Judicial Disrict,
In and for the County of Big Iloxn, The Honorable
Diane G. Barz, Judge presiding.
Counsel of Record:
For Appellant:
James E. Seykora, Special Asst. Atty. General,
Hardin, Montana ( County Attorney)
For Respondent:
Holmstrom, Dunaway & West, Billings, Montana
Submitted on Briefs: May 8, 1981
Decided: OEC 2 1 1%
Filed: [IEC 2 1 W8F
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
The Department of Livestock (Department) appeals from a
judgment of the Yellowstone County District Court which
ruled that the Department could not recover against Sand
Hills Beef, Inc. for its claimed outbreak of scabies, and
for supervising the cattle dipping. The issues turn on an
interpretation of section 81-2-109, MCA, which permits
expenses to be recovered by the Department, but which does
not set out the particular expenses recoverable. For reasons
stated in this opinion, we affirm the judgment.
The trial court construed section 81-2-109 as a penal
statute and therefore properly held that it must be strictly
construed. Based on this construction, the trial court
entered the following rulings, all of which are appealed by
the Department:
1. Travel expenses, per diem, and expenses of investi-
gation are not expressly provided for and must be denied.
This included a ruling on the Department's rental of an
airplane.
2. The statute expressly excepts the salary of the
"supervisory officer representing the Department," and
because all of the personnel present from the Department
were acting in a supervisory capacity, their salaries and
expenses were not recoverable under the statute. We affirm
the ruling but on different grounds.
Sand Hills Beef, Inc. (Sand Hills) is a Nebraska
corporation engaged in the production and sale of cattle.
In the spring of 1979, Sand Hills entered into a contract
for the use of grazing land located on the ranch of Jack
Owens, in Bighorn County, Montana. Sand Hills then made
arrangements for shipping approximately 4,100 head of cattle
from their feedlot in Mitchell, Nebraska, to the Jack Owens
ranch. Sand Hills personnel charged with making the arrange-
ments for this shipment operated under the mistaken belief
that the Owens ranch was located in Wyoming. Actually, the
ranch lies several miles north of the Wyoming border in
Montana. Pursuant to this mistaken belief, Sand Hills
complied with the Wyoming livestock and health laws and
regulations, including obtaining brand papers, brand inspections,
health inspections, and dipping the cattle before shipment.
The cattle were dipped for scabies (a communicable disease
affecting cattle) before their shipment into Montana.
During the early spring of 1979, the shipment of the 4,100
head of cattle to the Owens ranch was completed.
In late April or early May, the Department became aware
of the fact that cattle had been brought into the state
without the proper health certificates, import permits, and
notification required by Department regulations. (Section
32.3.205 A.R.M.) After further investigation revealed that
the cattle had originated from an area in Nebraska where
scabies had been a problem, the Department acted immediately
to enforce compliance with Montana laws and regulations.
These regulations, among other things, required that all
cattle, upon being brought into the state, be dipped for
scabies under Department supervision. This requirement
exists notwithstanding the fact that the cattle (as in this
case) may have been dipped before shipment. The Department
assigned three employees to supervise the quarantine and
dipping of the Sand Hills cattle. A quarantine order was
issued and delivered to the president of Sand Hills on May
30, 1979. Later, Sand Hills pleaded guilty to a misdemeanor
offense of import violation in justice court in Bighorn
County.
-3-
After being informed of the mistake as to the location
of the Owens ranch, Sand Hills cooperated fully with the
Department in the quarantine and dipping of the cattle.
Sand Hills provided the dipping tank, all of the equipment,
chemicals, and personnel necessary to perform the actual
dipping operation at an expense to them of about $11,000.
Department personnel were on hand to supervise the procedure:
Dr. Glosser, the state veterinarian and head of the Department
was the overall supervisor on behalf of the state; E. E.
"Cork" Mortensen, the supervisor of the import-export section
of the Department, was present to observe the actual dipping
of the cattle; Ron Reed, district inspector for the brand
enforcement division of the Department was also present for
the purpose of counting the cattle to insure that all of
them were treated. All three men had participated in the
investigation of the import violation and in the supervision
of the quarantine order issued on May 30.
Dipping, under the supervision of the Department,
started on June 12, and continued through June 19, 1979.
The Department, without the knowledge of Sand Hills, chartered
a private airplane to fly over the Owens ranch to assure
that all of the cattle had been rounded up, and to determine
whether any other local cattle had been exposed to the Sand
Hills cattle. But Sand Hills personnel actually rounded up
all the cattle and performed all of the actual labor related
to the dipping operation. After the dipping process was
completed on June 19, the Department issued a "press release"
stating that the import violation and possible scabies
threat had been cured.
