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or other weeds or grasses detrimental to rice culture, when growing in fields of rice or fields adjacent thereto, or in canals or ditches used for the purpose of conveying water to rice fields for the irrigation thereof, as herein provided,

List of eligibles-Term-Bond,] the board of supervisors shall immediately notify the state board of horticultural examiners to furnish them a list of eligibles or competent persons as hereinafter provided, and from such list the said supervisors shall appoint a commissioner in accordance with the provisions of this chapter, whose term of office shall be for four years and until his successor shall be appointed and qualified and who shall give a bond in the sum of one thousand dollars for the faithful performance of his duties. The said term of office of any and all county commissioners heretofore or hereinafter appointed shall commence on the date of appointment, and be for a period of four years and until his successor shall be appointed and qualified, at the end of which period the said term shall terminate, and said term shall run with and be attached to said office.

[Petitions already submitted.] In any case where such petition has already been presented or submitted, or is on file at the time of the passage of this act, as the basis for the appointment of a board of horticultural commissioners under this chapter as heretofore existing, such petition shall continue in full force and effect and the board of supervisors of any county, or city and county with which any such petition has been filed, or in which any board of horticultural commissioners has heretofore existed, must appoint a county horticultural commissioner.

[Qualifications of commissioner.] The person appointed to such position must be especially qualified for his duties and must be chosen and appointed by the board of supervisors from a list of eligible persons recommended and nominated to said board as hereinafter provided. Said appointment to be made within thirty days after receipt of said list by said board of supervisors;

[Destruction of ground squirrels.] provided, this act shall in no wise affect any other act or acts providing for the destruction of ground squirrels or applying to the proceedings thereunder but it is intended to and does provide the alternative system of proceedings for the extermination of ground squirrels and gophers referred to in this act; and it shall be within the discretion of the governing body of each county, city and county, city or town herein mentioned to provide for the destruction of ground squirrels whether under the provisions of this act or under the provisions of such other act or acts; but when any proceedings are commenced under this act, the provi. sions of this act, and of such amendments as may hereafter be adopted, and no other, shall apply to all such proceedings and any provision contained in any other act or acts in conflict with the provisions hereof shall be void and of no effect as to the proceedings commenced under the provisions of this act.

[Office and expenses.] The said board of supervisors shall provide a suitable office for the said county horticultural commissioner, and shall furnish and equip the said office with all necessary furniture and effects for the proper discharge of the commissioner's duties. The said board of supervisors may also provide the county horticultural commissioner with all necessary field equipment for the proper discharge of the duties of his office. All expense ordered by the board of supervisors for such office, furniture and equipment, and for stenographic and other office help and expense shall be a county charge and the board of supervisors shall allow and pay the same out of the general fund of the county.

(State board of horticultural examiners.] A state board of horticultural examiners is hereby created consisting of the dean of the agricultural college of the University of California, the state commissioner of horticulture and the superintendent of the state insectary, who are ex-officio members of said board. They shall serve without pay and said board shall provide convenient means for the examination of candidates for appointment as horticultural commissioner.

[Expenses.] While in the performance of their duties as members of said board they shall be allowed all their necessary expenses for traveling, printing, postage and other incidental matters to be paid out of any appropriations made for the support of the office of the state commissioner of horticulture.

[Notice of examinations.) At least thirty days before the date of the examination of candidates for the said appointment the state board of horticultural examiners shall post or cause to be posted in three public places in said county a notice of the time and place at which such examination will be held, setting forth the conditions and subjects of said examination. At the time and place stated in said notice such examination shall be held. Said examination shall be in writing and the board of horticultural examiners may appoint one of their own number, or some other reliable, competent person to conduct the holding of such examination in each county and forward the papers of each applicant to the board for consideration.

[List of competent-Appointment.] Within twenty days after the examination is held said examiners shall certify to the board of supervisors of the county, or city and county for which the examination was had, the names of such persons examined as they deem competent and qualified for the office and from the list of names so certified the supervisors shall, within thirty days after the receipt of said list of names, appoint a horticultural commissioner.

[State board of horticultural examiners shall appoint, when.] If for any reason the board of supervisors refuse or neglect to appoint a county horticultural commissioner at the expiration of the thirty days, or if they refuse or neglect to appoint a county horticultural commissioner to fill an unexpired term as elsewhere provided in this act, then the state board of horticultural examiners shall select and appoint a county horti. cultural commissioner from the list of qualified persons certified to the board of supervisors of that county, whose term of office shall be for four years, and until his successor has qualified.

