text:
We would like to inform you about the management of your personal data in accordance with Art. 13 General Data Protection Regulation (GDPR).
The controller responsible for the described data collection and processing is named in the imprint.
We store the IP address transmitted by your web browser for a period of seven (7) days, strictly for the purpose of identifying, restricting and eliminating attacks on our website. After seven (7) days, we delete or anonymize your IP address. The legal basis for the processing of this personal data is provided for in Art. 6 para. 1 s. 1 lit. f GDPR.
* the IP address of the requesting computer shortened to such an extent that no re-identification of any persona data is possible.
The listed usage data is stored anonymously.
We do not transfer your personal data to third parties.
As a website user, the GDPR grants you certain rights when processing your personal data.
You have the right to obtain confirmation at to whether or not personal data concerning you is being processed, and, where that is the case access to the personal data and the information specified in Art. 15 GDPR.
You have the right to obtain without undue delay the rectification of inaccurate personal data concerning you and, if necessary, the right to have incomplete person-al data completed.
You also have the right to obtain an erasure of the personal data concerning you without undue delay, if one of the reasons listed in Art. 17 GDPR applies, e.g. if the data is no longer necessary for the intended purpose.
If one of the conditions set forth in Art. 18 GDPR applies, you shall have the right to restrict the processing of your data to mere storage, e.g. if you revoke consent, to the processing, for the duration of a possible examination.
In certain situations, listed in Art. 20 GDPR, you have the right to receive the personal data concerning you in a structured, common and machine-readable format or demand a transmission of the data to another third party.
If the data is processed pursuant to Art. 6 para. 1 s. 1 lit. f GDPR (data processing for the purposes of the legitimate interests), you have the right to object to the processing at any time for reasons arising out of your particular situation. We will then no longer process personal data, unless there are demonstrably compelling legitimate grounds for processing, which override the interests, rights and freedoms of the person concerned, or the processing serves the purpose of asserting, exercising or defending legal claims.
Pursuant to Art. 77 GDPR, you have the right to lodge a complaint with a supervisory authority if you consider the processing of the data concerning you infringes data protection regulations. The right to lodge a complaint may be invoked in particular in the Member State of your habitual residence, place of work or the place of the alleged infringement.

matches:
Art. 13
Art. 6
Art. 15
Art. 17
Art. 18
Art. 20
Art. 6
Art. 77


Students are encouraged to declare a minor at the College of Professional Studies.
Please review our minor eligibility requirements for complete information on selecting and declaring an undergraduate minor.
Students currently enrolled in a bachelor's program may declare a minor by completing the Request to Declare or Change Minor form.
Delve into the political landscape in the U.S., with a focus on the ideology behind politics.
POL 1300 American Government- 3 s.h.
POL 2315 State and Local Government- 3 s.h.
POL 2320 Political Parties and Interest Groups- 3 s.h.
POL 3310 American Foreign Policy- 3 s.h.
POL 3320 Civil LIberties- 3 s.h.
POL 3330 Politics and Mass Media- 3 s.h.
Research basic biology concepts and gain an appreciation for how biological factors influence populations, communities, and ecosystems.
BIO 1100/1101 Principles of Biology 1/Lab- 3/1 s.h.
BIO 1200/1201 Principles of Biology 2/Lab- 3/1 s.h.
BIO 2100/2101 Microbiology/Lab- 3/1 s.h.
BIO 2300 Cell Biology- 3 s.h.
Complete one BIO or BTC elective- 3 s.h.
Focus on curriculum that includes business law, accounting, finance, and management of the workforce in a constantly changing environment.
MGT 1100 Introduction to Business*- 3 s.h.
ACC 2100 Financial Accounting- 3 s.h.
FIN 2105 Introduction to Corporate Finance- 3 s.h.
MGT 2310 Organizational Behavior- 3 s.h.
Complete one ACC, FIN, MGT, or MKT elective- 3 s.h.
ENG 3210 Writing for Young Readers- 3 s.h.
ENG 3220 Writing Poetry- 3 s.h.
ENG 3230 Writing Fiction- 3 s.h.
ENG 3240 Writing Nonfiction- 3 s.h.
ENG 3250 Writing to Inform and Persuade- 3 s.h.
ENG 4210 Writing for Publication- 3 s.h.
ESC 1100 The Geosphere: Physical and Historical Geology- 3 s.h.
ESC 1150 The Atmosphere- 3 s.h.
ESC 1200 The Hydrosphere: Oceanography, Ground and Surface Water- 3 s.h.
ESC 1250 The Environment and Society- 3 s.h.
ART 2000 Typography: Communicating Content with Form- 3 s.h.
ART 2100 Foundation in Visual Communication- 3 s.h.
ART 2200 Fundamentals of Computer Graphics and Desktop Publishing- 3 s.h.
ART 3100 Visual Foundation: Color- 3 s.h.
ART 3110 Electronic Publishing Design- 3 s.h.
ART 4100 Graphic Communication 1- 3 s.h.
HMG 1100 Foundations of Healthcare Management- 3 s.h.
HMG 2100 Healthcare Operations- 3 s.h.
HST 1100 History of the World 1: Pre-History to the Renaissance- 3 s.h.
HST 1150 History of the World 2: From Renaissance to Present- 3 s.h.
HST 1200 American History 1: Pre-Contact to Civil War- 3 s.h.
HST 1250 American History 2: Reconstruction to Present- 3 s.h.
Examine how systems are designed and evaluated and have the opportunity to become familiar with applications development tools.
ITC 1200 Operating Systems Concepts- 3 s.h.
ITC 2000 System Analysis and Design- 3 s.h.
ITC 2200 Networking Foundations- 3 s.h.
ITC 2016 End User Data Analysis Tools- 3 s.h.
ITC 2300 Database Management Systems- 3 s.h.
ITC 2100 Introduction to Programming (Java)- 3 s.h.
ITC 2400 Web and Mobile Development- 3 s.h.
GET 2100 Foundations of Engineering Programming and Analysis- 3 s.h.
POL 1120 International Relations- 3 s.h.
POL 1200 Comparative Politics- 3 s.h.
POL 3126 Global Governance- 3 s.h.
POL 3135 International Conflict and Negotiation- 3 s.h.
POL 3140 International Security- 3 s.h.
POL 3210 Nationalism- 3 s.h.
POL 3220 Democracy in Comparative Politics- 3 s.h.
CMN 1100 Organizational Communication- 3 s.h.
CMN 2310 Professional Speaking- 3 s.h.
CMN 3320 Public Relations Basics and Practice- 3 s.h.
CMN 3330 Digital Communication and Organizations- 3 s.h.
CMN 3340 Gender and Communication- 3 s.h.
CMN 3350 Intercultural Communication- 3 s.h.
CMN 3360 Crisis Communication- 3 s.h.
CMN 3400 Advanced Organizational Communication- 3 s.h.
CMN 4220 Organizational Communication Measurement and Assessment- 3 s.h.
Examine the various aspects of psychology on an introductory level with an opportunity to focus on developmental progression during a specific time period.
PSY 1100 Foundations of Psychology- 3 s.h.
Complete four PSY electives- 12 s.h.
SOC 1100 Introduction to Sociology- 3 s.h.
Complete four SOC electives- 12 s.h.
Analyze the elements of technical writing and how to develop materials for various mediums, especially the online environment.
TCC 2200 Introduction to Technical Writing- 3 s.h.
TCC 3200 Digital and Social Communication Technologies- 3 s.h.
TCC 3210 Technical Editing- 3 s.h.
TCC 3220 Technical Promotional Writing- 3 s.h.
TCC 3230 Writing for the Biotechnology and Pharmaceutical Industries- 3 s.h.
TCC 3240 Proposal and Grant Writing- 3 s.h.
TCC 3450 Writing for the Web- 3 s.h.


text:
Disclaimer: Unless a specific prebiotic is described in the General Statements below, ‘prebiotics’ refer to prebiotics in general. The MJN Premo blend of prebiotics consists of a prebiotic blend of GOS and PDX (1:1 ratio) at a total level of 4 g/L (stages 1 and 2) or 1.2 g/serving (stage 3).
According to the FAO, a prebiotic is a nonviable food component that confers a health benefit on the host associated with modulation of the microbiota.
Prebiotics include non-digestible or partially digestible carbohydrates which can selectively stimulate the activity and growth of beneficial bacteria in the colon.
Breast milk contains a complex mixture of short and long chain prebiotics, called human milk oligosaccharides (HMO), that promote the growth beneficial bacteria throughout the large intestine,,.
Bifidobacteria are considered to support the immune system response in the infant gut,.
Bifidobacteria in the gastrointestinal tract contribute to the development of the infant’s natural defenses.
Beneficial bacteria act as a first line of defense to inhibit digestive tract pathogens and reduce infections,.
Prebiotics GOS and PDX promote proliferation of beneficial gut bacteria such as bifidobacteria,.
Prebiotics help support intestinal health as demonstrated by softer stools and reduction in infections and/or diarrhea,,,.
Prebiotics may help support immune system function and thus may support natural defenses.
Disclaimer: The General Statements below are phrased to ensure clarity when referring to yeast β–glucans or β–glucans in general. MJN uses yeast β–glucan as an ingredient.
Yeast β–glucans are carbohydrates composed of linked glucose molecules.
β -glucan polymers, including those of yeast β-glucans, are recognized by receptors on immune cells.
Binding of β–glucans, including yeast β-glucans, to these receptors initiates a cascade of events resulting in enhanced immune cell function and increased microbial clearance,,,.
The innate immune response, which can be stimulated by yeast β-glucans, acts as a first line of defense to protect the body against invading pathogens.
β –glucans, including yeast β-glucans and in combination with other nutrients, have been associated with reducing symptoms and/or prevalence of respiratory infection in children, and adults,,.
Yeast β –glucans have been associated with fewer missed days of school and/or work due to illness in both children, when fed in combination with other nutrients and adults.
Choline is an essential nutrient, with multiple functions. It is a precursor of the phospholipids phosphatidylcholine and sphingomyelin, which are major components of the membranes of all cells including neurons and glia; of the neurotransmitter and developmental growth factor acetylcholine; and of the methyl donor betaine.
Acetylcholine is synthesized in the brain neuron in a reaction catalyzed by choline acetyltransferase, which transfers the acetyl group from acetyl coenzyme A to choline.
Cholinergic neurons, which are the neurons dependent on acetylcholine to function, are located in the basal forebrain, hippocampus and frontal cortex of the brain. These areas are instrumental to long-term memory and cognitive processes.
