(~ Cal. -,284 Pac. 398.) Fisheries, § 9 effect of use of product of reduction plant for poultry food. 12. The title to, and property in, the fish within the waters of the state are vested in the state and held by it in trust for the people of the state. [See 11 R. C. L. 1015, 2 R. C. L. Supp. 1350, 4 R. C. L. Supp. 728, 5 R. C. L. Supp. 625.] Fisheries, § 9-right of legislature to control. 13. The legislature may dispose of or protect the fish of the state as it may seem best, subject only to constitutional provisions against discrimination. [See 11 R. C. L. 1041, 1045, 2 R. C. L. Supp. 1352, 4 R. C. L. Supp. 728.] Fisheries, § 2 how become private property. - 14. Fish within the waters of the state can become the subject of private ownership only in such qualified way, and to such limited extent, and subject to such conditions and limitations, as the state through its legislature may see fit to provide and impose. Fisheries, § 2-title to fish caught. 15. Under a statute reserving the title to fish taken from waters of the state. in the state, for the purpose of regulating and controlling the disposition of them, one taking fish unlawfully acquires no title to them and can convey no title to fish taken lawfully upon a reduction plant which is forbidden by statute to receive them. Nuisance, § 9 wrongful use of food fish. 16. The unlawful use of food fish in a reduction plant constitutes a nuis ance, and will not support a finding that such use did not or could not cause any loss or damage to the state which will entitle it to an injunction. Appeal, § 714-question of remedy at law. 17. Whether or not a plain, speedy, and adequate remedy at law exists to prevent the maintenance of a nuisance, is in the first instance a question for the trial court, and if the evidence is conflicting, or if opposing inferences may reasonably be drawn therefrom, it still remains a question of fact for the trial court. Fisheries, § 16 ficiency of action at law. 18. The injury to the state from the exhaustion of the supply of sardines from its waters would be so difficult, if not impossible, to ascertain, as to render an action at law inadequate as a remedy to prevent the issuance of an injunction against such act. injunction - suf Fisheries, § 16 injunction effect of relegating state to action at law. 19. To deny the state relief by injunction against the exhaustion of the supply of food fish in its waters and relegate it to its action at law for damages would defeat pro tanto the legislative policy, as disclosed by statutory enactment, of conserving the fish of the state for human consumption. Fisheries, § 16 injunction criminal prosecution as adequate remedy. 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_General, Robert W. Harrison, and B. D. Marx Greene for appellant. Messrs. R. D. Duke and C. F. Lacey for respondent. issues thus framed were narrowed somewhat by the express admissions of counsel for defendant at the commencement 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: This is an appeal by plaintiff from a judgment in favor of defendant in an action to procure an injunction restraining the defendant from causing or permitting preventable waste of fish fit for human consumption by using the same in a reduction plant for the conversion thereof into fish meal and fish oil. It is alleged in the complaint that the defendant is engaged in the business of operating a reduction plant for the manufacture of fish meal and fish oil and fertilizer, and that during the present seasonal run of sardines it has received, is receiving, and threatens in the future to receive from persons without written permission from the fish and game commission, sardines fit for human consumption, and is using the same for reduction purposes, thereby permitting and causing preventable deterioration and waste thereof; that defendant threatens to continue so to receive and reduce fish fit for human consumption at its reduction plant, unless restrained therefrom, and will thereby cause preventable deterioration and waste of food fish caught within the waters of this state and great and irreparable loss and damage to the people of the state; that there is no plain, speedy, and adequate remedy at law; and that the acts of defendant, if permitted to continue, will be such an obstruction to the free use of property as to interfere with the comfortable enjoyment thereof by the people of the state. The defendant in its answer admits that it is engaged in the business of manufacturing fish meal and fish oil, but denies practically all of the remaining allegations of the complaint. The the complaint that the defendant is engaged in operating a reduction plant. We admit that we are manufacturing fish meal and fish oil, but deny that we are operating or manufacturing fertilizer. We admit we have received fish [fit for human consumption] from persons who have no permit from the fish commission, and we intend to continue to do so. We deny we are causing preventable deterioration or waste of fish, and we deny that our use of fish is depleting the supply of sardines, and we also deny that there is no adequate remedy at law. We deny that formal averment in the complaint that there is great and irreparable injury due to these acts. Our claim is that fish meal and fish oil are fit for human consumption. It is not a deterioration or waste of fish as those terms are meant in the statute, and it is