The Department then sent a bill to Sand Hills demanding
reimbursement for the following claim:
1. Two investigator's salaries plus
benefits (Salaries of Mortensen
and Reed) $3,282.32
2. Travel and per diem (For Mortensen,
Reed and Glosser from May 30
through June 21, 1979) 2,145.48
3. Airplane rental $1,098.10
Services of pilot 364.28 1,462.38
TOTAL -
$6,890.18
The statute providing for expenses, section 81-2-109,
MCA, provides:
"81-2-109. Expenses, how paid--lien and foreclosure.
The expenses of inspecting, testing, supervision of
quarantine, supervision of dipping, supervision of
disinfection, and supervision of other treatment of
diseased or exposed livestock by the department and
the sanitary inspection of dairies, packinghouses,
meat depots, slaughterhouses, milk depots, and other
premises shall be paid for by the department. However,
the owner of the livestock or property is liable for
all expenses, except the salary of the supervising
officer representing the department, when the owner,
agent, or person in charge of the livestock or property
has violated the rules of the department. These
expenses are a lien on the livestock or other property,
and the department may retain possession of the livestock
until the charges and expenses are paid. The lien is
not dependent on possession and may be foreclosed in
the name of the agent in the department by sale at public
auction of the stock or as many as may be necessary to
pay the sum of the costs, after 10 days' notice by posting
in three public places in the county. The lien may also
be foreclosed by an action in a court of competent
jurisdiction against the owner of the livestock to
recover the amount of charges and expenses."
The Department later adjusted its statement to $6,755.57.
This adjustment came about because the Department eliminated
a claim for the pilot's services, but also added a claim for
$218.57 as being the "claims of Bighorn County." Sand Hills
believed that this claim for reimbursement contained not
only irregularities but claims that could not be allowed.
It refused to pay according to the demand, but apparently in
an effort to release the lien on the cattle, which is provided
by statute, Sand Hills deposited $6,754.57 with the Bighorn
County Clerk of Court to satisfy any possible claims for
expenses.
On May 30, 1980, the Department filed suit to collect
for its claimed expenses incurred in the cattle dipping
operation. At the hearing on July 22, 1980, counsel for
Sand Hills, in cross-examining the Department's witnesses,
demonstrated a number of improper claims which the Department
had charged to Sand Hills. The trial court denied all of
the Department's claims and this appeal followed.
The Department argues that the phrase "all expenses,"
as used in the second sentence of section 81-2-109, MCA,
must be interpreted liberally to allow recovery of any
expenses which the Department sees fit to recoup. The
Department ignores, however, the well-known common law and
statutory rule that particular expressions will qualify and
define those which are general. Burke v. Sullivan (1954),
127 Mont. 374, 265 P.2d 203, 205; section 1-3-225, MCA (as
recodified, in existence since 1891). Therefore, the phrase
"all expenses" must be limited to those expenses particularly
described in the first sentence of the statute.
The Department may recover only those expenses which
are directly related to one or more of the activities applied
here, the activities falling within the statute are "super-
of -
vision - quarantine" and "supervision of dipping." An
expense not directly related to these prescribed activities
cannot be recovered.
Section 81-2-109, MCA, although not a criminal statute,
imposes a liability upon private individuals for the violation
of governmental rules, and is in essence a penal statute.
The test in determining whether or not a statute is penal in
nature is "whether the wrong sought to be redressed is a
wrong to the public or a wrong to the individual . . ."
Huntington v. Attrill (1892), 146 U.S. 657, 13 S. Ct. 224, 36
L. Ed. 1123. Here the Department seeks to redress a violation
of Department rules which are clearly public in nature.
Accordingly, section 81-2-109 is properly viewed as a penal
statute to be strictly construed. We have stated: "This
court is committed to the wholesome and generally recognized
rule that statutes imposing burdens, either civil or criminal,
upon the citizens must be clear and explicit." State v.
Nagle (1935), 100 Mont. 86, 45 P.2d 1041. (Emphasis added.)
The Department may not recover expenses unless it affirmatively
shows that such expenses are clearly within the purview of
the statute. We proceed then to the individual claims.
EXPENSES OF INVESTIGATION
Section 81-2-109, MCA, does not mention recovery of
expenses incurred by the Department during the course of
an investigation of a possible import violation. Strict
construction demanded of penal statutes require a holding
that the investigatory expenses charged to Sand Hills are
not recoverable under this statute.