Studies on rodents have shown that choline supplementation during development results in improved performance in cognitive or behavioral tests (particularly those with more difficult tasks), and in changes in a variety of electrophysiological, biochemical and morphological endpoints in the brain.
Iron is a transition metal, and an essential trace element for humans. It is best known as an essential structural component of the hemoglobin molecule, which transports oxygen to all the organs of the body including the brain.
Iron plays a role in many physiological processes. Among these are several pathways important to brain development and cognitive performance.
Iron is involved in several pathways important to brain development and cognitive function.
Iron is involved in neuronal myelination, plays a role in brain energy utilization, and acts as a cofactor with enzymes involved in the synthesis of neurotransmitters such as serotonin, norepinephrine and dopamine,.
Iron deficits are associated with poor cognitive performance.
Insufficient iron intake during development can delay central nervous system development and lead to lasting changes in behavioral and neurological development,,.
Zinc is a transition metal, and an essential trace element for humans. It is involved in many physiological processes essential to the growth and development of children.
Particularly, zinc is essential for the development and functioning of the central nervous system.
A vast number of proteins, including enzymes and transcription factors, require zinc for their functionality. These include proteins involved in brain tissue growth.
Zinc is also part of structural proteins, and involved in neurotransmitter production and function.
Zinc is essential for the development and functioning of the central nervous system.
Zinc plays a role in the production and migration of neurons and in the formation of synapses,,,.
Zinc deficiency during development may impede these neuronal structure and signal transmission functions.
Iodine is an essential nutrient due to its role as a component of thyroid hormones. Among the roles of thyroid hormones in human health are the regulation of numerous physiologic processes, including growth, key aspects of neurologic development, and reproductive function.
Iodine plays a pivotal role in brain development via the production of the thyroid hormones. These hormones are essential for central nervous system development including neurogenesis, neuronal migration, axon and dendrite growth, synaptogenesis and myelination.
 Pineiro, M., N. G. Asp, G. Reid, S. Macfarlane, L. Morelli, O. Brunser, and K. Tuohy. 2008. FAO Technical meeting on prebiotics. J Clin Gastroenterol 42 Suppl 3 Pt 2:S156-159.
 Roberfroid, M. 2007. Prebiotics: the concept revisited. J Nutr 137(3 Suppl 2):830S-837S.
 Harmsen, H. J., A. C. Wildeboer-Veloo, G. C. Raangs, A. A. Wagendorp, N. Klijn, J. G. Bindels, and G. W. Welling. 2000. Analysis of intestinal flora development in breast-fed and formula-fed infants by using molecular identification and detection methods. J Pediatr Gastroenterol Nutr 30(1):61-67.
 Bode, L. 2006. Recent advances on structure, metabolism, and function of human milk oligosaccharides. J Nutr 136(8):2127-2130.
 Penders, J., C. Thijs, C. Vink, F. F. Stelma, B. Snijders, I. Kummeling, P. A. van den Brandt, and E. E. Stobberingh. 2006. Factors influencing the composition of the intestinal microbiota in early infancy. Pediatrics 118(2):511-521.
 Boehm, G., J. Jelinek, B. Stahl, K. van Laere, J. Knol, S. Fanaro, G. Moro, and V. Vigi. 2004. Prebiotics in infant formulas. J Clin Gastroenterol 38(6 Suppl):S76-79.
 Sherman, P. M., M. Cabana, G. R. Gibson, B. V. Koletzko, J. Neu, G. Veereman-Wauters, E. E. Ziegler, and W. A. Walker. 2009. Potential roles and clinical utility of prebiotics in newborns, infants, and children: proceedings from a global prebiotic summit meeting, New York City, June 27-28, 2008. J Pediatr 155(5):S61-70.
 Knol, J., G. Boehm, M. Lidestri, F. Negretti, J. Jelinek, M. Agosti, B. Stahl, A. Marini, and F. Mosca. 2005. Increase of faecal bifidobacteria due to dietary oligosaccharides induces a reduction of clinically relevant pathogen germs in the faeces of formula-fed preterm infants. Acta Paediatr 94(449):31-33.
 Niers, L., M. Stasse-Wolthuis, F. M. Rombouts, and G. T. Rijkers. 2007. Nutritional support for the infant's immune system. Nutr Rev 65(8 Pt 1):347-360.
 Fanaro, S., B. Marten, R. Bagna, V. Vigi, C. Fabris, L. Pena-Quintana, F. Arguelles, K. E. Scholz-Ahrens, G. Sawatzki, R. Zelenka, J. Schrezenmeir, M. de Vrese, and E. Bertino. 2009. Galacto-oligosaccharides are bifidogenic and safe at weaning: a double-blind randomized multicenter study. J Pediatr Gastroenterol Nutr 48(1):82-88.
 Binns, C. W., A. H. Lee, H. Harding, M. Gracey, and D. V. Barclay. 2007. The CUPDAY Study: prebiotic-probiotic milk product in 1-3-year-old children attending childcare centres. Acta Paediatr 96(11):1646-1650.
 Bruzzese, E., M. Volpicelli, V. Squeglia, D. Bruzzese, F. Salvini, M. Bisceglia, P. Lionetti, M. Cinquetti, G. Iacono, S. Amarri, and A. Guarino. 2009. A formula containing galacto- and fructoGlobal Messaging Toolkit; Lighthouse. Confidential. For internal use only. Page 75 oligosaccharides prevents intestinal and extra-intestinal infections: an observational study. Clin Nutr 28(2):156-161.
 Ribeiro, T. C., H. Costa-Ribeiro, Jr., P. S. Almeida, M. V. Pontes, M. E. Leite, L. R. Filadelfo, J. C. Khoury, J. A. Bean, S. H. Mitmesser, J. A. Vanderhoof, and D. M. Scalabrin. 2012. Stool pattern changes in toddlers consuming a follow-on formula supplemented with polydextrose and galactooligosaccharides. J Pediatr Gastroenterol Nutr 54(2):288-290.
 Scalabrin, D. M., S. H. Mitmesser, G. W. Welling, C. L. Harris, J. D. Marunycz, D. C. Walker, N. A. Bos, S. Tölkkö, S. Salminen, and J. A. Vanderhoof. 2012. New prebiotic blend of polydextrose and galacto-oligosaccharides has a bifidogenic effect in young infants. J Pediatr Gastroenterol Nutr 54(3):343-352.
 Schley, P. D. and C. J. Field. 2002. The immune-enhancing effects of dietary fibres and prebiotics. Br J Nutr 87 Suppl 2:S221-230.
 Rice, P. J., J. L. Kelley, G. Kogan, H. E. Ensley, J. H. Kalbfleisch, I. W. Browder, and D. L. Williams. 2002. Human monocyte scavenger receptors are pattern recognition receptors for (1-->3)-beta-D-glucans. J Leukoc Biol 72(1):140-146.
 Liang, J., D. Melican, L. Cafro, G. Palace, L. Fisette, R. Armstrong, and M. L. Patchen. 1998. Enhanced clearance of a multiple antibiotic resistant Staphylococcus aureus in rats treated with PGG-glucan is associated with increased leukocyte counts and increased neutrophil oxidative burst activity. Int J Immunopharmacol 20(11):595-614.
 Brown, G., Gordon, S. 2003. Fungal beta-glucans and mammalian immunity. Immunity 19(3):311-315.
 LeBlanc, B. W., J. E. Albina, and J. S. Reichner. 2006. The effect of PGG-beta-glucan on neutrophil chemotaxis in vivo. J Leukoc Biol 79(4):667-675.
 Volman, J. J., J. D. Ramakers, and J. Plat. 2008. Dietary modulation of immune function by beta-glucans. Physiol Behav 94(2):276-284.
 Ganner, A. and G. Schatzmayr. 2012. Capability of yeast derivatives to adhere enteropathogenic bacteria and to modulate cells of the innate immune system. Appl Microbiol Biotechnol 95(2):289-297.
 Jesenak, M., J. Majtan, Z. Rennerova, J. Kyselovic, P. Banovcin, and M. Hrubisko. 2013. Immunomodulatory effect of pleuran (beta-glucan from Pleurotus ostreatus) in children with recurrent respiratory tract infections. Int Immunopharmacol 15(2):395-399.
 Li, F., X. Jin, B. Liu, W. Zhuang, and D. Scalabrin. 2014. Follow-up formula consumption in 3- to 4-year-olds and respiratory infections: an RCT. Pediatrics 133(6):e1533-1540.
 Talbott, S. and J. Talbott. 2009. Effect of BETA 1, 3/1, 6 GLUCAN on Upper Respiratory Tract Infection Symptoms and Mood State in Marathon Athletes. J Sports Sci Med 8(4):509-515.
 Talbott, S. M. and J. A. Talbott. 2012. Baker's yeast beta-glucan supplement reduces upper respiratory symptoms and improves mood state in stressed women. J Am Coll Nutr 31(4):295-300.
 Auinger, A., L. Riede, G. Bothe, R. Busch, and J. Gruenwald. 2013. Yeast (1,3)-(1,6)-betaglucan helps to maintain the body's defence against pathogens: a double-blind, randomized, placebo-controlled, multicentric study in healthy subjects. Eur J Nutr 52(8):1913-1918.
 Feldman, S., H. Schwartz, D. Kalman, A. Mayers, H. Kohrman, R. Clemens, and D. Krieger. 2009. Randomized Phase II Clinical Trials of Wellmune WGP for Immune Support During Cold and Flu Season. J Appl Res Clin Expt Ther 9(1&2):30-42.
 Zeisel, S. H. and J. K. Blusztajn. 1994. Choline and human nutrition. Annu Rev Nutr 14:269-296.
 Blusztajn, J. K. and R. J. Wurtman. 1983. Choline and cholinergic neurons. Science 221(4611):614-620.
 Meck, W. H. and C. L. Williams. 2003. Metabolic imprinting of choline by its availability during gestation: implications for memory and attentional processing across the lifespan. Neurosci Biobehav Rev 27(4):385-399.
 McCann, J. C., M. Hudes, and B. N. Ames. 2006. An overview of evidence for a causal relationship between dietary availability of choline during development and cognitive function in offspring. Neurosci Biobehav Rev 30(5):696-712.
 Prado, E. L. and K. G. Dewey. 2014. Nutrition and brain development in early life. Nutr Rev 72(4):267-284.
 Beard, J. 2007. Recent evidence from human and animal studies regarding iron status and infant development. J Nutr 137(2):524S-530S.
 Bryan, J., S. Osendarp, D. Hughes, E. Calvaresi, K. Baghurst, and J. W. van Klinken. 2004. Nutrients for cognitive development in school-aged children. Nutr Rev 62(8):295-306.
