The action is in conversion to recover damages of the defendant by reason of the killing of fiye 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 complamed of were done by him in pursuance to the general instructions given tó 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, *95on the 2⅞ day of April, 1908, one calf, in company with other calves, all consigned to him. Upon then- arrival at the point of destination, on the twenty-ninth of April, the calves were placed in a pen in the sto'ckyards 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 he destroyed and disposed of in such manner as to make it impossible to he 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 *96' appeal to the interpretation of the evidence most favorable to him. We must start, therefore, with the assumption that the éalf 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 traeed 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 con-, serve any other utilitarian purpose, tó 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 discretion permitted. The inflexible requirement is that the calf offered for sale must be four *97weeks of age, and if under that limit it may he seized. There is no authority to determine the age from the appearance of the animal. The statute does not provide if it is actually or apparently under four weeks of age that it may be seized, hut the language is precise, explicit “ under four weeks of age/’ and the official who seizes a calf in pursuance of the authority of this statute must he certain that the calf comes within its condemnation. The examination made, the appearance of the calf and other circumstances may he competent in order to fortify the evidence of age, and if the weight of evidence was reviewable on this appeal it might not be difficult to decide that the preponderance was with the defendant on that subject.
I think the defendant was not within the compass of his authority in seizing this calf, provided it was over four weeks of age, as we must assume. The Legislature might have vested the authority to seize if the animal is actually or apparently under four weeks of age, and in that event the agent of the Commissioner of Agriculture acting in good faith might be exonerated of liability even though the calf exceeded the age limit. The power to prescribe when private property may he taken or destroyed without compensation because it is deleterious to public health is lodged with the Legislature and the courts cannot enlarge the scope of that authority. ■
There is no claim that the calf was unhealthy. It was immature and the flesh flabby and stringy, hut it was not diseased. The “good healthy condition” referred to in the statute is a condition apart from that of age and signifies disease or some defect rendering the meat deleterious to the health of persons eating it. The calf was not taken and the case was not defended on that ground, hut because the animal was under four weeks of age.
I think the nonsuit as to the first cause of action was error.
2. The second cause of action ■ grows out of the seizure of four calves by the defendant in the Union Stockyards and which were indisputably under four weeks of age. On the 30th of January, 1909, the plaintiff at Ldwville, Lewis county, con*98signed to himself at the Union Stockyards in New York city eighty-five or ninety calves and four fresh milch cows, and with each cow was its calf and they were, from ten days to two weeks old. When they arrived at the stockyards all the calves,- including these four, were placed in a pen together and where calves were to be sold and exposed for sale. They arrived on Sunday and on that day the defendant, with other agents, examined 'a large number of calves and, among others, seized these four of the plaintiff’s and they were subsequently carted to the slaughter house and killed. Section 106 of the Agricultural Law1 contains this clause: ‘e Any person or persons exposing for sale, selling or shipping any calf or carcass of the same will he presumed to he so exposing, selling or shipping the said calf or carcass of the same for. food.”' The shipment of these calves and herding them with a large number which were to he sold for food established the presumption that these four were to-he exposed for sale for a like purpose. The statute empowering; the agent of the Commissioner of Agriculture provides that he may examine any calf offered for sale “or kept with any stock of goods apparently exposed for sale;” and if the calf was under four weeks of. age may seize and cause it to he destroyed. The. defendant when he found these.four immature calves obviously under four weeks of age collected with a large number in a sales pen, was called upon to take, prompt action, otherwise they might .be sold with the others. As they were kept with a stock of calyes “ apparently exposed for sale,” he was within the strict letter of the statute in seizing them.as he did.
The plaintiff seeks to find shelter in the clause of the statute which reads that “ any person or persons shipping any calf for the purpose of being. raised, if the said calf is under four weeks of age, shall ship it in a crate, unless said calf is accompanied' by its dam. ” This clause relates to the shipment,' and does not apply where the dam and calves after having reached the • shipping destination are separated and the calves are put in with a large number of others which are to be sold for food. The plaintiff was not present when the separation was made. The defendant, however, was in the line of his duty to. prevent the sale of the calves under the prescribed age, and he was not called upon to ascertain the *99motives which induced the collection of these calves in the sales pen, or whether they were placed there by the authority of the plaintiff, The agent was confronted with a condition requiring the exercise of his authority, and he was warranted from what he saw in seizing these animals for destruction. That evening the plaintiff came to the stockyards and after informing the agent that the calves were to be sold with their dams, importuned him to let them go to their mothers. The defendant did not see fit to rely upon the statements of the plaintiff to overcome. the presumption arising from the herding of these calves in a pen- where calves for sale were accustomed to be gathered, as the defendant knew. In this determination he exercised his discretion upon the facts and circumstances as they were presented to him and which justified the course he pursued.