[Compensation.) Whenever the state board of horticultural examiners shall appoint a county horticultural commissioner as herein provided, then the county board of supervisors must provide for the payment of such appointee's compensation and expenses in the same manner as if such appointment had been made by the board of supervisors. As far as possible the board of horticultural examiners shall consult the resident horticulturists of the county in determining the responsibility and moral qualifications of candidates for appointment as commissioners and whose names they certify to the boards of supervisors of the several counties.

[When no one qualifies.) If no person or persons present themselves for examination before said board of horticultural examiners or if after such examination no person is found qualified, the state board of horticultural examiners shall name five competent persons and certify them to the board of supervisors and from these names the board of supervisors shall, within thirty days after the receipt thereof, appoint a county horticultural commissioner, and in such event the commissioner so appointed shall hold office for the term of one year.

In case of vacancy in the office of horticultural commissioner the vacancy shall be filled first from the list of eligibles certified to the board of supervisors under the provisions of this chapter, and if there be no person named on the said list of eligible persons as in this section first above provided, then said vacancy shall be filled from the list of competent persons named as in this section last above provided, and if said vacancy shall be filled from the said list of eligibles, the said person so appointed shall hold for the balance of the unexpired term, but if the said vacancy be filled from the said list of competent persons, the said person shall hold for the balance of the unexpired term, if the said unexpired term be not longer than one year, but if said unexpired term be longer than one year then such person shall not by virtue of such appointment hold longer than one year from the date of his appointment.

[New list of qualified persons—Incumbent included.] At the expiration of the term of office of the county horticultural commissioner, the state board of horticultural examiners shall submit to the board of supervisors of that county where such term shall have expired a new list of qualified persons who shall have qualified before said board of hor. ticultural examiners by examination as provided in this section, such list to include without further examination any person who has previously qualified before the state board of horticultural examiners, and who has held office as county horticultural commissioner or deputy horticultural commissioner for a term of at least two years immediately preceding the expiration of the term of county horticultural commissioner and in the county where such term shall have expired.

[County board of horticultural commissioners superseded.] Whenever elsewhere in the laws of this state reference is made to a county board of horticultural commissioners such reference must be understood to mean or relate to the county horticultural commissioner herein provided for and said county board of horticultural commissioners and the members thereof shall cease to exist; provided, that all county boards of horti. cultural commissioners existing at the time of the passage of this act shall continue in office, with full power as heretofore existing until the election or appointment to succeed them of a county horticultural commissioner under the provisions of this act.

[Disqualification of commissioner.] Upon the petition of twenty-five resident freeholders each of whom is possessed of an orchard, greenhouse or nursery, the state board of horticultural examiners may disqualify a county horticultural commissioner for neglect of duty or malfeasance in office after a hearing of the petition.

[Hearing.] Such hearing must be held at the county seat of the county where such petition is filed, and notice in writing of the time and place of such hearing and a copy of the petition must be served on the accused horticultural commissioner at least ten days prior to the date of said hearing. At such hearing the state board of examiners shall hear such evidence as is offered and thereafter make an order, either sustaining or disqualifying the accused. In case of such disqualification the board of supervisors of the county where the county horticultural commissioner has been disqualified shall upon the request of the state board of horticultural examiners remove said commissioner of horticulture and shall immediately proceed to fill the said office for the unexpired term as in cases of vacancy as hereinbefore provided.

History: Enactment approved March 21, 1907, Stats. and Amdts. 1907, p. 801, Kerr's Stats, and Amdts. 1906-7, p. 139; amended. March 6, 1909, Stats. and Amdts. 1909, p. 185; March 25, 1911, Stats. and Amdts. 1911, p. 490; May 17, 1917, Stats, and Amdts. 1917, p. 627. In effect July 27, 1917.

1. Construction - Proceeding in invitum for public benefit.-The effect of this and the three following sections is to impose upon the property owner, without his consent, the burden of the expense of fumi gating his orchard. It is a proceeding in

invitum for the public benefit. The statutory method of procedure must be substantially followed in order to create a valid lien against the property.-San Bernardino County v. Stewart, 173 Cal. 236, 159 Pac. 717.