 Beard, J. L. and J. R. Connor. 2003. Iron status and neural functioning. Annu Rev Nutr 23:41-58.
 Salgueiro, M. J., M. B. Zubillaga, A. E. Lysionek, R. A. Caro, R. Weill, and J. R. Boccio. 2002. The role of zinc in the growth and development of children. Nutrition 18(6):510-519.
 Colvin, R. A., N. Davis, R. W. Nipper, and P. A. Carter. 2000. Zinc transport in the brain: routes of zinc influx and efflux in neurons. J Nutr 130(5S Suppl):1484S-1487S.
 Frederickson, C. J., S. W. Suh, D. Silva, and R. B. Thompson. 2000. Importance of zinc in the central nervous system: the zinc-containing neuron. J Nutr 130(5S Suppl):1471S-1483S.
 Bhatnagar, S. and S. Taneja. 2001. Zinc and cognitive development. Br J Nutr 85 Suppl 2:S139- 145.
 Levenson, C. W. and D. Morris. 2011. Zinc and neurogenesis: making new neurons from development to adulthood. Adv Nutr 2(2):96-100.

matches: V. V. V. V. V. V.


text:
Namekagon Portage Trail; Words and Phrases; The “Namekagon Portage Trail” is not impressed with a public trust under article IX, section 1 of the Wisconsin Constitution.
You ask whether Sawyer County may sell an eighty acre parcel of county-owned land which contains an ancient trail called the “Namekagon Portage Trail.” The trail historically was used by Indians, missionaries and traders as a link between the Chippewa and St. Croix River systems. The trail is about two and one-half miles long, and lies between Lake Windigo and the Namekagon River, just south of Hayward, Wisconsin.
You state that although the trail crosses the above-described property, most of the trail’s length crosses property now in private ownership. You state further that the State Highway Commission maintains an historic marker reciting the trail’s significance on State Highway 27, south of Hayward, but that the trail has received no other state or federal designation as an historic site. Finally, you state that the trail’s path, at least in places, still is visible and is used occasionally by the public.
The precise legal question you ask is whether article IX, section 1 of the Wisconsin Constitution applies to the sale of the described parcel, and, if so, whether the county must reserve to the public perpetual access to the “Namekagon Portage Trail.” It is my opinion, for the reasons which follow, that the constitutional section cited does not apply and that the county may sell the parcel without any restriction.
not prevent the county from selling said property on any terms the board approves.
Jurisdiction on rivers and lakes; navigable waters. SECTION 1. The state shall have concurrent jurisdiction on all rivers and lakes bordering on this state so far as such rivers or lakes shall form a common boundary to the state and any other state or territory now or hereafter to be formed, and bounded by the same; and the river Mississippi and the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the state as to the citizens of the United States, without any tax, impost or duty therefor.
Article IX, section 1 of the Wisconsin Constitution was required as a condition of statehood by the Northwest Ordinance of 1787, Art. IV, Act of Congress, July 13, 1787, U.S. Rev. Stats., 2d Ed. 1878, p. 13. The requirement was clearly restated in the Act enabling the territory of Wisconsin to form a constitution and be admitted to the Union. Enabling Act, Act of Congress, Aug. 6, 1846, sec. 3, 9 U.S. Stat. ch. LXXXIV, pp. 56-58.
At that time water transportation by river and lake was not merely an extremely important factor in interstate and foreign commerce but was essential to the maintenance of the great trade in furs and other products of the then nearly unsettled northwest territory. Well-established trade routes existed, and among the most important were those which linked the Mississippi with the Great Lakes and the St. Lawrence. If these routes were obstructed either physically or politically by the imposition of tolls and tariffs, the end of that profitable trade was inevitable. In order to accomplish the legislative purpose, it was necessary not merely to make provisions for the navigable waters themselves, but for such land as would by the processes of hauling render the routes continuous and practicable for commerce, for it is plain enough that the chain of commerce could be as disastrously broken at one point as at another.
Article IX, section 1 of the Wisconsin Constitution imposes a public trust on “navigable waters” and “carrying places” between them. The trust is administered by the state, primarily by the Department of Natural Resources. The state’s power is plenary thereunder. Flambeau River L. Co. v. Railroad Comm., 204 Wis. 524, 540, 236 N.W. 671 (1931).
The trust doctrine applicable to “navigable waters” was thoroughly discussed in Muench v. Public Service Comm., 261 Wis. 492, 53 N.W.2d 514 (1952). Stated in its most simple form, the doctrine provides that ownership of beds of navigable lakes lies in the state and ownership of beds of navigable rivers lies with each riparian owner to the river’s centerline, but said river is impressed with a trust for public use as long as the river exists as navigable.
A lake or river is navigable if it is able to float a sawlog, skiff or canoe for even short periods during the year. Muench, 261 Wis. at 500-01. Public use includes commercial and recreational use. Muench, 261 Wis. at 499-508. The trust applies up to the ordinary high water mark, a point which is established in each case by field procedures requiring objective examination of geologic and biologic indicators on shorelines to establish a numeric elevation. State v. McFarren, 62 Wis.2d 492, 498, 215 N.W.2d 459 (1974); Mayer v. Grueber, 29 Wis.2d 168, 173-74, 138 N.W.2d 197 (1965); Diana Shooting Club v. Hustings, 156 Wis. 261, 272, 145 N.W. 816 (1914).
The trust imposed by article IX, section 1 of the Wisconsin Constitution applies also to “carrying places” or portages, but certain distinctions must be maintained which lead to different conclusions than those cases concerned exclusively with “navigable waters.” Lundberg v. University of Notre Dame, 231 Wis. at 197-98, discusses the “carrying place” aspect of article IX, section 1 of the Wisconsin Constitution most thoroughly.
purposes if supplemented by portages, it is necessary to acquire by gift, purchase, or condemnation the land necessary to the portages. Once purchased or otherwise acquired, such land doubtless becomes a carrying place, and until abandoned either by the federal government or the state in the exercise of their powers to improve navigation, it is protected by the provisions of the Ordinance from obstruction or political interference. It is our conclusion, therefore, that assuming the Ordinance to have imposed some sort of servitude upon property then used for carrying places, it did not and could not do this with respect to land lying between waters which did not then constitute a part of some established commercial route. If carrying places are to come into existence in connection with such waters, they must be acquired by the process of purchase, condemnation, or other such means.
I can identify no ancient portage which still is used for commercial purposes in connection with navigable waterways. All such portages have been replaced by locks, dams, bridges, tressels, roads or other forms of transport such as truck, railroad or air services. Even the great commercial “carrying places” in Wisconsin history such as those between the Bois Brule and the St. Croix rivers at Solon Springs, and between the Fox and Wisconsin Rivers at Portage, have been abandoned. Under the law, then, such portages have lost the protection of the trust doctrine of article IX, section 1 of the Wisconsin Constitution Lundberg, 231 Wis. at 197-98.
of the Wisconsin Constitution. Its commercial use probably was abandoned well over 100 years ago, and most of its path now is privately owned.

matches: v. v. v. v. v. v.


A South Carolina statute provides that life insurance companies and their agents may not operate an undertaking business, and undertakers may not serve as agents for life insurance companies. Criminal sanctions are provided. Act No. 787, S.C. Acts of 1948, 45 Stat. at Large, p. 1947. 1 Respondents brought action before a three-judge District Court in the Eastern District of South Carolina, seeking an injunction forbidding the enforcement of the statute. 28 U.S.C. 380, now 28 U.S.C. 2281, 2284, 28 U.S.C.A. §§ 2281, 2284. The court, one judge dissenting, upheld respondents' contentions that the statute, as applied in this case, did not provide that due process of law and equal protection of the laws guaranteed by the Fourteenth Amendment to the Constitution of the United States. A permanent injunction issued, D.C., 79 F.Supp. 62, and the South Carolina Attorney General has appealed to this Court. 28 U.S.C. 380, now 28 U.S.C. 1253, 2281, 28 U.S.C.A. §§ 1253, 2281.
The respondent insurance company is incorporated and licensed to do business in South Carolina, and conforms with the comprehensive code of insurance regulations established by Act No. 232, S.C.Acts of 1947, 45 Stat. at Large, p. 322. The other respondents are its officers and directors. It issues life insurance with cash benefits ranging from $125 to $750. The amount of outstanding policies had reached a total of $838,375 in May of 1948, compared to nothing in February of the same year. Most of the company's agents are undertakers. Parties to the insurance contract contemplate use of the policy's proceeds to pay funeral expenses. A 'facility of payment' clause might justify payment of proceeds to an undertaker for the insured's funeral. at the time of the trial, respondent company was the only concern in South Carolina selling 'funeral insurance' as an established practice.
The South Carolina lagislature might well have concluded that funeral insurance, although paid in cash, carries the same evils that are present in policies payable in merchandise or services: the beneficiary's tendency to deliver the policy's proceeds to the agent-undertaker for whatever funeral the money will buy, whether or not an expensive ceremony is consistent with the needs of the survivors. 3 Considerations which might have been influential include the likelihood of overreach on the part of insurance companies, and the possibilities of monopoly control detailed in affidavits introduced in the court below.
The South Carolina legislature is not alone in seeing evils in this kind of insurance, and in invoking its police powers to combat them. See the similar provisions in N.Y. Insurance Law, Consol.Laws, c. 28, § 165(c); Fla.Code, § 639.02, F.S.A.; Ga.Code, 56-9920; Page's Ohio General Code, § 666(1946) (see Robbins v. Hennessey, 86 Ohio St. 181, 99 N.E. 319); Md.Code, Art. 48A, § 110 (1939). And see the summary of critical arguments in Business Week, October 20, 1945, pp. 48, 51.
Yet the court below held that the statute is 'arbitrary and discriminative and designed to destroy, and will destroy, the plaintiff insurance company and its business, * * * it seems obvious from the record that this legislation had its genesis in the desire of the existing insurance companies to eliminate the plaintiff company as a competitor. * * *' 79 F.Supp. at pages 70, 68. The court found that the respondent's policies are actuarially sound; that funeral insurance is desirable; and that the other South Carolina insurance regulations are 'ample' to correct any evils resulting from respondents' business. The Court concluded that the statute now before us is so unreasonable that it offends the Due Process Clause.
