State v. Spaugh.

Douglas, J., after stating the facts. We think there was error in the charge of his Honor. The evidence was practically without contradiction, and the defendants should have been acquitted if the jury believed their evidence, which fully- brought them within the exception, if, indeed, the burden of proof rested upon them. The State contends (1) that the word “product,” as applied to a farm, does not include live stock; and (2) that if it does include live stock, it ap-' plies only to such as were' “produced” or dropped upon the farm, natives, so to speak. Whatever may be the strict meaning of the word, it is evident that the Legislature intended to include fresh meats,-' ' for the simple reason that it used the word in a section which, *567 by its very terms, applied solely to fresb meats. Any other construction would deprive tbe proviso of any meaning whatever. The second contention is equally untenable, considering either the letter of the law or its essential purposes. . If a fanner, and we use this word in the sense of an occupation and not a class, finds it more profitable to turn his com and grass into meat, it makes no difference to. him whether a calf is dropped on his farm or on that of someone else. What he wants is the calf, and he wants it at once. He may have more feed than stock, and may find it impossible to' dispose, of his surplus provender even at the cost of production. If he happens to raise an unusually good crop of com, it is quite likely that his neighbors have done the same thing, and therefore corn will be cheap. To compel him to haul it to a distant market, there to come in competition with Western com, or to await the slow process of “producing” a calf to eat it, can not be within the intention of the law.. Moreover, we think there is, as contended by defendants* counsel, a broad view of public policy underlying this provision of the statute, applying to the community as well as to the individual. It is to encourage the general raising, of live stock by the small farmer, which will not only be profitable to the individual, but add to the aggregate wealth of the community, and tend to preserve and increase the fertility of its lands. In this view of the law it makes no difference where the calf was dropped, as its principal value is in raising it, owing to its two distinctive qualities of converting an unmarketable crop into one more marketable. and of greater value; and at the same' time giving back to the land the greater part of what has been taken from it. One drawback in the raising of beef cattle at a distance . from the large cities is the difficulty of disposing of it in bulk, or of preserving it for home consumption.' Therefore, the *568 law leaves Ms borne market open to tbe producer. Witb our increasing tendency to small farms, and tbe absolute necessity for tbe average farmer to raise enough for bis own support, witb a little surplus to exchange for those things be can not raise, ■ it is essential that that surplus should find a ready market where it will not be eaten up by tbe cost of transportation or absorbed by tbe want of competition. Hence, tbe Legislature has confined tbe exemption to fanners, not. because they are in a sense a privileged class, for we have no privileged classes in this country, but because they are tbe only class whose occupation brings them within tbe reason of the law. Hence, we do not see why a market gardener who should raise a calf or a bog on tbe waste products of bis land, should not be equally entitled to kill it and peddle out the product. ■ And yet this must be done in good faith, which, if disputed, would be largely a question of fact. A man whose principal occupation is that of a butcher can not claim this pjfivilege simply by buying or renting a few acres of land to be used as fattening pens in furtherance of his regular business of .a butcher. In such.a case, the beeves would be his own products only to the extent of the few extra pounds of flesh he put •on them. What this law contemplates is that the meat in its essential character must be the product of the land owned or worked by the man who seeks to peddle it. There is a singular dearth of authority on this subject. The case most nearly in point seems to be that of Trustees of Rochester v. Pettinger, 17 Wendell, 265, decided in 1837. There the Court says, on page 266: “Now, if the farm was in fact used and occupied as a convenient and profitable appendage to another calling, to-wit, the business of butchering, and was not occupied and cultivated as a farm in the ordinary mode, of farming, in the common and popular acceptation of the term, he could not be considered as coming within, the exception. He would occupy it, not as a farmer, but as a butcher, with the *569 view tbe better to promote Ms business- in that line. The plain object of the ordinance was, while it protected licensed butchers, to allow farmers to come in and sell the produce of their farms.” The defendants here appear to live on their farm, and to be farmers in the truest acceptation of the term, as their regular occupation is farming, although they may occupy some of their spare time dealing in fresh meats. When they have done so,- they have paid the tax; but that does not deprive them of the right to sell the product of their own farms without tax. We have carefully considered this case, because it involves a principle of general importance, which it seeks to determine. Counsel frankly stated that this was their object, which is apparent from the record, as we can scarcely suppose that able lawyers would be employed to carry a case through all the Courts to that of last resort for the simple purpose of avoiding the payment of a single license tax of three dollars. Eo-r error in the direction of his Honor, there must be a new trial. New Trial.