Sunday was not sales day, and the plaintiff claims for that reason the calves were not exposed for sale. The evidence shows that while the stockyards aro prohibited from being open for sales-on that day, sales in fact were made on Sunday to butchers and others known' to the men in charge of the stockyards. The defendant was not obliged to- remain there until after midnight in order to keep track of these calves. Long experience in the examination of calves and other animals at these stockyards made him cognizant of the practices prevailing and the necessity for prompt decision and action in order to prevent the sale of -animals within the condemnation of the law.
I think the court was right in granting the nonsuit as to this cause of action.
. 3. There is no allegation in the complaint and no claim that the defendant in seizing these calves to be destroyed acted maliciously or in bad faith. He was endeavoring to perform his official duties honestly and'fairly as he understood them. The complaint is an ordinary action hi conversion, charging that the defendant “ wrongfully and unlawfully and without any right or authority seized ” and converted the said property; and in the second cause of action the damage claimed is to the milch cows which were alleged to be of less ■ value because the calves, their offspring, had been taken from them. *100In so far as the seizure by tbe defendant was within the letter of the statute he is not pefsonally liable to an action for damages. Laws enacted in pursuance of police power to abate nuisances or to benefit the health of the public which may result in the destruction of private property and which do not provide for any payment therefor to the owner are not. vio-lative of the constitutional inhibition against taking private property for a public use without compensation. (Health Department v. Rector, etc., 145 N. Y. 32, 43; Mugler v. Kansas, 123 U. S. 623; Lawton v. Steele, 119 N. Y. 226.)
The abatement of a nuisance, or its regulation, is within the scope of legislative authority, and we would not expect the act in terms to authorize the annihilation of property. In effectuating the primary purpose of the power conferred to get rid of the.nuisance or offense against public health,private property may be incidentally destroyed of its value impaired, and yét it is not an appropriation in the sense of infringing upon the constitutional guaranty assuring immunity to the owner of property against its taking for a public use. Before an officer can justify any such invasion of private-property the legislative authority must be clear and unequivocal, and he must keep strictly within the power conferred. (People ex rel. Copcutt v. Board of Health, 140 N. Y. 1; Underwood v. Green, 42 id. 140; Miller v. Horton, 152 Mass. 540; Litchfield v. Bond, 186 N. Y. 66, 74; Lowe v. Conroy, 120 Wis. 151.)
In the first case cited, the board of health of the city of Yonkers passed an ordinance declaring certain dams within the municipality nuisances and directing their abatement. Their authority was challenged and it developed in fact that the dams were not'nuisances, and the board’s actions were reviewed by certiorari. The court in considering the finality of the determination of the board used this expressive language (at p. 8): “It may be'said that if the determination of a board of health as to a nuisance be not final and conclusive, then the members of the board, and all persons acting under their authority in .abating the alleged nuisance, act at their peril; and so they do, and no other view of the law Would give adequate protection to private rights. They should not destroy property as a nuisance-unless they know it to be such, and if *101there he doubt whether it he a nuisance or not the hoard should proceed by action to restrain or abate the nuisance, and thus have the protection of a judgment for what it may do.”
In the State of Massachusetts there was a statute in force authorizing’ the summary killing of an animal afflicted with the glanders or farcy, and there was no provision for compen- ' cation to the owner. The commissioners- on contagious dis eases of annuals examined, or caused to he examined, a horse owned by the plaintiff and decided the animal was afflicted with this contagious disease, condemned it and formally recited the facts in a written notice to the hoard of health of the village where the owner of the horse lived, and directed the owner “ to cause it to he killed forthwith,” which was done. Subsequent investigation disclosed that the horse was not afflicted with the glanders and the members of the board were held' individually liable for the value of the horse killed. (Miller v. Horton, 152 Mass. 540, supra.)
There is a wide divergence in the authorities of the various State jurisdictions on this question, many holding that the officials are not liable individually or in their official capacity for errors of judgment of the kind stated. The weight of authority, however, seems to be the other way. I, therefore, think that in directing’ the killing of the calf, which the evidence most favorably viewed for the plaintiff shows was over four weeks of age, the defendant exceeded his authority and is individually liable for the value thereof, and the nonsuit was error.
The judgment and order should be reversed.
All concurred, except McLennan, P. J., who dissented, in an opinion.