First. It is said that the 'insurance lobby' obtained this statute from the South Carolina legislature. But a judiciary must judge by results, not by the varied factors which may have determined legislators' votes. We cannot undertake a search for motive in testing constitutionality. See Hammer v. Dagenhart, 247 U.S. 251, 38 S.Ct. 529, 62 L.Ed. 1101, 3 A.L.R. 649, Ann.Cas.1918E, 724, overruled in United States v. Darby, 312 U.S. 100, 657, 61 S.Ct. 451, 85 L.Ed. 609, 132 A.L.R. 1430. Compare Bailey v. Drexel Furniture Co., 259 U.S. 20, 42 S.Ct. 449, 66 L.Ed. 817, 21 A.L.R. 1432, and United States v. Constantine, 296 U.S. 287, 56 S.Ct. 223, 80 L.Ed. 233, with Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 393, 60 S.Ct. 907, 912, 84 L.Ed. 1263. Compare United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914, with Steward Machine Co. v. Davis, 301 U.S. 548, 592, 57 S.Ct. 883, 893, 81 L.Ed. 1279, 109 A.L.R. 1293, and Cincinnati Soap Co. v. United States, 301 U.S. 308, 57 S.Ct. 764, 81 L.Ed. 1122.
This rationale did not find expression in Liggett Co. v. Baldridge, 278 U.S. 105, 49 S.Ct. 57, 73 L.Ed. 204, on which respondents rely. According to the majority in Liggett, 'A state cannot, 'under the guise of protecting the public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them." 278 U.S. at page 113, 49 S.Ct. at page 59, 73 L.Ed. 204. But a pronounced shift of emphasis since the Liggett case has deprived the words 'unreasonable' and 'arbitrary' of the content for which respondents contend. See Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 69 S.Ct. 251; where the cases are reviewed.
'Section 1: Life insurance companies and their employees not own or operate undertaking business.It shall be unlawful for any life insurance company, corporation, or association, except fraternal benefit societies licensed to do business in this State to own, manage, supervise, or operate or maintain a mortuary or undertaking establishment, or to permit its officers, agents or employees to own, operate of maintain any such funeral or undertaking business.
'Section 2: Life insurance company or sick or funeral benefit company not contract with undertaker conduct funeral of person insured by it.It shall be unlawful for any life insurance company, sick or funeral benefit company, or any company, corporation or association engaged in a similar business to contract or agree with any funeral director, undertaker or mortuary to the effect that such funeral director, undertaker, or mortuary shall conduct the funeral of any person insured by such company, corporation or association.
'Section 3: Undertaker and his employees not act as agent for life insurance company.It shall be unlawful for any funeral director, undertaker, or mortuary, or any agent, officer or employee thereof to be licensed as agent, solicitor or salesman for any life insurance company, corporation or association doing business in this State.
See Fla.Code, § 639.04, F.S.A.; Me.Rev.Stat. c. 56, § 138 (1944); Ky.Rev.Stat., § 303.120 (1946); Ill.Rev Stat., c. 73, § 956 (1947).
'You come to the place of business, the mortuary, to pay it. Month in and month out. The inducement for a funeral director to align himself with this is the fact that it will freeze this business to him. He doesn't have to, let me hasten to say. You don't have to call that funeral director, but if he continuously beats a path to his door to pay his insurance, there is no question about it that if he has any decent employees, they are going to convince the man the thing to do is to come to them. Now, is that a healthy situation?' Proceedings of the Senate Banking and Insurance Committee, State of South Carolina, March 31, 1948, No. 1382, In re 'The Mortuary Bill.' R. 85.
Our deference to the legislative judgment is particularly pronounced in a field as traditionally well regulated as insurance. See Osborn v. Ozlin, 310 U.S. 53, 65, 66, 60 S.Ct. 758, 762, 763, 84 L.Ed. 1074; La Tourette v. McMaster, 248 U.S. 465, 467, 468, 39 S.Ct. 160, 161, 63 L.Ed. 362; Prudential Insurance Co. v. Benjamin, 328 U.S. 408, 416, 66 S.Ct. 1142, 1147, 1148, Note 13, 90 L.Ed. 1342, 164 A.L.R. 476.
That respondent company is the only concern now affected by the statute does not, of course, mean a denial of equal protection. The statute is drawn in general terms; the company's success might well induce others to enter the business. See the dissenting opinion below, 79 F.Supp. at pages 73, 74. And see Mason v. Missouri, 179 U.S. 328, 21 S.Ct. 125, 45 L.Ed. 214.
COHEN et al. v. BENEFICIAL INDUSTRIAL LOAN CORPORATION. BENEFICIAL INDUSTRIAL LOAN CORPORATION v. SMITH et a .
The PUYALLUP TRIBE, etc., Petitioner, v. DEPARTMENT OF GAME OF WASHINGTON et al. Nugent KAUTZ et al., Petitioners, v. DEPARTMENT OF GAME OF WASHINGTON et al.


Nason & Goldfarb, Brian M. Sax and Beilock & Sax for Petitioner.
Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., Chief Assistant Attorney General, Doris H. Maier, Assistant Attorney General, James T. McNally and Eddie T. Keller, Deputy Attorneys General, for Real Party in Interest.
According to evidence before the Grand Jury of Nevada County, a letter from an anonymous informant tipped off the authorities to the possibility of commercial marijuana cultivation in an isolated area of the Sierra foothills, an activity hidden from view by the surrounding hills and woods. The county sheriff dispatched an airplane and a binocular-equipped deputy to the general area indicated by the informant. On its first "pass" the plane flew at an altitude of 700 feet. Among the trees the deputy saw a sizeable green patch near a dirt road. From a second pass, at an altitude of 400 to 500 feet, the deputy formed the belief that the patch was a field of growing marijuana. The plane dropped to an altitude of 300 feet and made a third pass. Using his binoculars, the officer was now able to discern the leaves' shape and their growth habit in clusters of five, typical of cannabis sativa. The cultivated area seemed to be about half the size of a football field. The surrounding trees had been topped to increase the plants' exposure to the beneficent rays of the sun. The marijuana plants had grown to heights of 15 to 20 feet.
A few days later sheriff's personnel in plain clothes conducted two foot expeditions in an attempt to locate the field by ground travel. They traversed a "well worn" footpath mentioned in the anonymous letter; they didn't know whether they were on public or private land; the area was not "posted" against trespassers and there were no fences; nearby was a homemade sign indicating the existence of a game refuge. The first expedition was fruitless. The next day, on their second expedition, the deputies reached a point where they could see the tops of plants which they believed to be the marijuana previously seen from the air. At that point petitioner came down the path. One officer "believed" that petitioner told them they were trespassing. They identified themselves as law officers and, in response to petitioner's question, acknowledged their lack of a search warrant. Nevertheless, the officers continued up the path, petitioner accompanying them [35 Cal. App. 3d 115] but manifesting no consent. They came to a tent and encountered two men, one of whom picked up a rifle. Petitioner shouted, "No, no, no," and the two men ran into the brush. After confirming the character of the agricultural produce, the officers arrested petitioner.
Petitioner held the land under an agreement of purchase. The marijuana occupied more than three-quarters' acre. The plants were arranged in neat rows along irrigation ditches, which could be watered from a nearby creek. The field contained approximately 400 plants with an estimated crop weight of 4,000 pounds and a commercial value exceeding $100,000. The evidence does not disclose whether the $100,000 figure is a wholesale or retail valuation. In the nearby tent the officers found weighing scales, a plastic bag containing 20 pounds of marijuana and a photographic copy of a printed study of marijuana inflorescence.
With this evidence before it, the grand jury indicted petitioner for possession of marijuana for the purpose of sale. (Health & Saf. Code, § 11359.) He seeks to quash the indictment on the ground that the evidence against him was acquired by search methods violative of the Fourth Amendment. Initially, he argues that aerial surveillance of his land was an invasion of constitutionally protected privacy.
The letter from an informant of unknown reliability did not supply probable cause for a search of private property; it furnished no more than a basis for further investigation. (Mann v. Superior Court, 3 Cal. 3d 1, 6-7 [88 Cal. Rptr. 380, 472 P.2d 468].)  Fourth Amendment principles permit officers to make observations of suspicious activities on private property from a place where they have a right to be, for example, from a part of the suspect's premises open to the public or from the property of a cooperating neighbor; the same principles are violated by warrantless entry into the suspect's property as to which he has exhibited a "reasonable expectation of privacy." Recent expression of these principles appears in People v. Dumas, 9 Cal. 3d 871, 881-883 [109 Cal. Rptr. 304, 512 P.2d 1208], and Lorenzana v. Superior Court, 9 Cal. 3d 626, 631-634 [108 Cal. Rptr. 585, 511 P.2d 33]. Here the officers' aerial surveillance intruded on the airspace above defendant's land.
The Attorney General contends that a property holder has no Fourth Amendment right of privacy in the air corridor above his land. The contention was impliedly rejected in People v. Sneed, 32 Cal. App. 3d 535 [108 Cal. Rptr. 146]. There the sheriff dispatched a helicopter to the defendant's 20-acre ranch; hovering 25 feet over the defendant's backyard, the helicopter [35 Cal. App. 3d 116] occupants observed two marijuana plants growing in a corral 125 feet from the dwelling house. The court viewed the flight as an unconstitutional entry into an area covered by reasonable expectations of privacy.
Expectations of privacy are not earthbound. The Fourth Amendment guards the privacy of human activity from aerial no less than terrestrial invasion. At a recent but relatively primitive time, an X-2 plane could spy on ground activities from a height of 50,000 feet. Today's sophisticated technology permits overflights by vehicles orbiting at an altitude of several hundred miles. Tomorrow's sophisticated technology will supply optic and photographic devices for minute observations from extended heights. Judicial implementations of the Fourth Amendment need constant accommodation to the ever-intensifying technology of surveillance. In analyzing claims of immunity from aerial surveillance by agents of government, the observer's altitude is a minor factor. Horizontal extensions of the occupant's terrestrial activity form a more realistic and reliable measure of privacy than the vertical dimension of altitude. At any rate, we expressly avow what the Sneed case implies: Reasonable expectations of privacy may ascend into the airspace and claim Fourth Amendment protection.
Had petitioner's crop been wheat or oats, the open fields rule would have supplied a sufficient answer, for agriculturists do not expect their wheat or oat fields' concealment from aerial view. Petitioner, on the other hand, claims that reasonable expectations of privacy blanketed his field of cannabis sativa. Was not the crop contraband? Did not its cultivation and possession expose the owner to prison? What more was needed to stimulate his strenuous insistence on privacy?
