STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

June 12, 1975

Mr. George Bennett
Department of Public Safety
Public Safety Building
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 75-107

Exemptions from motor carrier compensation under 32-9-3(8) and 32-9-3 (9) for trout ranches and rabbit ranches

Dear Mr. Bennett:

You have requested an official opinion based on the following factual situations:

"X" rabbit ranch has leased several old barracks at Provo, South Dakota for the purpose of raising rabbits. They raise several thousand each year and at the present time have approximately 10,000 rabbits on hand. The ranch owns a tractor and semitrailer which is used to haul feed for the rabbits and coal that is used to heat with in the winter time.

"X" operates what is called a trout ranch and raises from 100,000 to 400,000 fish per year. Eggs are purchased and shipped to his place of business from an outside source. These eggs are hatched and then the small fish are transferred and fed in the small manmade ponds located on a creek that runs through the ranch. These trout are raised on the ranch until they reach an average length of approximately seven inches, and then they are shipped all over the United States on a truck owned by the ranch.

The questions presented are:

1. Is "X" rabbit ranch exempt from motor carrier compensation under 32-9-3(8) and 32-9-3(9)?

2. Is "X" trout ranch exempt from motor carrier compensation under 32-9-3(8) and 32-9-3(9)?

Exceptions to the definition of motor carriers required to be compensated must be strictly construed. Mitchell Produce Co. v. Morrison, 63 S.D. 127 N.W. 47 (1934).

SDCL 32-9-3(8) provides an exemption from motor carrier compensation "when operating a motor vehicle owned by a farmer of this state and used by or for the farmer in transporting property for his farming operation." In order for "X" to qualify for such an exemption, he must be a "farmer."

"Farmer" is not defined by statute in South Dakota. SDCL 2-14-1 states that "words used are to be understood in their ordinary sense ....” The issue thus becomes: Is "X" a "farmer" in the ordinary sense?

Blacks Law Dictionary, Fourth Edition, page 735 defines "farmer" as "a cultivator; a husbandman; and agriculturist."

Given that an agriculturalist is a farmer, "X" rabbit rancher is clearly a "farmer" within the meaning of SDCL 40-35-3:

For the purpose of all classification and administration of the statutes of the State of South Dakota, executive orders, administrative orders and regulations pertaining to fox, rabbit, mink, chinchilla, marten, fisher, muskrat, karakul and all other furbearing animals raised in captivity for breeding or for other useful purposes:

(1) Such animals and the products thereof shall be deemed agricultural products; and

(2) The breeding, raising, producing or marketing of such animals or their products by the producer shall be deemed an agricultural pursuit. (Emphasis added.)

Since rabbit ranching is an agricultural pursuit, it follows that a rabbit rancher is a "farmer."

It is therefore my opinion that "X" rabbit rancher is exempt from motor carrier compensation under SDCL 32-9-3(8) and 32-9-3(9) for the truck he uses in transporting property for his farming operation.

Chapter 8 of the Federal Bankruptcy Act, 11 USCA 203(r) adopts the following definition of "farmer":

An individual primarily, bona fide, personally engaged in producing products of the soil, in dairy farming, the production of poultry or livestock....

Two cases originating in California have applied the Bankruptcy Act's definition in holding that persons engaged in the business of raising rainbow and brook trout in artificial ponds fed by natural springs until the trout reached a marketable size were not farmers. The rationale for the decisions in both cases was that "fish" were not "livestock" in the ordinary sense. In re Dunkly, 64 F. Supp. 10 (N.D.C. Cal., 1946); Dunkly v. Erich, 158 F. 2d 1 (9th Cir., 1946).

Cases arising under the "farmer" exemptions of the Workmen's Compensation, Insurance and Safety Act of 1917 have also held that one who raises trout for domestic purposes is not a farmer, and the fish he raises are not livestock. Korbitzsch v. Industrial Accident Comm. of California, 181 Cal. 541, 185 P. 346 (1919); Meader v. Unemployment Compensation Division of Industrial Accident Board, 64 Idaho 716, 136 P. 2d 984 (1943).

The definition of "livestock" given in the Restatement of Torts, Section 504 lends further support to the proposition that domesticated trout and aquatic animals are not livestock, while rabbits and other domesticated, land-based animals are livestock:

The word "livestock" is used to denote those kinds of domesticated animals and fowls normally susceptible of confinement within boundaries, without seriously impairing their utility and the intrusion of which upon land of others normally causes harm to the land or crops thereon. (Emphasis added.)

In keeping with the spirit of the Restatement definition, South Dakota statutes relating to the regulation of frog farms (SDCL 41-6-46) and private fish hatcheries (SDCL 41-6-39) are found in title 41, Game, Fish and Parks, while statutes relating to bees, poultry, rabbits and livestock are found in titles 38 and 40, agriculture and horticulture and animals and livestock.

Guided by the case authority and the statutory mandate to interpret words in their ordinary sense, I conclude that domestic trout are not livestock and that a person engaged in the business of raising trout is not a "farmer."

It is therefore my opinion that the operator of a private trout ranch is not exempt from motor carrier compensation under 32-9-3(8) and 32-9-3(9).

Respectfully submitted,

William Janklow
Attorney General

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