82322a. DUTY OF COMMISSIONER. It shall be the duty of the county horticultural commissioner in each county, whenever he shall deem it necessary to cause an inspection to be made of any premises, orchards or nurseries, or trees, plants, vegetables, vines or fruits, or any fruit-packing house, storeroom, salesroom, or any other place or article in his jurisdiction, and if found infected or infested with infectious diseases, scale insects, or codlin moth, or other insect or animal pests injurious to fruits, plants, vegetables, trees or vines, or with their eggs or larvæ, or if there is found growing thereon the Russian thistle or saltwort, Johnson grass or other noxious weeds, or red rice, water-grasses or other weeds or grasses detrimental to rice culture,

[Notice to destroy pests.] he shall in writing notify the owner or owners, or person or persons in charge, or in possession of the said places or orchards or nurseries, or trees or plants, vegetables, vines, or rice fields, or fields adjacent to rice fields, or canals or ditches used for the purpose of conveying water to rice fields for the irrigation thereof, or fruit, or article as aforesaid, that the same are infected or infested with said diseases, insects, animals or other pests, or any of them or their eggs or larvæ, or that the Russian thistle or saltwort, Johnson grass or other noxious weeds, or red rice, water-grasses or other weeds or grasses detrimental to rice culture, is growing thereon, and require such person or persons, to eradicate, or destroy or to control, to the satisfaction of the county horticultural commissioner the said insects, animals or other pests, or their eggs or larvæ, or Russian thistle or saltwort, Johnson grass or other noxious weeds or red rice, or water-grasses, or other weeds or grasses detrimental to rice culture, within a certain time to be therein specified.

[Service of notice.] Said notices may be served upon the person or persons, or either of them, owning or having charge, or having possession of such infested place or orchard or nursery, or trees, plants, vegetables, vines, or fruit, or articles, as aforesaid, or premises where the Russian thistle or saltwort, Johnson grass or other noxious weeds or red rice, water-grasses, or other weeds or grasses detrimental to rice culture, shall be growing, or upon the agents of either, by any commissioner, or by any person deputed by the said commissioner for that purpose in the same manner as a summons in a civil action.

[When pests are on public property.] In case infectious diseases, scale.insects, codlin moth, or other insect or animal pests injurious to fruit, plants, vegetables, trees, or vines, or their eggs, or larvæ, are found to exist on trees or shrubs in public parks or along streets, highways, or other property subject to the control of a city or county government, or if there is found growing in any public park, street, highway or on other property subject to the control of a city or county government any Russian thistle, or saltwort, Johnson grass, or other noxious weeds, or red rice, water-grasses, or other weeds or grasses detrimental to rice culture, when said public park, street, highway, or other property subject to the control of the city or county government is adjacent to rice fields, or canals or ditches used for the purpose of conveying water to rice fields for the irrigation thereof, then said notice in writing shall be served on the chairman of the governing body of said city or county, and in case the work of eradication, or of control, or of destruction of the said pests, diseases, or noxious weeds in the said public parks, streets, highways, or other public property shall be performed by the county horticultural commissioner, then the cost thereof shall become a city or county charge, as the case may be, and shall be paid from the general fund of said city or county;

[Nonresident owners, etc.) provided, however, that if any such infected or infested articles, property or premises as hereinabove specified belong to any person who is not a resident of the county, and there is no person in control or possession thereof, and such nonresident person has no tenant, bailee, depositary or agent upon whom service can be had;

[Notice posted.] or if the owner or owners of any such articles, property or premises can not after due diligence be found, then such notice may be served by posting the same in some conspicuous place upon such article, property or premises, and by mailing a copy thereof to the owner thereof at his last known place of residence, if the same is known or can be ascertained; or if not known then to the county seat of the county wherein said property is situated.

[Declared public nuisance.] Any and all such places, or orchards, or nurseries, or rice fields or fields adjacent to rice fields, or canals or ditches used for the purpose of conveying water to rice fields for the irrigation thereof, or trees, plants, shrubs, vegetables, vines, fruit, or articles thus infested or infected, or premises where the Russian thistle or saltwort or Johnson grass or other noxious weeds, or red rice, watergrasses, or other weeds or grasses detrimental to rice culture, or where any squirrels, gophers or other predatory animals shall be found are hereby adjudged and declared to be a public nuisance; and whenever any such nuisance shall exist at any place within his county, and the proper notice thereof shall have been served as herein provided, and such nuisance shall not have been abated within the time specified in such notice, it shall be the duty of the county horticultural commissioner to cause said nuisance to be at once abated, by eradicating, or by controlling, or by destroying said diseases, insects, animals or other pests, or their eggs, or larvæ, or Russian thistle or saltwort, or Johnson grass or other noxious weeds, or red rice, water-grasses, or other weeds or grasses detrimental to rice culture.