When the police have a plain view of contraband from a portion of the premises as to which the occupant has exhibited no reasonable expectation of privacy, there is no search in a constitutional sense; the evidence so displayed is admissible. (Lorenzana v. Superior Court, supra, 9 Cal.3d at p. 634; People v. Dumas, supra, 9 Cal.3d at p. 882, fn. 10.) One who establishes a three-quarter-acre tract of cultivation surrounded by forests exhibits no reasonable expectation of immunity from overflight. The contraband [35 Cal. App. 3d 118] character of his crop doubtless arouses an internal, uncommunicated need for secrecy; the need is not exhibited, entirely subjective, highly personalized, and not consistent with the common habits of mankind in the use of agricultural and woodland areas. fn. 1 Aside from an uncommunicated need to hide his clandestine activity, the occupant exhibits no reasonable expectation of privacy consistent with the common habits of persons engaged in agriculture. The aerial overflights which revealed petitioner's open marijuana field did not violate Fourth Amendment restrictions.
Pointing to the lack of a search warrant, petitioner charges illegality of the officers' foot expeditions to the marijuana field. The reach of the Fourth Amendment no longer turns upon a physical intrusion into any given enclosure; hence, that a trespass was later revealed is not controlling. (Katz v. United States, supra, 389 U.S. at p. 353 [19 L.Ed.2d at p. 583]; People v. Krivda, 5 Cal. 3d 357, 365 [96 Cal. Rptr. 62, 486 P.2d 1262].) After the aerial survey the officers still had inadequate means to establish the location with the particularity needed for a search warrant. (Pen. Code, § 1525; People v. Coulon, 273 Cal. App. 2d 148, 152 [78 Cal. Rptr. 95].) Further investigation was necessary to establish the marijuana field's location. In the course of this investigation the deputies made two trips afoot, traversing unfenced, unposted woodland and following dirt paths. The land may have been public or private. On their first expedition the officers met two men on a branch path who told them they were "probably" on private property and asked them to leave. About a quarter mile distant from the well-worn path, they encountered a homemade game refuge sign containing a telephone number. These were the only evidences of private ownership in the property. Neither of these evidences occurred on the path which ultimately led the officers to the marijuana field. On that path there were no badges of private ownership or of exclusion of travelers. The officers [35 Cal. App. 3d 119] followed that path to a point where the tops of marijuana plants were visible. Upon viewing contraband from a place where expectations of privacy had not yet been exhibited, the officers had probable cause and hence authority for a warrantless entry and seizure. (Lorenzana v. Superior Court, supra, 9 Cal.3d at pp. 631-634; People v. Bradley, supra, 1 Cal.3d at pp. 84-85; see also, North v. Superior Court, 8 Cal. 3d 301, 307-308 [104 Cal. Rptr. 833, 502 P.2d 1305].) Petitioner's appearance and assertions of privacy did not divest the officers of that authority.
The petition is denied and the order to show cause discharged.
Richardson, P. J., and Pierce, J., concurred.
FN 1. We are somewhat troubled by judicial implications that expectations of privacy may be subjective (rather than objective). Thus several opinions of the California Supreme Court speak of an unprotected area as one in which the occupant has not exhibited "a subjective expectation of privacy." (People v. Dumas, supra, 9 Cal.3d at p. 882, fn. 10; People v. Bradley, supra, 1 Cal.3d at p. 85.) That kind of characterization is not altogether consistent with the concept of a "single standard of reasonableness." (People v. Dumas, supra, 9 Cal.3d at p. 883.) The latter concept seems to negative idiosyncrasies of the occupant which diverge widely from normal expectations. With all deference, we suggest that demands for an exhibited expectation of privacy and for a single standard of reasonableness evoke elements which are more objective than subjective. The question, after all, involves the legality of police conduct; that conduct can be appraised only in the light of that which has been communicated. The police can recognize no more than two elements: (a) the common habits of people in the use of their property and (b) the needs or expectations exhibited (i.e., communicated) by the particular occupant. This much seems true -- that the need for an exhibited or communicated expectation of privacy forecloses uncommunicated demands peculiar to the occupant and not typical of common usage.


THE PEOPLE, Plaintiff and Respondent, v. PAMELA R. LEE, Defendant and Appellant.
Law Offices of Tracy Green and Tracy Green for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
Flier, J., with Cooper, P. J., and Rubin, J., concurring.
FLIER, J.—Appellant Pamela R. Lee is a retired deputy sheriff who fired her handgun to scare away two unleashed dogs that she encountered while walking her dog. She appeals her conviction for discharge of a firearm with gross negligence, contending that the trial court erred in refusing to instruct on self-defense. Respondent counters that the defense of self-defense does not apply to an attack by an animal, or that if it does apply, there was no substantial evidence to support it here. We hold that the defense of self-defense applies to an attack by an animal and that appellant’s testimony provided evidentiary support for the denied instructions. We therefore reverse.
Count 1 of the information charged appellant with gross negligence in the discharge of a firearm, which is a serious felony. Appellant was also charged with attempted cruelty to an animal (count 2), carrying a concealed firearm (count 3), carrying a loaded firearm (count 4), and vandalism (count 5). Counts 2 and 5 were dismissed on motion of the People before appellant’s first trial. The jurors at the first trial were instructed on two defenses, necessity and self-defense. They deadlocked on count 1 and found appellant not guilty as to counts 3 and 4.
The second trial on count 1 took place before a different judge and jury. The second jury was instructed on necessity but not on self-defense. It found appellant guilty. A motion for new trial was denied. The sentence was three years of formal probation. One of the probation conditions requires appellant to serve 180 days in jail or, in lieu of jail, to give 180 days of service to Cal-Trans, a tree farm, the Humane Society, or an animal shelter. This appeal followed.
The prosecution presented testimony from four eyewitnesses, James King, Gregory Landeros, Ingrid Carlson, and Demetrios Sourapas. Its other witnesses were the arresting officer, the man whose car was struck by the bullet from appellant’s gun, and a firearms expert.
On January 8, 2003, King owned and managed a car repair shop, which was in a strip mall on South Azusa Avenue in West Covina. On the repair shop’s north side was a Kentucky Fried Chicken restaurant. On its south side was a real estate office. To its west was a wooded area, which ended with a large concrete wall. On its east side was a parking lot, edged by a grassy embankment, which sloped up about 10 feet to the sidewalk of South Azusa Avenue.
Around 2:30 pm. on January 8, 2003, King was entering a parked car outside of the repair shop when he noticed appellant walking north on the sidewalk of South Azusa Avenue. Appellant had a 100-pound Rottweiler on a leash. She was yelling at two stray dogs that were running around near a parked car in the parking lot beneath her. King estimated that the dogs were 25 feet from appellant, and weighed 25 to 30 pounds each. “[E]very once in a while they would bark at her; [her] dog would bark, she would yell some more.” After the yelling and barking continued for several minutes, appellant pulled out a black semiautomatic weapon. She pointed the gun at the dogs for 10 or 15 seconds, yelled at them, and returned the gun to her purse. She turned, took a step north on the sidewalk, turned back towards the dogs, took the weapon out, and pointed it at them again. After repeating this activity three or four times over a two-minute period, she fired the gun once. The bullet entered the hood of a parked car near the dogs. Appellant ran up the sidewalk with her dog. The two stray dogs ran away.
Landeros was a customer at the car repair shop who came outside when he “heard the commotion.” He saw appellant and the Rottweiler walking north on the sidewalk, in the direction of two “medium-sized,” “knee high” stray dogs in the parking lot below. Appellant was screaming and cursing at the dogs, which ran in circles and played together near a parked car. There were 10 or 15 feet between appellant and the dogs. Landeros heard no barking and saw nothing to suggest that the dogs were about to attack appellant. Three or four times, within the space of a minute, appellant pulled a firearm in and out of a pouch she was wearing. “Then she pointed at the dogs kind of but more towards the gold car and just shot.” She walked off briskly with her dog, and the stray dogs ran away.
On cross-examination, Landeros testified that he was 50 to 100 feet from appellant when he made his observations. He could hear exactly what she yelled, which was, “Get the f— away from me.” He was not able to see whether the dogs bared their fangs at appellant, but he thought their mouths were shut.
Carlson was working inside of the real estate office next to the car repair shop. She looked outside when her own dog started to bark at the dogs outside. She saw appellant walking a “lumbering and lethargic” dog on a leash. Appellant was shouting at an unleashed dog, which was a “German shepherd mix.” Several times, appellant walked, stopped, walked back, pulled a handgun out, put it away, and resumed walking. Carlson was surprised to see the gun, as businesses were open and there were numerous cars moving through the parking lot. The dog stayed on the pavement, did not go onto the grassy area or approach appellant, and did nothing to suggest it was going to attack her. Finally, appellant shot the gun and ran up the sidewalk. The dog ran away, accompanied by a second unleashed dog, which Carlson observed at that time.
Sourapas was working at the auto shop that day. He saw that appellant was walking a “very big” dog. Shortly after that he saw appellant “being approached by a couple of dogs.” The dogs were “moving in her direction.” They were “not walking right toward, just in the general direction of the dogs with her dog. Dogs attract dogs.” They “looked like curious dogs,” and did nothing to suggest they were about to attack. They were small enough to be picked up with one arm, “a little bit bigger than a Chihuahua.” They were “about 20 feet” from appellant, towards the rear passenger side of a parked car in the parking lot. Appellant yelled at the dogs, to no effect. The dogs were barking, but they “pretty much kept their distance,” and did not get up on the grassy area. Appellant pulled a handgun in and out of a handbag a few times, and then fired it. The shot scared the dogs away.
On cross-examination, Sourapas testified that when he saw appellant, he was 30 to 40 feet away, just outside of one of the auto bays of the repair shop. He could see the dog’s faces but could not see their teeth. They were far from him, but “fairly close” to appellant. He could not hear what appellant was yelling.
Officer Joseph Serrano responded to a call about the gunshot. After speaking with Carlson, he located appellant and her dog, running on the sidewalk north of the area. Serrano stopped his patrol car and drew his gun. He ordered appellant to lie on the ground and not reach for her tote bag. Inside of the bag, he found a loaded semiautomatic handgun.
Juan Leon was at work inside of the real estate office. His car was parked outside. After the shot was fired, he discovered that a bullet had gone through the hood of his car. The bullet was never found.
Don Preston, a West Covina police officer and firearms expert, testified that there were substantial dangers from the firing of the gun while businesses were open and numerous vehicles and people were in the parking lot. He was concerned about where the bullet might go if it missed its target or was deflected by hitting metal or asphalt. Factors to be considered included the area where the gun was discharged, the backstop, whether the intended target was struck with the projectile, the threat that the dogs posed, and the distance to the surrounding buildings. In his opinion, if there was any distance between the weapon and the target, it was necessary to sight the weapon. He recognized, however, that appellant would have received handgun training when she was a sheriff’s deputy, and that the closer the attacker was, the less time there was to react.
