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AGO 1960 No. 145 - September 27, 1960
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John J. O'Connell | 1957-1968 | Attorney General of Washington


The animal feeding demonstrations sponsored by the Washington State Dairy Council and properly conducted in the public schools do not fall within the provisions of chapter 16.52 RCW.

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                                                              September 27, 1960

Honorable Lloyd J. Andrews
State Superintendent of Public Instruction
Old Capitol Building
Olympia, Washington                                                                                          Cite as:  AGO 59-60 No. 145

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on a question which we paraphrase as follows:

            Does chapter 16.52 of the Revised Code of Washington relating to the "Prevention of Cruelty to Animals" prohibit (in the public schools) demonstrations and/or experiments on live animals, such as the "Animal Feeding Demonstrations" sponsored by the Washington State Dairy Council?

            We answer this question in the negative as explained in our analysis.


            At the outset we deem it advisable to discuss briefly the nature of the feeding demonstrations here in question.  In a publication of the Washington State Dairy Council, the so-called "rat feeding demonstration," is completely described and the purpose thereof is clearly stated.  In part, the report states:

            ". . . Last year over 100 schools had projects from the fifth grade through high school.  It is one of the most effective teaching devices in stimulating awareness of food in relation to growth and health.  People are often told that certain foods are important, but it is difficult to see  [[Orig. Op. Page 2]] the effect of food on the body.  This demonstration with white rats, bred disease free, is one way to show that foods work together to promote healthy growth.  Rats will eat approximately the same foods people do and respond to various diets in much the same way.  They have a short life span and grow so rapidly that students may observe in six to eight weeks, results that might take years to observe in humans.

            "Four rats are used for the demonstration.  Two are fed a well-chosen diet and two are fed a poorly-chosen diet.  The well-chosen diet represents combinations of foods equal to four servings a day of green and yellow vegetables and fruits, including a generous amount of citrus fruit; two or more servings a day of meat, fish, eggs, poultry, or cheese; milk in amounts equal to a quart a day.  Desserts, including ice cream, are represented in moderate amounts.  Butter is included up to about three tablespoons a day.  This diet supplies generous amounts of all the nutrients necessary for good growth.

            "In contrast, the poorly-chosen diet is not well balanced, though it contains foods from each group of the Basic Four.  While the foods are the same in both diets, the second one contains few fruits and vegetables other than potatoes.  There is no milk to drink and only one half cup represented in the cooked foods.  There are larger amounts of pie, cake, cookies, and other starchy or rich foods.  The poorly-chosen diet represents one a boy or girl often eats when he is careless about choosing foods which are low in protein, calcium, and vitamins.  Both diets, however, have about the same food energy or calorie value."  (Emphasis supplied.)

            A complete copy of the above report is enclosed for your information and consideration.

            We have also read and considered the booklet prepared by and published by the National Dairy Council on this subject.  We have been advised too, that these feeding demonstrations have been carried on in the public schools of this state for over twenty years.

            In your letter you stated that, in response to some recent criticism of the use of live animals in such demonstrations, a meeting of interested persons was held in your office.  As a result thereof, you determined that a legal  [[Orig. Op. Page 3]] opinion was necessary to finally resolve the question as to whether the demonstrations constituted cruelty to animals.

            In 1901 an act was passed by our legislature "for the more effectual prevention of cruelty to animals."  See chapter 146, Laws of 1901.  This act is codified as a part of chapter 16.52 of the Revised Code of Washington [[chapter 16.52 RCW]].  The only statute defining certain acts as "cruelty" which might be applicable to the instant situation is RCW 16.52.070.  It reads as follows:

            "Every person who cruelly overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, cruelly beats, mutilates or cruelly kills, or causes, procures, authorizes, requests or encourages so to be overdriven, overloaded, driven when overloaded, overworked, tortured, tormented, deprived of necessary sustenance, cruelly beaten or mutilated or cruelly killed, any animal; and whoever having the charge or custody of any animal, either as owner or otherwise, inflicts unnecessary suffering or pain upon the same, or unnecessarily fails to provide the same with the proper food, drink, . . . shall be guilty of a misdemeanor."  (Emphasis supplied.)