[Expense of abating nuisance.] The expense thereof shall be a county charge, and the board of supervisors shall allow and pay the same out of the general fund of the county;

[Lien on property.) any and all sum or sums so paid shall be and become a lien on the property and premises from which said nuisance has been removed or abated in pursuance of this chapter. A notice of such lien shall be filed and recorded in the office of the county recorder of the county in which the said property and premises are situated within thirty days after the right to the said lien has accrued. An action to foreclose said lien shall be commenced within ninety days after the filing and record. ing of said notice of lien, which action shall be brought in the proper court by the district attorney of the county in the name and for the benefit of the county making such payment or payments, and when the property is sold, enough of the proceeds shall be paid into the county treasury of such county to satisfy the lien and costs; and the overplus, if any there be, shall be paid to the owner of the property, if he be known, and if not, into the court for his use when ascertained.

[Copy of notice filed.] Whenever a notice of eradication, or of control, or of destruction is served on any person or persons, the county horticultural commissioner may, at his option, cause a copy thereof to be filed for record in the office of the county recorder within which the said property is situated, and if the said property is encumbered with a mortgage, lien, contract, option, bond, or other encumbrance, the said county horticultural commissioner may, at his option, cause a copy thereof to be served on the person or persons holding such encumbrance.

[Lien takes precedence.] Whenever a lien is filed on a piece of property for the purpose of collection of such sums as have been expended in the eradication, or in the control, or in the destruction of insects, diseases, weeds, or animals found upon such property and a copy of a notice of the eradication, or of the control, or of the destruction shall have been filed in the office of the county recorder of the county wherein such property is situated, and served on the person or persons holding any such encumbrance, as hereinabove provided, then such lien shall take precedence over and be paramount to all other liens upon the said land excepting only the lien of taxes.

[Power to abate.] The county horticultural commissioner is hereby vested with the power to cause any and all such nuisances to be at once abated in a summary manner.

[Fumigators and sprayers.] The county horticultural commissioner shall have power and authority to prescribe and enforce rules for the examination and qualification of fumigators or sprayers who desire to engage in such business for hire, and to issue certificates to all persons whom he shall find by examination or otherwise to be duly qualified for engaging in such work.

[Certificate.] Such certificate shall be revocable whenever the county horticultural commissioner shall deem such revocation necessary. No person shall be permitted to engage in the business of fumigating or spraying for hire within the State of California for the purpose of controlling or eradicating plant pests or diseases, who has not first secured a certificate in the manner herein provided.

History: Enactment approved March 21, 1907, Stats. and Amdts. 1907, p. 801, Kerr's Stats. and Amdts. 1906-7, p. 140; amended March 6, 1909, Stats. and Amdts. 1909, p. 187; May 17, 1917, Stats, and Amdts. 1917, p. 631. In effect July 27, 1917.

1. Notice, necessity for.-The horticulture commissioner must give the notice to the owner to destroy the pests in his orchard. No valid lien can be acquired upon the property unless the notice is given to the owner, and that the same be served like a sum

mons in a civil action, on the owner or person in charge of the infested orchard, by the commissioner or a person deputized by him.-San Bernardino County v. Stewart, 173 Cal. 236, 159 Pac. 717.

$ 2322c. RECORD AND REPORT OF COMMISSIONER. It is the duty of the said county horticultural commissioner to keep a record of his official doings, and to make a report to the state commissioner of horticulture on or before the first day of October of each year of the condition of the horticultural interests in their several districts, what is being done to eradicate, or to control, or to destroy insect pests, also as to disinfecting and as to quarantine against insect and other pests and diseases, and as to the carrying out of all laws relative to the greatest good of the horticultural interests, and to furnish from time to time to the state commissioner of horticulture such other information as he may require. Said state commissioner of horticulture may publish such reports in bulletin form or may incorporate so much of the same

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