Appellant testified that she was an active deputy with the Los Angeles County Sheriff’s Department between 1988 and 1994. After that she retired to pursue other career opportunities. Before she entered the Sheriff’s Academy, she had 40 hours of firearm training while studying for her degree in crime and criminal justice. At the Sheriff’s Academy, she had 84 hours of firearm training. As an active deputy, she routinely met qualifying requirements by shooting at the firing range. She also took an additional eight-hour course on the particular handgun she used here. After she left the sheriff’s department, she continued to practice with the handgun, as she enjoyed the sport of marksmanship. She thought she was still “a good shot? on January 8, 2003, the date of the incident.
Appellant further explained that she routinely walked her dog along the path she took that day. She had a loaded handgun with her for two reasons: (1) Certain people knew her from the days when she was an undercover officer who purchased narcotics throughout the county. After she retired, her previously sealed personal information became public knowledge. She had once been confronted at a shopping mall by a person whom she had arrested and prosecuted. On another occasion, a man stepped out of some shrubbery when she was taking a walk in her neighborhood. (2) Although her Rottweiler was large, he was old and had severe health problems, so he offered her no personal protection.
Appellant described three occasions in the past when she had problems with unleashed dogs.
In 2000, a neighbor’s mixed-breed Chow Chow dog ran up and bit her on the wrist, while she was walking the Rottweiler and a cocker spaniel that she had rescued from a shelter.
In 2001, when she was walking both of the dogs, a “Chow Chow mixed breed dog” broke through the screen of a neighbor’s house. It ran up and bit her and both of her dogs. Because she and her dogs became entangled in the leash, the dog was able to “take a nice sizable chunk” from her inner thigh, near her private area. The police came and subdued the dog with pepper spray.
Later in 2001, she was walking the Rottweiler near the Kentucky Fried Chicken restaurant next to the car repair shop. She saw two pit bulls on the sidewalk 100 feet away, in the path she needed to take home. Her gun was with her, but she did not take it out. When the pit bulls started to advance in her direction, she went into the restaurant and called 911. A police officer drove her and the Rottweiler home.
Appellant’s version of the present incident differed in important respects from that of the prosecution’s eyewitnesses.
According to appellant, the two dogs growled and barked at her. “One was a Rottweiler mix and the other was a German shepherd mix.” Their barking was “really rapid and really aggressive and their teeth were seething and their gums were bared and their ears were pointed and they were low and kind of crouched and they were barking and seething at me.”  She yelled and cursed at the dogs for three to five minutes. They did not leave. Her hand was extended and then was inside of her bag. She could see people at the rear of the building to the right. She yelled for them to help her, but nobody responded. She could not run into the street, due to traffic.
According to appellant, the dogs were “[s]ix to eight feet” away. She was very afraid. They were advancing and retreating and then advancing further as she walked in their direction. She had no time to use her cell phone. Holding her dog’s leash in one hand, she used the other to retrieve her gun and take off the safety. While trying to decide whether to shoot, she pulled the gun out several times, pointed it at the dogs, and put it away. From the angle and direction at which she was shooting, she decided it was “very, very unlikely” that she would shoot a person. The realty building was out of her line of fire, off to the left, over 70 feet away. The auto shop was 100 to 180 feet away. In the immediate line of fire, in the far background of the lot, there was a high cement wall.
Appellant believed she “was in immediate, imminent danger.” One of the dogs had advanced to a crouching position on the grassy slope between the sidewalk and the parking lot. She thought it was preparing to attack. An attack from that short distance could happen quickly. The dogs had separated, so she could not watch them simultaneously. She thought they were using “pack mentality,” circling to attack. To shoot into the air would be dangerous. She recalled an incident in San Francisco when a woman was mauled by a dog. She did not have time to sight her weapon. She fired once at the dog. Then she yelled, and the dogs ran away. She was trotting towards home with her dog when she was stopped at gunpoint by Officer Serrano.
On cross-examination, appellant testified that when she fired, the nearest people were about 180 feet away. She did not panic. She might have told the detectives who later interviewed her that she did not remember firing the gun. She did not tell them that the motorcycle officers looked like spacemen. What she said was that the motorcycle officers looked like storm troopers, as they were not wearing uniforms, and had helmets, which made their faces invisible. About eight men on motorcycles pointed guns at her. Serrano was the only officer who wore a uniform.
Appellant also presented testimony from an expert who measured distances at the crime scene. There was a five-foot vertical drop between the sidewalk and the curb area of the parking lot. It was 35 feet from appellant’s location to the northeast corner of the building where the real estate office was located. The door of that office was further than that. The distance from the curb to the corner of the auto repair shop was 181 feet. There was 150 feet from the front of the parking lot to the block wall at the far end of the lot.
Appellant also presented testimony from Paxton Quigley, a certified handgun instructor who was an expert on gun safety, handling and training. In her opinion, if danger was imminent, there might not be time to point and shoot. It was important to consider the type and caliber of weapon, the backdrop, the risk to an innocent bystander who was within immediate range, and the distance between the assailant and the shooter. Most law enforcement officers knew of the “Tueller’s Drill,” which involved evidence that if an attacker with a knife was 21 feet away, he could be at one’s side within 1.5 to 2 seconds. Quigley had visited the location with appellant. She thought it was important that the slope was downward, and that the bullet hit a car, which was adjacent to the dogs and was less than 10 feet away. Shooting down at the dogs was different from shooting towards the building.
On cross-examination, Quigley admitted that there was a possibility of injury when a gun was fired, and it might ricochet off the ground or be deflected by metal.
Officer Serrano testified that only two other officers were present when he arrested appellant. They arrived on “dirt bike motorcycle[s]” and pulled out their guns. They wore black polo shirts indicating that they were police officers. They had helmets, but did not look like spacemen.
We agree with appellant that the trial court committed reversible error when it refused to instruct on self-defense.
“Every person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a violation of Penal Code section 246.3, a crime.
“Every person who willfully [and unlawfully] discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a violation of Penal Code section 246.3, a crime.
“3. The discharge of the firearm was done in a manner which could result in injury or death to a person.
The prosecutor, Deputy District Attorney Bean, opposed any instruction on self-defense. He maintained that the cases on self-defense assumed that the assailant was a person, and if the attack was by an animal, the applicable defense was necessity.
Green responded that the CALJIC instructions on self-defense did not say that the attack had to be by a person. She also said she knew of cases in other states which involved attacks by bears.
The judge was concerned that, if it were necessary to instruct on self-defense, there were other self-defense instructions that needed to be given. He agreed with Green that the self-defense instructions in CALJIC did not say that the attacker had to be a person. In his opinion, “common sense and logic suggest that certainly an attack could come at the hand of another through the use of a trained dog, which is an attack dog, right?” He reserved ruling until the next day. Counsel were asked to provide case support for their positions.
The next day, February 18, 2004, Green filed a motion which requested a series of self-defense instructions: CALJIC No. 5.30 (Self-defense), CALJIC No. 5.43 (Force That May Be Used in Defense of Property), CALJIC No. 5.50 (Assailed Person Need Not Retreat),  CALJIC No. 5.51 (Self-defense, Actual Danger Not Necessary),  and CALJIC No. 5.52 (Self-defense—When Danger Ceases).  The motion stated that there were no cases which specifically addressed the issue, but instructing solely on necessity would improperly shift the burden of proof to the defendant.
Green’s argument for the defense focused on appellant’s version of the events. She argued that wild, unleashed dogs were dangerous. Appellant had extensive firearms training and a good reason to be carrying a gun. The prosecution’s witnesses were over 100 feet away. Appellant was the person who was closest to the dogs, which meant she was in the best position to determine the threat they posed. Green also argued that the defense had established necessity, based on the elements that were set forth in the instruction for that defense.
Appellant asks us to hold that self-defense applies to an attack by an animal, based on the “rule of lenity.” That rule of statutory construction means that language in a penal law, which is reasonably susceptible to two constructions, is ordinarily given the construction that is more favorable to the offender. (In re Christian S. (1994) 7 Cal.4th 768, 780 [30 Cal. Rptr. 2d 33, 872 P.2d 574]; People v. Hernandez (2003) 30 Cal.4th 835, 869 [134 Cal. Rptr. 2d 602, 69 P.3d 446].) The rule is inapplicable here, as we are not asked to interpret a statute.
Respondent maintains that the requested self-defense instructions were properly denied because an attack by an animal is not mentioned in the CALJIC instructions or the accompanying Use Notes. That argument is unpersuasive. The CALJIC Committee cannot be expected to anticipate every issue that may arise at trial. Indeed, the introduction to CALJIC specifically states that the trial court may need to give an instruction that is not included in CALJIC.
Respondent also maintains that there was no evidentiary basis for instructing on self-defense. That would be true if we looked only at the prosecution’s case. However, appellant gave extensive testimony on that issue.
Appellant testified that she fired the gun to prevent an imminent attack by an approaching aggressive dog. It is not for us to determine whether her version of the facts was more or less credible than that of the prosecution’s witnesses. Under the applicable rules, her testimony constituted substantial evidence, which required giving the requested instructions on the defense of self-defense, if that defense applies to an attack by an animal.
Conceptually, there is nothing in the elements of self-defense, as set forth in the rejected instructions (fns. 3–8, ante), that requires the threat to come from a human agency. For self-defense, the defendant must actually and reasonably believe in the need to defend, the belief must be objectively reasonable, and the fear must be of imminent danger to life or great bodily injury. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [56 Cal. Rptr. 2d 142, 921 P.2d 1].) The focus is on the nature of the threat, rather than its source. It serves no public policy, and is neither logical nor fair, to deprive appellant of the defense of self-defense because the threat of imminent harm came from a dog and not from a person. The use of force in defense of oneself should be legitimate, whether or not the source of the threat is a human being. In other words, the use of force in self-defense should not be illegitimate because the source of the threat is not a human being.
We therefore conclude that the trial court here committed error when it refused to instruct on self-defense.
Although there are no cases directly on point, there is further support for that conclusion in existing case law.
Appellant cites U.S. v. Clavette (9th Cir. 1998) 135 F.3d 1308, 1311. The defendant there was convicted of violating the Endangered Species Act by killing a grizzly bear. Clavette affirmed the conviction because, based on the evidence, a reasonable person could have found beyond a reasonable doubt that the defendant did not kill the bear in self-defense. Clavette does not control the problem here, as it involved a statute and federal regulation that specifically named self-defense as a defense to the crime. (16 U.S.C. § 1540(b)(3); 50 C.F.R. § 17.40(b)(1)(i)(B) (2005).) It does show, however, that the drafters of the regulations recognized that self-defense might be necessary to stop an attack by a dangerous animal.