not a reduction plant within the statute." The trial court found in favor of the defendant upon these issues. Appellant contends that the findings thus made are contrary to the evidence; that the judgment is against law in that it is not supported by the findings, and particularly that the conclusions of law are in violation of the rules laid down in the recent case of People v. Stafford Packing Co. 193 Cal. 719, 227 Pac. 485. The respondent contends that the findings are in accordance with the evidence and that the judgment is sustained by the findings, but places its principal reliance upon two contentions which were neither discussed nor considered in the Stafford Packing Co. Case, supra, namely: First. that the statute upon which plaintiff relies is unconstitutional; and, second, that this statute, even if con (Cal., 284 Pac. 398.) stitutional, is not applicable to the situation involved herein, which is governed by a different statute. The statute upon which the appellant relies is: "An act to conserve the fish supply in California by empowering the fish and game commission to regulate and control the handling of fish or other fishery products for the purpose of preventing deterioration or waste. Stat. 1919, p. 1203. Section 4 thereof provides: "No person, firm or corporation engaged in the business of catching, buying, selling, canning, packing or preserving fish, shall suffer or permit, or cause any preventable deterioration, or wilfully do any act that might cause deterioration or waste of any fish caught or taken within or without the waters of this state and brought into this state, and no person, firm or corporation engaged in the business of catching, buying, selling, canning, packing or preserving fish or other fishery products shall sell or offer for sale or delivery, or deliver any fish or other fishery products, to any reduction plant or divert fish or other fishery products for reduction purposes without first having written permission from the fish and game commission, and no reduction plant shall accept or receive any fish, other than fish offal, from any person, firm or corporation without such written permission." Section 5 thereof, as amended (Stat. 1921, p. 459), provides: "No person, firm or corporation engaged in the business of taking or catching food fish or other fishery food products shall take or catch or kill more fish or other fishery products than the boat or boats owned or operated by said person, firm or corporation can handle and deliver to the fresh fish dealer in a condition fit for human consumption, or to a canner, packer or preserver of fish in a condition fit to be canned or packed or preserved for human consumption. It shall be unlawful for any person, firm or corporation to buy or sell or receive or use any kind or species of fish fit for human consumption for reduction purposes except fish offal; provided, that any person, firm or corporation engaged in taking, catching or dealing in fresh fish or fishery products for human consumption or any person, firm or corporation engaged in the business of canning, packing or preserving fish for human consumption desiring to sell or deliver or use in a reduction plant any fish fit for human consumption shall file an application with the fish and game commission setting forth the kind or species and quantity of fish to be sold, delivered or used in a reduction plant. [Here follow procedural provisions for a hearing thereon.] If after hearing evidence upon said application it shall appear that there is no market for the fish referred to in said application and that the taking or using of said fish in a reduction plant will not tend to impair or deplete said species of fish an order may be made by the board of fish and game commissioners granting the privilege to take, catch or kill and deliver to or use in a reduction plant during a calendar month an amount of said fish not to exceed twenty-five per cent of the amount any such applicant, person, firm or corporation can can or pack or preserve for human food during a calendar month. Said order shall not be granted for a period longer than a seasonal run of said kind or species of fish mentioned in said order." It is respondent's contention that this act, and particularly § 5 thereof, is unconstitutional, for the reason that it excludes everyone except those who are engaged in taking, catching, dealing in, packing, or preserving fish or fish products for human consumption, from the privilege of using any such fish in a reduction plant, and at the same time. it expressly provides for the granting of such privilege to these favored classes. Respondent argues that there exists no natural, constitutional, or intrinsic basis for this classification, and that the same is therefore arbitrary, unreasonable, and discriminatory, and constitutes special legislation, violating the prohibition of both the state and Federal Constitutions, citing Van Harlingen v. Doyle, 134 Cal. 53, 54 L.R.A. 771, 66 Pac. 44; Ex parte Sohncke, 148 Cal. 267, 2 L.R.A. (N.S.) 813, 113 Am. St. Rep. 236, 82 Pac. 956, 7 Ann. Cas. 475; Connolly v. Union Sewer Pipe Co. 184 U. S. 563, 46 L. ed. 679, 22 Sup. Ct. Rep. 431; Bailey v. People, 190 Ill. 28, 54 L.R.A. 838, 83 Am. St. Rep. 116, 60 N. E. 98; Schaezlein v. Cabaniss, 135 Cal. 466, 56 L.R.A. 733, 87 Am. St. Rep. 122, 67 Pac. 755; Hewitt v. Medical Examiners, 148 Cal. 594, 3 L.R.A. (N.S.) 896, 113 Am. St. Rep. 