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( Cal. —, 234 Pac. 398.) Fisheries, $ 9 effect of use of prod- ance, and will not support a finding

uct of reduction plant for poultry that such use did not or could not food.

cause any loss or damage to the state 10. A plant used for the reduction which will entitle it to an injunction. of food fish is not taken out of the op- Appeal, $ 714 — question of remedy at eration of a statute forbidding use of law. food fish in reduction plants by the 17. Whether or not a plain, speedy, fact that the product is to be used for

and adequate remedy at law exists to poultry food instead of fertilizer.

prevent the maintenance of a nuis. Fisheries, & 9 - meaning of provision ance, is in the first instance a quesagainst waste.

tion for the trial court, and if the evi11. A statutory prohibition against dence is conflicting, or if opposing inpermitting waste of food fish caught ferences may reasonably be drawn or brought into the state applies to

therefrom, it still remains a question the use of fresh food fish for any pur

of fact for the trial court. pose other than human consumption. Fisheries, § 16 - injunction sufFisheries, § 2 title to.

ficiency of action at law. 12. The title to, and property in, the 18. The injury to the state from fish within the waters of the state are

the exhaustion of the supply of sarvested in the state and held by it in

dines from its waters would be so diffitrust for the people of the state. cult, if not impossible, to ascertain, [See 11 R. C. L. 1015, 2 R. C. L.

as to render an action at law inadeSupp. 1350, 4 R. C. L. Supp. 728, 5 R. quate as a remedy to prevent the issuC. L. Supp. 625.]

ance of an injunction against such

act. Fisheries, 89 - right of legislature to control.

Fisheries, $ 16 — injunction - effect

§ 13. The legislature may dispose of

of relegating state to action at law. or protect the fish of the state as it

19. To deny the state relief by inmay seem best, subject only to consti- junction against the exhaustion of tutional provisions against discrim

the supply of food fish in its waters ination.

and relegate it to its action at law [See 11 R. C. L. 1041, 1045, 2 R. C. L.

for damages would defeat pro tanto Supp. 1352, 4 R. C. L. Supp. 728.]

the legislative policy, as disclosed by

statutory enactment, of conserving Fisheries, 2 - how become private the fish of the state for human conproperty.

sumption. 14. Fish within the waters of the

Fisheries, 16 injunction — crimstate can become the subject of private ownership only in such qualified

inal prosecution as adequate rem

edy. way, and to such limited extent, and

20. The granting of an injunction subject to such conditions and limita

against the invasion of the property tions, as the state through its legis

rights of a state in the food fish in its lature may see fit to provide and im

waters is not prevented by the possipose.

bility of prosecuting defendant crimFisheries, $ 2 - title to fish caught. inally for violation of the prohibitory

15. Under a statute reserving the statute. title to fish taken from waters of the

Fisheries, 8 16 — injunction - partial

, state, in the state, for the purpose of

legal use effect. regulating and controlling the disposition of them, one taking fish unlaw

21. That large quantities of fish

used in a reduction plant were unfit fully acquires no title to them and

for human consumption does not precan convey no title to fish taken law

vent injunction against the continued fully upon a reduction plant which is

unlawful taking of fish for such use, forbidden by statute to receive them.

where admissions and uncontradicted Nuisance, 8 9 — wrongful use of food evidence show that large quantities of fish.

fish fit for such consumption are re16. The unlawful use of food fish in ceived and used in the plant, contrary a reduction plant constitutes a nuis- to the provisions of the statute.

APPEAL by plaintiff from a judgment of the Superior Court for Monterey County (Treat, J.) in favor of defendant in an action brought to enjoin the alleged illegal use by it of food fish in its reduction plant. Reversed.

The facts are stated in the opinion of the court.