Our own research efforts show, as one might predict, that self-defense cases generally involve attacks by humans on humans. (See generally, 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, §§ 64–77; 2 Wharton, Criminal Law (15th ed. 1994) Homicide, § 127, pp. 180–192; 2 LaFave, Substantive Criminal Law (2d ed. 2003) § 10.4, pp. 142–160.) There are, however, a surprising number of self-defense cases arising from attacks by dogs.
For example, People v. Wicker (1974) 78 Misc. 2d 811 [357 N.Y.S. 2d 597], held that the defendant could not be convicted of cruelty to animals, when he shot and killed a vicious dog which ran onto his property and attacked his dog, in the presence of small children.
With the exception of the case at bench, it appears that courts have uniformly recognized that a person has a right to use reasonable self-defense when confronted with an aggressive dog. The lack of precedent for the contrary ruling by the trial court here provides further support for the conclusion that it was erroneous.
Respondent maintains that, assuming the trial court erred in refusing to instruct on self-defense, it is not reasonably probable that the error was prejudicial. (People v. Breverman (1998) 19 Cal.4th 142, 176 [77 Cal. Rptr. 2d 870, 960 P.2d 1094]; People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) We do not agree.
Respondent argues that the lack of self-defense instructions caused no prejudice because the jurors necessarily rejected appellant’s version of the events, by finding her guilty after being instructed on the defense of necessity. However, as the trial court recognized, post, the two defenses have different burdens of proof. The defendant has the burden of proving the defense of necessity by a preponderance of the evidence. (People v. Waters (1985) 163 Cal. App. 3d 935, 937 [209 Cal. Rptr. 661]; 1 Witkin & Epstein, Cal. Criminal Law, supra, Defenses, § 57, p. 393.) For the defense of self-defense, as shown by the language on self-defense in CALJIC No. 9.03.3, the People have the burden to prove beyond a reasonable doubt that the defendant did not act in self-defense. The difference in the burdens of proof means the jurors might have found self-defense even if they did not find necessity.
Moreover, the defense of necessity more properly applies to situations when the person asserting the defense is faced with an extraordinary, or at least unusual, situation. The basic context of this defense is that, “[u]nder the force of extreme circumstances, conduct which would otherwise constitute a crime is justifiable and not criminal; the actor engages in the conduct out of necessity to prevent a greater harm from occurring.” (1 Wharton, Criminal Law, supra, Defenses, § 90, p. 614, fn. omitted.) This aspect of the defense of necessity is reflected in the first element of the defense under California law, which is that the act charged as criminal must have been done to prevent a significant evil. (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035 [48 Cal. Rptr. 2d 877].) The jury could reasonably conclude that two marauding dogs are not a “significant evil.” This would be consistent with the classic settings in which the defense of necessity has been discussed, such as to steal food to prevent starvation, or to sacrifice the life of another to avoid “drowning, starvation, or other catastrophe.” (1 Witkin & Epstein, Cal. Criminal Law, supra, Defenses, § 55, p. 391.) While two dogs may not pose a “significant evil” under the defense of necessity, they may very well impart a reasonable belief that the person who is attacked by the dogs needs to defend himself or herself.
We therefore conclude that the fact the jury rejected the defense of necessity does not necessarily mean that it would have rejected the defense of self-defense.
Moreover, there were weaknesses in the prosecution’s case that show that the evidence was closely balanced.
Although all of the prosecution’s eyewitnesses testified that the stray dogs were not aggressive, they did not agree about the distance between appellant and the dogs. Their estimates ranged between 25 feet (King), 10 or 15 feet (Landeros), 10 to 20 feet (Carlson at the trial), 6 to 8 feet (Carlson at the preliminary hearing), and 20 feet (Sourapas).
Also, the observations of King, Landeros and Carlson began when they heard appellant shouting. Only Sourapas saw appellant walking her dog before the shouting began. According to him, the stray dogs initially moved in appellant’s direction, even though he testified they were acting from curiosity, and not anger.
As appellant’s counsel argued, appellant was much closer to the dogs than any of the other witnesses. She testified that the dogs were “six to eight feet” away when she fired the shot. She also said that the dogs were angry and aggressive, and one had advanced to a crouching position on the grass, as if about to attack. Her testimony was supported by the defense firearms expert.
It is particularly significant that at the first trial, when the jury was instructed on self-defense, the jurors were unable to reach a verdict on count 1. At the second trial, no instruction on self-defense was given, and the jurors returned a guilty verdict on count 1. That difference between the two trials makes it likely that the instructional error was prejudicial here.
We do not know whether a properly instructed jury would find appellant guilty. We know that the jury below found her guilty without being instructed on her defense. The circumstances mandate reversal for a new trial.
Cooper, P. J., and Rubin, J., concurred.
1. “Seething” meant that strands of saliva were dripping inside the dogs’ mouths.
All further code references are to the Penal Code unless otherwise stated.
3. While the judge at the first trial gave the jury the language on self-defense in CALJIC No. 9.03.3, he refused to give several specific self-defense instructions that the defense requested, CALJIC Nos. 5.30, 5.50, 5.51, and 5.52.
The defense modifications substituted “attack” and “attacked” for “assault” and “assaulted” in the first sentence, and “her” for “him” elsewhere in the CALJIC instruction.
9. Parts of the discussion resemble hypothetical discussions at law school. Green argued that self-defense applied to an attack by any “actual living being, whether it be [a] mountain lion, a bear, a dog, a shark, whatever it would be.” The judge responded by asking if the risk of an imminent attack by a dog would entitle a person to detonate an atomic bomb.


and adjacent waters, and who for that purpose devote their towboat to public use, are common carriers, not because of any legislative fiat, but by reason of the character of their business, and are subject to legislative regulation of their rates for such towage. P. 275 U. S. 211.
2. The rule that towboats not having exclusive control of vessels towed are not to be held to the strict liability of common carriers does not affect this question, and a notice in the carrier's tariff that all tows are at the owner's risk is immaterial, since a common carrier is such by virtue of his occupation, not by virtue of the responsibilities under which he rests. P. 275 U. S. 211.
3. A state regulation fixing reasonable rates for towage of logs by common carriers does not deprive shippers of property in violation of the Fourteenth Amendment by preventing them from securing lower rates through private contract with such carriers. P. 275 U. S. 212.
Error to a judgment of the Supreme Court of Washington sustaining an order of the Department of Public Works of the State of Washington declaring a specified rate on the towage of logs to be just and fair, and directing a towage company to collect it for towage done for the relator lumber company.
October 17, 1924, the Department of Public Works, after hearing upon a complaint of relator, made an order which declared that a specified tariff rate for towing logs from Clifton to Lake Union in Seattle was "just, fair, and no more than sufficient," and directed the Shively Towboat Company to collect from relator charges based on that rate for towing done between March 1, and May 1, 1924. The superior court affirmed the order.
Relator appealed to the supreme court, and there challenged the validity of the order and statutory provisions under which it was made on the ground that they are repugnant to the due process clause of the Fourteenth Amendment. The court held them valid and affirmed the judgment. 137 Wash. 602.
things not here material, that the business of towing logs was not affected with a public interest or within the jurisdiction of the department. Then followed the hearing, order, and judgments above referred to.
The statutes of Washington declare that towboats operated "for the public use in the conveyance of persons or property for hire over and upon the waters within this state" are common carriers. They require that charges made by common carriers "shall be just, fair, reasonable, and sufficient;" that the carriers file with the Department of Public Works schedules showing the rates to be charged; that the names of carriers who are parties to joint tariffs shall be specified therein, and that each party, other than the one filing the tariff, shall file such evidence of concurrence as may be required. And the statutes make it unlawful for any such carrier to collect different compensation than that provided for in the schedules, and prohibit it from charging any person a greater or less compensation than that collected from others for like contemporaneous service. Other provisions authorize the department to prescribe and enforce the rates to be charged by all common carriers including towboats. Remington's Complied Statutes, § 10344 et seq.
private carrier cannot be converted into a common carrier by mere legislative command. Frost Trucking Co. v. Railroad Commission, 271 U. S. 583, 271 U. S. 592; Michigan Commission v. Duke, 266 U. S. 570, 266 U. S. 577.
virtue of the responsibilities under which he rests." Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 129 U. S. 440. The Shively Company stands the same as the other parties to the tariff. It was engaged in the general towboat business; it towed logs for others, as well as for relator; it held itself out as a common carrier in that line of business, and, by the tariff, gave public notice to that effect. Its towboat was devoted to the public use, among other things, for the transportation of logs. By its own choice, it became a common carrier. Terminal Taxicab Co. v. District of Columbia, 241 U. S. 252. The state had power to regulate its charges. Munn v. Illinois, 94 U. S. 113. The purpose of the regulations complained of is to establish reasonable rates to be charged, and to prevent unjust discrimination, by public carriers. Such regulations would be of little value if the state law permitted the shippers by private contract with public carriers to obtain the towing of their logs for less than the prescribed rates. Relator was free to have its logs towed by a private carrier for such compensation as might be agreed, and without regard to the rates established by the department. The order was not aimed at any such transaction. It being conceded here that the charges in question are not excessive, the relator's contention that the state rate regulation deprives it of its property in violation of the Fourteenth Amendment has no foundation.
* The Steamer Webb, 14 Wall. 406, 81 U. S. 414; The Margaret, 94 U. S. 494, 94 U. S. 496; Transportation Line v. Hope, 95 U. S. 297, 95 U. S. 300.


The following sales conditions apply to the contracts concluded between König GmbH Kunststoffprodukte (“König GmbH”) and their Customers governing the sales and delivery of goods and other services. These GTC apply only in regard to commercial consumers as defined by § 14 German Civil Code (BGB).
These general terms and conditions of business shall also apply to all future business relationships between König GmbH and the Customer. The respectively valid version at the time of conclusion of the contract shall be decisive.
These general terms and conditions of business shall apply exclusively. We do not recognise terms and conditions of the contracting partner which deviate from or conflict with these terms and conditions of sale and delivery. Our terms and conditions of business shall also apply if we perform delivery without reservation in the knowledge of conflicting or deviating terms and conditions of the contracting partner.
Offers shall always be subject to confirmation. The conclusion of contracts shall require written form. The respective prices of König GmbH at the time of conclusion of the contract shall apply.