TRAVEL AND PER DIEM
The Department attempted to charge Sand Hills for the
travel expenses and per diem incurred by three of its employees
from May 30 through June 21, 1979. This period encompasses
the "investigation," quarantine, and dipping, and several
days after the dipping of the cattle was completed. Because
the actual dipping took place from June 12 through June 19,
it is obvious that the travel expenses and per diem charged
to Sand Hills went well beyond those dates. In fact, there
was no showing at trial as to what expenses were properly or
reasonably incurred while the Department was actually engaged
in the supervision of the cattle dipping.
The concept of "expense," even as it is strictly construed
under section 81-2-109, MCA, may properly include travel and
per diem expenses. Nonetheless, it is the burden of the
Department to show that the expenses were reasonable and
necessarily related to the activities defined in the first
sentence of section 81-2-109. The Department has not met
this burden.
THE AIRPLANE EXPENSES
The Department may conceivably have compelling reasons
to rent a private airplane in the course of supervising a
quarantine issued by the Department. If it is shown that
incurring such an expense is the only effective method of
supervising the quarantine, the expense would be properly
recoverable under section 81-2-109, MCA. There was no such
showing here.
Testimony of the Department's witnesses establishes
that, after the imposition of the quarantine on May 30,
1979, Sand Hills cooperated fully with the Department. Sand
Hills knew the exact number of cattle subject to the quarantine,
and Sand Hills employees promptly began to round them up for
dipping. Despite this cooperation, the Department made no
effort to determine the total number of cattle to be dipped.
Rather than counting each animal as it was dipped, and then
segregating them from the untreated animals, and then comparing
that count with the total number of animals illegally brought
into the state, the Department chose instead to rent an
airplane to determine that all of the animals had been
rounded up for dipping. The Department offered no evidence
to show that the size of the ranch or the immediacy of the
situation prevented the Department from performing its
supervisory duties in a less expensive way. The ruling of
the trial court denying the airplane expense is affirmed.
SALARY OF "SUPERVISING OFFICER"
Section 81-2-109, MCA, expressly precludes recovery of
the salary of the "supervising officer" representing the
Department. Use of "officer" rather than "officers" clearly
indicates that only one such employee may be deemed as the
"supervising officer." In fact, before the amendment of
this statute in 1974, the statute prohibited the recovery of
the salary of the "supervising officer - officers."
or The
amendment which deleted "or officers" indicates a legislative
intent to limit this exclusion to - employee of the Depart-
one
ment.
Here the "supervising officer representing the department"
was Dr. Glosser. Therefore, the portion of the salaries of
Reed and Mortensen relating directly to their time spent
supervising the quarantine and dipping of Sand Hills cattle,
should be recoverable. The Department did not, however,
adequately show the precise number of hours that these
employees spent in the course of supervising the quarantine
and cattle dipping.
The record further demonstrates carelessness and over-
reaching on the part of the Department in computing the
expenses charged to Sand Hills. For example, the Department
attempted to recover exact payment for expenses incurred
during the "investigation" of the import violation. The
statute does not allow recovery for this expense. One of
the claimed expenses involved sending the Bighorn County
Attorney and an undersheriff to Nebraska. The propriety of
necessity of such a trip was never established at trial.
Dr. Glosser testified that the Department charged Sand Hills
for his expenses incurred while attending a Bighorn County
Livestock Association meeting. This meeting was unrelated
to any of the Department's duties described in section 81-2-
109, MCA.
In addition, Department witnesses testified that some
of their time for which the Department billed Sand Hills was
spent on matters entirely unrelated to the Sand Hills
affair. Mortensen testified that he was uncertain how many
of his hours charged to Sand Hills were directly related to
the actual supervision of quarantine and dipping.
It is clear that although a part of the salaries of
Mortensen and Reed should be recoverable, the carelessness
of the Department has made recovery impossible. We therefore,
again affirm the ruling of the trial court.
The record demonstrates extreme carelessness by the
Department in reviewing the expenses charged to Sand Hills.
Many of the expenses were patently not within section 81-2-
109, and many others were questionable. Nor was there any
attempt by the Department to categorize the expenses so that
Sand Hills, or the trial court, could intelligently review
them. Instead, the Department in effect shotgunned its
expenses and made a naked demand for payment.
The order of the District Court denying all expenses is
affirmed.
We Concur:
~hj/e'kJustice /-I
u Justices
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