Messrs. U. S. Webb, Attorney Gen- issues thus framed were narrowed eral, Robert W. Harrison, and B. D. somewhat by the express admissions Marx Greene for appellant.

of counsel for defendant at the comMessrs. R. D. Duke and C. F. Lacey for respondent.

mencement of the trial as follows:

"The only issues that are raised by Myers, Ch. J., delivered the opin- this answer concern the averment in ion of the court:

the complaint that the defendant is This is an appeal by plaintiff from engaged in operating a reduction a judgment in favor of defendant plant. We admit that we are manuin an action to procure an injunc- facturing fish meal and fish oil, but tion restraining the defendant from deny that we are operating or mancausing or permitting preventable ufacturing fertilizer. We admit we waste of fish fit for human consump- have received fish [fit for human tion by using the same in a reduc- consumption] from persons who tion plant for the conversion thereof have no permit from the fish coninto fish meal and fish oil. It is al- mission, and we intend to continue leged in the complaint that the de- to do so. We deny we are causing fendant is engaged in the business preventable deterioration or waste of operating a reduction plant for of fish, and we deny that our use of the manufacture of fish meal and fish is depleting the supply of sarfish oil and fertilizer, and that dur dines, and we also deny that there ing the present seasonal run of sar- is no adequate remedy at law. We dines it has received, is receiving, deny that formal averment in the and threatens in the future to re- complaint that there is great and ceive from persons without written irreparable injury due to these acts. permission from the fish and game Our claim is that fish meal and fish commission, sardines fit for human oil are fit for human consumption. consumption, and is using the same It is not a deterioration or waste of for reduction purposes, thereby per- fish as those terms are meant in the mitting and causing preventable de- statute, and it is not a reduction terioration and waste thereof; that plant within the statute." defendant threatens to continue so The trial court found in favor of to receive and reduce fish fit for hu- the defendant upon these issues. man consumption at its reduction Appellant contends that the findings plant, unless restrained therefrom, thus made are contrary to the eviand will thereby cause preventable dence; that the judgment is against deterioration and waste of food fish law in that it is not supported by the caught within the waters of this findings, and particularly that the state and great and irreparable loss conclusions of law are in violation and damage to the people of the of the rules laid down in the recent state; that there is no plain, speedy, case of People v. Stafford Packing and adequate remedy at law; and Co. 193 Cal. 719, 227 Pac. 485. The that the acts of defendant, if per- respondent contends that the findmitted to continue, will be such an ings are in accordance with the eviobstruction to the free use of prop

dence and that the judgment is suserty as to interfere with the com- tained by the findings, but places its fortable enjoyment thereof by the principal reliance upon two contenpeople of the state. The defendant tions which were neither discussed in its answer admits that it is en- nor considered in the Stafford Packgaged in the business of manufac- ing Co. Case, supra, namely: First, turing fish meal and fish oil, but de that the statute upon which plaintiff nies practically all of the remaining relies is unconstitutional; and, secallegations of the complaint. The ond, that this statute, even if con

( Cal. —,834 Pac. 398.) stitutional, is not applicable to the species of fish fit for human consituation involved herein, which is sumption for reduction purposes exgoverned by a different statute. cept fish offal; provided, that any

The statute upon which the ap- person, firm or corporation engaged pellant relies is: “An act to con- in taking, catching or dealing in serve the fish supply in California fresh fish or fishery products for huby empowering the fish and game man consumption or any person, commission to regulate and control firm or corporation engaged in the the handling of fish or other fishery business of canning, packing or preproducts for the purpose of prevent- serving fish for human consumption ing deterioration or waste.

desiring to sell or deliver or use Stat. 1919, p. 1203.

in a reduction plant any fish fit Section 4 thereof provides: “No for human consumption shall file person, firm or corporation engaged an application

with the in the business of catching, buying, fish and game commission setselling, canning, packing or preserv- ting forth the kind or species and ing fish, shall suffer or permit, or quantity of fish to be sold, delivered cause any preventable deterioration, or used in a reduction plant. [Here or wilfully do any act that might follow procedural provisions for a cause deterioration or waste of any hearing thereon.] If after hearing fish caught or taken within or with evidence upon said application it out the waters of this state and shall appear that there is no market brought into this state, and no for the fish referred to in said apperson, firm or corporation en- plication and that the taking or usgaged in the business of catching, ing of said fish in a reduction plant buying, selling, canning, packing or will not tend to impair or deplete preserving fish or other fishery said species of fish an order may be products shall sell or offer for sale or made by the board of fish and game delivery, or deliver any fish or other commissioners granting the privifishery products, to any reduction lege to take, catch or kill and deliver plant or divert fish or other fishery to or use in a reduction plant during products for reduction purposes a calendar month an amount of said without first having written permis- fish not to exceed twenty-five per sion from the fish and game commis- cent of the amount any such applision, and no reduction plant shall cant, person, firm or corporation can accept or receive any fish, other than can or pack or preserve for human fish offal, from any person, firm or food during a calendar month. Said corporation without such written order shall not be granted for a pepermission.”