In case of contracts with a term of more than 4 months, König GmbH shall reserve the right to adjust the price as a result of cost increases in the manufacturing process which occur following conclusion of the agreement and to the amount of the said cost increases. Cost increases for which König GmbH is responsible or which result from circumstances which König GmbH has caused itself shall be excluded from the above provision. Cost reductions which occur following conclusion of the contract and during the manufacturing process shall be passed on fully to the Customer by König GmbH in case of contracts with a term of more than 4 months.
If the offer in question does not show legal VAT, it is a net price to which the legal VAT must be added.
Quotations shall always be non-binding.
The offer calculations are based on the values or the inquiry or the information of the Customer.
The conclusion of the contract shall take place subject to the provision that we shall not carry out deliveries either in part or in full, in the event that supplies fail to match specifications or rules through no fault of our own. This applies only if the non-delivery is not the fault of König GmbH and they have exercised due diligence by concluding a specific cover transaction with the supplier by . König GmbH will make every possible effort to procure the goods. Otherwise, the consideration will be reimbursed immediately. If the goods are not available in part or at all, the Customer will be informed immediately.
The prices of König GmbH do not include transport costs, unless an agreement to the contrary has been concluded with the Customer.Transport insurance is concluded only upon the instructions and at the cost of the Customer.
The risk of accidental destruction and damage of the goods is transferred to the Customer as soon as they or their delegates are handed the goods, or, in the event of sales shipment, when goods are delivered to the carrier, the freight forwarder or another person appointed to ship.
If the goods cannot be sent or accepted on the envisaged deadline after they have been provided or made available due to circumstances for which the Customer is responsible, the risk is transferred to the Customer at the point in time at which the Customer received the notification of readiness for shipping. In such a case, König GmbH shall be obliged to effect the insurance requested by the Customer at the expense of the latter. Storage costs shall be borne by the Customer.
Should König GmbH agree to retake possession of the goods delivered by it as a gesture of goodwill, the goods must be in a flawless condition. For processing, the Customer will be invoiced for costs in the amount of 10% of the invoice value. In any case, the Customer shall bear the risk for loss of or damage to the goods until the goods reach the seller. Freight costs shall be borne by the Customer. § 3 Item 5 does not apply if the goods delivered by König GmbH are defective.
The dates and deadlines named by König GmbH shall not be binding unless expressly agreed otherwise.
Regarding the reservation of proper self-delivery, reference is made to § 2 (6) of these GTC.
In case of force majeure, König GmbH shall be entitled to postpone the delivery for the duration of the hindrance and a subsequent start up period. Force majeure includes strikes, operational interruptions of König GmbH or their upstream supplier, and unforeseeable events, provided König GmbH is not responsible for them.
In case of individually manufactured goods with surplus or short deliveries, König GmbH shall have an entitlement of up to 10% of the agreed delivery quantity.
König GmbH is entitled to make partial deliveries and partial performances if these are acceptable to the Customer under consideration of their interests. This has no bearing on the contract contents, especially on the performance owed by König GmbH or any agreed period of performance. The Customer will not incur any additional costs because of partial delivery.
Payments shall be due immediately, without any discount.
König GmbH shall expressly reserve the right to reject bills of exchange. The acceptance shall only take place on account of performance. Discount and exchange fees are to be borne by the Customer and are due immediately. Bills of exchange will be accepted with no assumption of liability for proper presentation and protest.
If the Customer does not comply with their payment obligations within 14 days after they become due, they enter into arrears even if they do not receive an additional request to provide performance. A payment shall not be deemed to have been made until the amount is at the disposal of König GmbH. In case of exceeding the payment deadline, König GmbH shall, regardless of other rights, be entitled to charge default interest in accordance with § 288 BGB in the respectively valid version. In case of the provision of proof, higher damages can also be asserted.
The Customer has the right to offset only if their counterclaims have been upheld or recognised by a court of law, or are not disputed by König GmbH. The Customer’s right to offset with contractual and other claims arising from the initiation or implementation of this contractual relationship remains unaffacted thereby. The Customer can only exercise their right of retention if their counterclaim is based on the same contractual relationship.
Payments from the Customer will be cleared in the order of §§ 366 (2), 367 German Civil Code (BGB).
Should König GmbH become aware following conclusion of the contract that its payment entitlement is endangered due to inability to pay on the part of the Customer, it shall be entitled to the rights set out in § 321 BGB if it is obliged to provide pre-performance (defence of uncertainty). The defence of uncertainty extends to all further outstanding deliveries and performances arising from the business relationship with the Customer if König GmbH is obliged to provide pre-performance. Claims under the ongoing business relationship can be made due by König GmbH.
The Customer is entitled to a statutory warranty right which is modified in accordance with §§ 6 and 7 of these GTC.
In respect of defects to the delivered contractual objects, König GmbH shall provide either subsequent performance through improvement or replacement delivery, depending on its choice.
If subsequent performance fails, the Customer is entitled to withdraw from the contract or reduce the purchase price, without prejudice to any existing claim for damage compensation. As a rule, at least two attempts to rectify faults are deemed acceptable for the Customer. In consideration of mutual interests, the Customer is not entitled to withdraw for insignificant defects. Instead of compensation in place of performance, the Customer can demand the replacement of futile expenditures, within the bounds of § 284 BGB, which he has made (and was able to make reasonably) in reliance upon the receipt of the goods. If the Customer chooses damage compensation instead of performance, the limitations of liability in accordance with § 7 of these GTC shall apply.
The warranty period amounts to one year from the delivery or handover of the merchandise. This does not apply if König GmbH can be accused of gross negligence, or in the event of harm to body or health or loss of the Customer’s life if these are attributable to König GmbH, or in the event of a guarantee or in the event of delivery recourse in accordance with §§ 478 and 479 BGB. The liability of König GmbH under the German Product Liability Act (Produkthaftungsgesetz) shall not be affected thereby. The regular statute of limitations shall also apply if König GmbH has fraudulently concealed a defect.
If the Customer is a merchant as defined by the German Commercial Code (HGB), § 377 HGB shall apply. Otherwise obvious defects must be asserted in writing and at the latest within a deadline of two weeks following receipt of the goods; hidden defects must be asserted in writing within two weeks of their discovery. The timely sending or notification shall suffice for compliance with the deadline.
For the purpose of supplementary performance, improvement or delivery, the Customer must return the delivered goods to König GmbH. Should the delivered goods be defective, König GmbH shall pay the expenses which are necessary for subsequent performance, in particular transportation, travel, labour and material costs. If the expenses are increased because the object is moved to a location other than the Customer’s residence or branch, these increased claims by the Customer to expenses are excluded unless bringing them to another location was appropriate to the proper use of the goods.
If a claim is made against the Customer by their own customers due to defective goods after they have been resold, the Customer has statutory rights of recourse against König GmbH only if the Customer’s customers have asserted the same.
The defect guarantee shall not extend to natural wear and tear and defects which are due to defective or negligent handling, excessive operational demands or similar influences which are not presupposed under the contract. The same shall apply if operational or maintenance rules are not complied with or improper alterations were carried out to the deliveries.
As a rule, only the product description of König GmbH shall be deemed to have been agreed as the quality of the goods. Public statements, promotion or advertising of the manufacturer shall not represent any additional contractual declaration of the quality of the product. Manufacturers' guarantees shall not be affected thereby. The product description does not release the Customer from the obligation to check the products for suitability for the intended purpose.
König GmbH provides no guarantees to the Customer in a legal sense, unless it was expressly agreed otherwise. Manufacturers' guarantees shall not be affected thereby.
In case of simple breaches of obligations, the liability shall be limited to the average direct loss which is typical of the contract and foreseeable in accordance with the nature of the goods. This shall also apply in case of simply negligent breaches of obligations of the legal representatives or agents in performance/vicarious agents of König GmbH. König GmbH shall not incur liability due to a simply negligent breach of minor contractual obligations. On the other hand, they are liable for the violation of legal positions of the Customer which are essential to the contract. Legal positions which are essential to the contract are those which the contract must guarantee the Customer according to its contents and purpose. König GmbH shall also be liable for violations of duties whose fulfilment enables the proper implementation of the contract in the first place and on whose compliance the Customer may rely.
The aforementioned limitations of liability do not affect the Customer’s claims arising from guarantees and/or product liability. Furthermore, the limitations of liability do not apply in cases of malice, violation of duties which are essential to the contract, as well as in cases of harm to body or health or the loss of the Customer’s life if these are attributable to König GmbH.
König GmbH shall retain ownership of the goods until full payment of all of its claims under the ongoing business relationship.
In the event of behaviour from the Customer which is contrary to the terms of the contract, especially default in payment, false information they have provided about their creditworthiness, or if an application to initiate insolvency proceedings has been filed, König GmbH – after setting a deadline if necessary – is entitled to withdraw from the contract and demand the goods back, if the Customer has not provided consideration or not provided it completely.
The Customer is entitled to resell the goods to a third party as part of routine business operations. However, the Customer shall assign all claims with all ancillary rights which are accrued to it against the consumer or third parties as a result of the subsequent selling on. König GmbH shall be obliged not to collect the claims as long as the Customer properly complies with its payment obligations. In case of payment default, König GmbH shall be entitled to demand that the Customer notifies it of the assigned claims and their debtors, provides all necessary information for the collection and hands over the associated documents. In such a case, König GmbH shall be obliged to inform the debtor of the assignment.
If the goods subject to retention of title are installed into the property of a third party as an essential component thereof by the Customer or on their behalf, the Customer thereby assigns the claims against the third party or whomever it concerns to payment in the amount of the invoiced value of the transaction between König GmbH and their Customer. The said assignment shall include all ancillary rights, including the granting of a debt-securing mortgage to the Customer.
Should the reservation of ownership lapse due to connection or processing, König GmbH shall acquire joint ownership in accordance with the relationship of the invoice value of the transaction between König GmbH and the Customer to the value of the finished goods. If the new item is sold again, the Customer assigns to König GmbH all claims against the buyer which arise for them from the resale, up to the amount of the value of the performance. Otherwise, Number 3 shall apply.
König GmbH hereby accepts the above-mentioned assignments.
At the request of the customer, we undertake to release the securities to which we are entitled insofar as the realisable [...] value of our securities exceeds the claims to be secured by more than 10%; we shall be responsible for selecting which securities to release.
If the Customer is a merchant, legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from this contract is Munich, unless an exclusive place of jurisdiction is specified. However, König GmbH is also entitled to bring legal action against the merchant at the court having jurisdiction at the merchant’s residence or place of business. Competence due to an exclusive place of jurisdiction remains unaffected thereby.
The relationships between the contracting parties shall be regulated exclusively by the law which applies in the Federal Republic of Germany. The United Nations Convention on the International Sale of Goods shall not apply.