            Every person convicted under the provisions of the above statute ". . . shall be punished by a fine of not exceeding one hundred and fifty dollars, or by imprisonment in the county jail not exceeding sixty days, or both such fine and imprisonment, and shall pay the costs of the prosecution."  RCW 16.52.165.

            It is a general rule that criminal statutes should be construed strictly against the state and in favor of the accused.  City of Seattle v. Green, 51 Wn. (2d) 871, 322 P. (2d) 842 (1958); State v. Thompson, 38 Wn. (2d) 774, 232 P. (2d) 87 (1951); State v. Hoffman, 30 Wn. (2d) 475, 191 P. (2d) 865 (1948).  In State v. Rinkes, 49 Wn. (2d) 664, 306 P (2d) 205, (1957), the court said:

            "Penal statutes are to be construed strictly, to the end that offenses not entitled to be included shall not be prosecuted.  But they are not to be construed so strictly that they would be defeated by a forced and overstrict construction.  State v. Larson, 119 Wash. 123, 125, 204 Pac. 1041 (1922), and cases cited.

            "Strict construction of a penal statute means merely that the punitive sanctions must be confined to such matters as are clearly and manifestly within the statutory terms and purposes. . . ." (Emphasis supplied.)

             [[Orig. Op. Page 4]]

            With this rule in mind we will proceed to apply the same in construing RCW 16.52.070 supra.  The key words and phrases, insofar as the instant inquiry is concerned, are "animal," "necessary sustenance," "unnecessary suffering or pain," and "unnecessarily fails to provide the . . . [animal] with proper food and drink."

            The following definitions are found in RCW 16.52.010:

            "[1] . . . the word 'animal' shall be held to include every living creature, except man; [2] the words 'torture,' 'torment,' and 'cruelty,' shall be held to include every act, omission or neglect whereby unnecessary or unjustifiable physical pain or suffering is caused or permitted; . . ." (Emphasis supplied.)

            In Waters v. People, 23 Colo. 33, 46 Pac. 112 (1896), the Colorado Supreme Court in discussing a question concerning "cruelty to animals," stated:

            "Every act that causes pain and suffering to animals is not prohibited.  Where the end or object in view is reasonable and adequate the act resulting in pain is, in the sense of the statute, necessary or justifiable, as where a surgical operation is performed to save life, or where the act is done to protect life or property or to minister to some of the necessities of man."

            Thus, in every case of this nature, it must be determined: (1) Is there any physical pain or suffering involved in the demonstration?  (2) If so, is the same necessary or justifiable?  Before there can be any violation of our statute, the first question must be answered in the affirmative; the second in the negative.  You will readily see, and agree, we believe, that no criminal prosecution will be successful unless based upon a set of facts which bring the case "clearly and manifestly within the statutory terms and purposes."  See State v. Rinkes, supra.

            Accordingly, we can only advise you that, from the information we have before us, we cannot conclude that the "rat-feeding demonstrations" sponsored by the Washington State Dairy Council fall within the provisions of RCW 16.52.070 supra.  We cannot find that there is any "physical pain or suffering" inflicted during such demonstrations.  However, even if we were to assume this to be true for the sake of argument, we would not be in a position to state whether the demonstrations are "necessary" or "justifiable."  Most certainly, if reliance were placed on the Report of the Washington State Dairy Council, referred to hereinbefore, a very good argument could be made that the demonstrations are "justifiable."

             [[Orig. Op. Page 5]]

            We recognize and appreciate the activities and beliefs of the many individuals and societies that prompted this inquiry.  However, we must look only to the pertinent legislative enactments.  Like the courts in construing statutes, we cannot concern ourselves with their wisdom.  This province is solely for the legislature.  Port of Tacoma v. Parosa, 52 Wn. (2d) 181, 324 P. (2d) 438 (1958),

            In view of the manner in which we have answered your question it is not necessary for us to determine at this time whether the provisions of chapter 16.52 RCW apply to school districts.

            We trust the foregoing information will be of assistance to you.  However, if you have any further questions concerning this matter, please feel free to contact this office.

Very truly yours,

Attorney General

Assistant Attorney General

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