riod longer than a seasonal run of Section 5 thereof, as amended said kind or species of fish men(Stat. 1921, p. 459), provides: “No tioned in said order." person, firm or corporation engaged It is respondent's contention that in the business of taking or catching this act, and particularly $ 5 therefood fish or other fishery food prod- of, is unconstitutional, for the reaucts shall take or catch or kill more son that it excludes everyone exfish or other fishery products than cept those who are engaged in takthe boat or boats owned or operated ing, catching, dealing in, packing, or by said person, firm or corporation preserving fish or fish products for can handle and deliver to the fresh human consumption, from the privfish dealer in a condition fit for hu- ilege of using any such fish in a reman consumption, or to a canner, duction plant, and at the same time packer or preserver of fish in a con- it expressly provides for the grantdition fit to be canned or packed or ing of such privilege to these fapreserved for human consumption. vored classes. Respondent argues

It shall be unlawful for any that there exists no natural, constiperson, firm or corporation to buy or tutional, or intrinsic basis for this sell or receive or use any kind or classification, and that the same is

discrimination

reduction

.

therefore arbitrary, unreasonable, the former. 5 Cal. Jur. $$ 655 et and discriminatory, and constitutes seq., and cases cited. Counsel for special legislation, violating the pro- respondent have advanced no reahibition of both the state and Fed- sons for the adoption of such a coneral Constitutions, citing Van Har- clusion with respect to the statute lingen v. Doyle, 134 Cal. 53, 54 here under consideration. However, L.R.A. 771, 66 Pac. 44; Ex parte we are not disposed to hold that the Sohncke, 148 Cal. 267, 2 L.R.A. exception now un(N.S.) 813, 113 Am. St. Rep. 236, der consideration is Fisheries 82 Pac. 956, 7 Ann. Cas. 475; Con- discriminatory or in permitting nolly v. Union Sewer Pipe Co. 184 unreasonable. When validity. U. S. 563, 46 L. ed. 679, 22 Sup. Ct. a legislative enactRep. 431; Bailey v. People, 190 Ill. ment is attacked upon this ground, 28, 54 L.R.A. 838, 83 Am. St. Rep. all presumptions and intendments 116, 60 N. E. 98; Schaezlein v. Ca- are in favor of the baniss, 135 Cal. 466, 56 L.R.A. 733, reasonableness and presumption 87 Am. St. Rep. 122, 67 Pac. 755; fairness of the leg- as to fairness Hewitt v. Medical Examiners, 148 islative action (5 Cal. 594, 3 L.R.A.(N.S.) 896, 113 Cal. Jur. $$ 628 et seq., and cases Am. St. Rep. 315, 84 Pac. 39, 7 Ann. cited), and the decision of the legisCas. 750. It may be doubted that lature as to what is a sufficient disthese objections, which apply only tinction to warrant

Courts

control to the proviso contained in the stat

the classification of legislative

discretion. ute would, if well founded, be of any will not be overavail to respondent herein. The thrown by the courts unless it is general provisions of the act in palpably arbitrary (Id. $$ 832 et question purport to prohibit all per- seq., and cases cited). sons from using fish fit for human The public policy of this state in consumption (except fish offal) for its relation to the food fish within reduction purposes. The proviso its waters has been clearly, conpurports to except, to a limited ex- sistently, and unmistakably manitent, certain classes of persons from fested throughout the history of its the operation of the general prohi- fish and game legislation. It aims bition, upon the conditions therein at the protection and conservation specified. It may be argued with of food fish for the much reason that if the exception benefit of the pres- public policy thus attempted be invalid because of ent and future gen

with respect to. its arbitrary and discriminatory erations of the people of the state character, the result thereof would and the devotion of such fish to the be to annul the exception, leaving purposes of human consumption. the general prohibitory provisions in confirmation thereof we need only of the act unimpaired. This result refer to the provisions of the Act would in no way improve respond- of 1919 and the amendment thereof ent's position. The general rule is in 1921, supra, and to the provisions

that when a proviso of the Act of 1917, relied upon by Statutes-effect of invalidity in the nature of an respondent herein (Stat. 1917, p. of proviso. exception to a gen

