Can the manager of a livestock auction barn fire the state veterinary inspector who is stationed at his auction, if the manager is unhappy with the inspector?
Plain-English summary
Under SDC 1960 Supp. 40.2007, livestock auction agencies engaged in interstate shipment had to have a veterinary inspector on the premises during sales. The inspection was a public-health and animal-disease control function. The statute set up a three-way relationship: the auction agency recommended a veterinarian; the State Livestock Sanitary Board hired that veterinarian (with the approval of the federal Animal Disease Eradication Branch of USDA); and the veterinarian then worked at the auction.
The question put to the AG was a workplace authority question: could the auction manager, who was hosting the inspector at his auction barn, fire the inspector if he was dissatisfied? The AG said no.
The statute was textually clear. The Board hired the inspector. The inspector served under the Board's direction and supervision. Removal of the inspector was tied to the inspector's "failure to perform such services and duties as are required of him by the State Livestock Sanitary Board." That phrase made the Board both the hiring authority and the firing authority. The auction agency's only role under the statute was the initial recommendation.
The AG traced the statute's history. SDC 1939 40.2007 and its successors (Chapter 152 of the 1939 Session Laws, Chapter 173 of 1945, Chapter 147 of 1949) had used a different model that gave the auction agency some authority to replace an inspector on Board instruction. Chapter 203 of the 1958 Session Laws changed that. The post-1958 framework, codified at SDC 1960 Supp. 40.2007, took the replacement authority away from the auction agency and concentrated it in the Board.
The structural reason for the shift was easy to see. A veterinary inspector at a livestock auction was protecting the public, not the auction owner's commercial interests. Inspectors might catch sick animals, refuse to certify shipments, or otherwise displease the auction manager in ways that hurt the auction's revenue but served the disease-control mission. Letting the auction manager fire the inspector would let the regulated party fire the regulator, defeating the point. The 1958 framework removed that conflict by giving firing authority only to the Board.
The AG concluded: the auction agency could recommend hires, but it could not discharge an inspector. Removal required Board action based on the inspector's failure to perform Board-required duties.
Currency note
This opinion was issued in 1968. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. South Dakota's livestock sanitary statutes have been substantially restructured since 1968, with the modern framework in SDCL Title 40 (Animals and Livestock) chapter 5 (animal industry board) and related chapters. Federal animal-disease regulation has been substantially restructured as well, with USDA's Animal and Plant Health Inspection Service (APHIS) now playing the role formerly held by the Animal Disease Eradication Branch.
What the opinion meant at the time
For livestock auction managers in 1968, the opinion was a clear "you cannot." If they had a problem with the inspector, the right step was to take the complaint to the Board. The Board, not the auction, would decide whether to remove the inspector.
For veterinary inspectors, the opinion was protective. They could perform their statutory duties without fearing retaliatory firing by the auction owner. As long as they discharged the duties the Board required (disease screening, certificate issuance, recordkeeping), their job was secure against auction-side complaints.
For the State Livestock Sanitary Board, the opinion confirmed the Board's regulatory authority. The Board was the employer of record, even though the inspector worked physically at the auction. The Board could discipline or remove the inspector for failure to perform, and only the Board could do so.
For the USDA Animal Disease Eradication Branch (a federal agency with a coordinating role under the statute), the opinion respected the federal-approval step in the inspector-hiring chain. The Board hired with USDA approval. Removal was a state-level Board action, although in practice the federal interest in continued inspection at interstate auctions would matter to any vacancy that resulted.
For the public and for livestock buyers in other states, the opinion preserved the integrity of the inspection regime. An inspector who was fired by the auction would not have been a credible inspector in the eyes of out-of-state buyers and federal animal-health authorities. The opinion's "no firing by auction" rule was essential to interstate confidence in South Dakota inspection certificates.
Common questions
Q: What if the auction's recommended veterinarian was unavailable?
A: SDC 40.2007 provided that if the auction failed to recommend a veterinarian within a reasonable time, the Board could appoint one on ten days' notice to the auction agency. So the auction could not stall the inspection requirement by refusing to recommend.
Q: Could the auction refuse to allow an inspector on the premises?
A: The opinion did not address that scenario, but in practical terms, an auction engaged in interstate shipment without inspection would lose its ability to certify livestock for interstate movement, which would effectively shut down its business. The statute relied on this practical leverage rather than express compulsion.
Q: What constituted "failure to perform such services and duties"?
A: The statute did not enumerate specific grounds. The Board had discretion to interpret what failure meant in a given case. Likely grounds would have been: failure to show up for sale days, failure to inspect required animals, failure to maintain required records, or substandard veterinary practice.