315, 84 Pac. 39, 7 Ann. Cas. 750. It may be doubted that these objections, which apply only to the proviso contained in the statute would, if well founded, be of any avail to respondent herein. The general provisions of the act in question purport to prohibit all persons from using fish fit for human consumption (except fish offal) for reduction purposes. The proviso purports to except, to a limited extent, certain classes of persons from the operation of the general prohibition, upon the conditions therein specified. It may be argued with much reason that if the exception thus attempted be invalid because of its arbitrary and discriminatory character, the result thereof would be to annul the exception, leaving the general prohibitory provisions of the act unimpaired. This result would in no way improve respond ent's position. The general rule is Statutes-effect of invalidity of proviso. that when a proviso in the nature of an exception to a general statute is invalid, the general provisions of the statute are not invalidated thereby, unless it clearly appears that the provisions of the exception are so intimately and inherently related to and connected with the general provisions to which it relates that the legislature would not have enacted the latter without Cal. Jur. §§ 628 et seq., and cases cited), and the decision of the legislature as to what is a sufficient distinction to warrant Courts control the classification of legislative will not be overthrown by the courts unless it is palpably arbitrary (Id. §§ 832 et seq., and cases cited). discretion. with respect to. The public policy of this state in its relation to the food fish within its waters has been clearly, consistently, and unmistakably manifested throughout the history of its fish and game legislation. It aims at the protection and conservation of food fish for the Fisheriesbenefit of the pres- public policy ent and future generations of the people of the state and the devotion of such fish to the purposes of human consumption. In confirmation thereof we need only refer to the provisions of the Act of 1919 and the amendment thereof in 1921, supra, and to the provisions of the Act of 1917, relied upon by respondent herein (Stat. 1917, p. 1673). It is plain that the purpose and intent of both of these acts is to prohibit preventable waste of food fish, to discourage, and so far as practicable to prevent, the use thereof for any purpose other than human consumption, and to affirmatively encourage the use thereof for this purpose. With this item of public policy in mind, it is apparent (Cal., 234 Pac. 398.) that the purpose of the proviso which is here claimed to be unreasonable and discriminatory, is to aid and encourage those who are engaged in catching and preparing fish for human consumption, and that no reason exists for the giving of such aid and encouragement to those who are engaged in diverting food fish to other uses. It is to the interest of the people of the state that the packing plants engaged in the packing and preparing of fish for human consumption shall be operated efficiently and economically, so that the price of their product to the consumers thereof may be kept down. A packing plant can be operated most efficiently and economically when it is enabled to operate steadily at a constant rate of output approaching its maximum capacity. But when the fishermen start out to make a catch no one can foretell with exactitude the size of the catch which they will take. Therefore, in order to insure so far as practicable that the catch for each day shall approximate the capacity of the packing plant, the act provides that the fish and game commission may, after a hearing, give the packer a permit which will enable him to engage for the taking of a specified quantity of fish in excess of his packing capacity, and upon occasions when such excess quantity is brought in to use the same for reduction purposes. The purpose of this is to allow the packer a certain leeway or margin of safety to enable him, so far as practicable, to operate his packing plant regularly, and at capacity. There is no reason for allowing to the operator of a reduction plant, who is not packing fish for human consumption, any margin or leeway whatsoever, because he is forbidden to take any fish fit for human consumption for use in his reduction plant. This presents to our minds a reasonable and natural basis for the distinction made in the act between the two classes of operators, and it is not necessary to discuss the other reasons therefor which are suggested by counsel for appellant. There is no merit in the claim of respondent that the effect of this act is to prohibit the legitimate business of conducting a reduction plant by one who is not engaged in packing fish for human consumption. The act does not prohibit the operation of a reduction plant, nor does it prohibit the use therein of fish not fit for human consumption or of fish offal. It prohibits only the use in such a plant of fish fit for human consumption. If the respondent is in fact engaged in a legitimate business, it is not prohibited by this act from continuing the same. On the other hand, if respondent is engaged in the taking and use in its reduction plant of fish fit for human con- -prohibition of sumption, it is vio- use in reduclating the law and is tion plant. Constitutional power-effect. not engaged in a legitimate business. |