1673). It is plain that the purpose eral statute is invalid, the general and intent of both of these acts is provisions of the statute are not in- to prohibit preventable waste of validated thereby, unless it clearly food fish, to discourage, and so far appears that the provisions of the as practicable to prevent, the use exception are so intimately and in- thereof for any purpose other than herently related to and connected human consumption, and to affirmawith the general provisions to which tively encourage the use thereof for it relates that the legislature would

this purpose.

With this item of not have enacted the latter without public policy in mind, it is apparent

Fisheries

(- Cal. , 234 Pac. 398.) that the purpose of the proviso which are suggested by counsel for which is here claimed to be unrea- appellant. There is no merit in the sonable and discriminatory, is to claim of respondent that the effect aid and encourage those who are en- of this act is to prohibit the legitigaged in catching and preparing mate business of conducting a refish for human consumption, and duction plant by one who is not enthat no reason exists for the giving gaged in packing fish for human of such aid and encouragement to consumption. The act does not prothose who are engaged in diverting hibit the operation of a reduction food fish to other uses. It is to the plant, nor does it prohibit the use interest of the people of the state therein of fish not fit for human conthat the packing plants engaged in sumption or of fish offal. It prohibthe packing and preparing of fish its only the use in such a plant of for human consumption shall be op- fish fit for human consumption. If erated efficiently and economically, the respondent is in fact engaged in so that the price of their product to a legitimate business, it is not prothe consumers thereof may be kept hibited by this act from continuing down. A packing plant can be op- the same. On the other hand, if reerated most efficiently and econom- spondent is engaged in the taking ically when it is enabled to operate and use in its reduction plant of fish steadily at a constant rate of output fit for human con

-prohibition of approaching its maximum capacity. sumption, it is vio- use in reduc

tion plant. But when the fishermen start out to lating the law and is make a catch no one can foretell not engaged in a legitimate business. with exactitude the size of the catch There is no merit in the contention which they will take. Therefore, in that the act is invalid for the reason order to insure so far as practicable that it purports to that the catch for each day shall ap

vest in the commis- law-delegation

Constitutional proximate the capacity of the pack- sion arbitrary au- of legislative

power-effect. ing plant, the act provides that the thority and unguidfish and game commission may, aft- ed discretion, in that it may allow er a hearing, give the packer a per- one canner to take 25 per cent, and mit which will enable him to engage another 5 per cent and another 1 for the taking of a specified quantity per cent of excess fish. The act of fish in excess of his packing ca- confers discretion upon the commispacity, and upon occasions when sion, it is true, but such discretion such excess quantity is brought in is neither unguided nor unconto use the same for reduction pur- trolled. Its exercise is made dependposes. The purpose of this is to al- ent upon the findings of fact after low the packer a certain leeway or a hearing "that there is no market margin of safety to enable him, so for the fish referred to in said apfar as practicable, to operate his plication and that the taking or uspacking plant regularly, and at ca- ing of said fish in a reduction plant pacity. There is no reason for al- will not tend to impair or deplete lowing to the operator of a reduc- said species of fish." It is apparent tion plant, who is not packing fish that there may be varying circumfor human consumption, any mar- stances of time, place, method of gin or leeway whatsoever, because catching fish, location where they he is forbidden to take any fish fit are to be found with relation to the for human consumption for use in location of the cannery, etc., which his reduction plant. This presents may legitimately justify the allowto our minds a reasonable and natu- ance of a larger leeway in one case ral basis for the distinction made in than in another. The legislature the act between the two classes of may, without violating any rule or operators, and it is not necessary principle of the Constitution, conto discuss the other reasons therefor fer upon an administrative board or

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