Q: Could the inspector be fired for incompetence even without a specific failure to perform?
A: The statute keyed removal to failure to perform. A persistent pattern of incompetent inspection (missed diseases, wrongly certified animals) would likely qualify as failure to perform. A one-time mistake would be harder to fit.
Q: Did the inspector have due-process rights against Board removal?
A: The opinion did not address this. As a statutory employee with a position created by SDC 40.2007, the inspector probably had some procedural protections, but their scope would depend on the Board's rules and the developing constitutional law on public employee due process (which was still in flux in 1968).
Q: What was the federal Animal Disease Eradication Branch?
A: It was a division of the USDA's Agricultural Research Service in 1968, responsible for federal animal-disease programs. The Branch coordinated state-level inspection programs for interstate animal movement. Its successor function is now in USDA APHIS.
Background and statutory framework
South Dakota was a major cattle-shipping state in 1968, and livestock auctions were central to the agricultural economy. Auctions in places like Sioux Falls, Aberdeen, Watertown, and Rapid City moved tens of thousands of cattle each week, much of it destined for slaughter or feedlots in other states. Federal regulation required inspection certificates for interstate shipment, and state veterinary inspectors stationed at auctions were the on-the-ground enforcement layer.
The pre-1958 statutory framework had given the auction operator more say in inspector selection and removal, which made practical sense in an era when many auctions were small and the inspector might have been a local vet known to everyone. As the industry consolidated and interstate shipments grew, the conflict-of-interest problem became more visible. Chapter 203 of the 1958 Session Laws was the legislative response: concentrate inspector authority in the State Board, leaving the auction with only a recommendation role.
The federal approval requirement (USDA Animal Disease Eradication Branch) reflected the cooperative state-federal nature of livestock disease control. The federal government would not accept inspection certificates from inspectors it had not approved. The Board could not hire an inspector without that federal sign-off.
The 1968 AG opinion was a faithful reading of the 1958 framework. The AG did not need to creatively interpret anything; the statute was textually clear. The opinion's value was in stating the answer plainly so auction managers (and inspectors caught in disputes) had a clear written authority to point to.
Citations and references
Statutes:
- SDC 1960 Supp. 40.2007 (livestock auction veterinary inspection)
- SDC 1939 40.2007 (predecessor)
- Chapter 152 of the 1939 Session Laws
- Chapter 173 of the 1945 Session Laws
- Chapter 147 of the 1949 Session Laws
- Chapter 203 of the 1958 Session Laws (current framework)
Source
Original opinion text
Livestock Sanitary Board. Authority to fire inspectors at livestock auction agencies.
You have requested an opinion on the following question:
"Can an Auction Market Manager fire the Veterinary Inspector which is required to be present as provided for under SDC 40.2007?"
SDC 1960 Supp. 40.2007 provides in part as follows:
"Such examination and inspection shall be made by a veterinarian who has been recommended by the livestock auction agency to be examined and inspected and employed by the State Livestock Sanitary Board, and with the approval of the veterinarian in charge of the Animal Disease Eradication Branch of the Agricultural Research Service, United States Department of Agriculture, and at any livestock auction agency which is engaged in the interstate shipment of livestock...
"If the livestock auction fails to recommend such a veterinarian within a reasonable time as above provided, the Board may in ten days notice to such agency appoint such a veterinarian...
"...the services and duties of such inspector shall be under the direction and supervision of the State Livestock Sanitary Board, and said inspector shall be discontinued at the agency when he fails to perform such services and duties as are required of him by the State Livestock Sanitary Board."
SDC 1939 40.2007 and Ch. 152 of the 1939 Session Laws, Ch. 173 of the 1945 Session Laws and Ch. 147 of the 1949 Session Laws provide for replacement of such inspector whenever the livestock auction agency is instructed to do so by the State Livestock Sanitary Board. Ch. 203 of the Session Laws of 1958 amended this chapter to read as it now appears in the above quoted section of SDC 1960 Supp. 40.2007.
The above statutory provisions are the only authority as to what procedure the legislature intended. Since such veterinary inspectors must be hired by the State Livestock Sanitary Board and their employment discontinued only upon failure to perform such service and duties as are required by the State Livestock Sanitary Board and further that the only specific power given the individual livestock auction agency by statute in this area is that of recommending the hiring of a particular veterinary inspector to the State Livestock Sanitary Board, such power of recommendation would be the only recourse available to such livestock auction agency for the removal of such an inspector. Therefore, it is my opinion that a livestock auction agency cannot discharge a veterinary inspector hired by the State Livestock Sanitary Board.