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officer a large measure of discretion, dently adopted by the trial court,

provided the exer- as it made a finding that all of the -right of legislature to cise thereof is guid- sardines accepted and received by delegate power.

ed and controlled by the defendant were caught by the rules prescribed therefor. Tarpey

. Tarpey individual market fishermen who v. McClure, 190 Cal. 593, 213 Pac. were unable to sell

Fisheries-effect 983, and cases cited.

them for human of permitting Under its second point, supra, re- consumption.

We destroy fish on spondent contends that it is not gov- are not in accord rights of reduc

tion plants. erned or affected by the Act of 1919, with this view. which we have been considering There is no conflict between the two herein, but that it is acting pursuant acts as to the matter here under conto and by virtue of authority ex- sideration. The 1919 Act covers a pressly granted to it by the Act of field of legislation not at all covered 1917, supra (Stat. 1917, p. 1673). by the 1917 Act. The earlier act Section 5 of this act provides that contains certain prohibitions against the state market director is author- the destruction or diversion of food ized to regulate and control the busi- fish which are by its terms expressness of buying, selling, and other- ly made inapplicable to the individwise disposing of fresh food fish, ual market fisherman who is unable and that such fish may not be to sell for human consumption fish bought, sold, or disposed of except he has caught. The later act conin accordance with the provisions of tains other and broader prohibithe act. Section 7 thereof makes it tions, which apply to all persons, unlawful to destroy food fish in ex- firms, or corporations engaged in cess of 50 pounds per day, or to di- the business of catching fish. This vert any food fish to any use other of necessity includes the individual than human consumption without market fisherman who was excepted the written consent of the market from the operation of the earlier director. This is followed by a act. There is no merit in the claim proviso that "nothing in this section that the earlier act grants to or conshall be construed to apply

fers upon such market fisherman a to any individual market fisherman substantive right to destroy or diwho is unable to sell for human con- vert fish caught by him. It does no sumption fish he has caught and more than this: It omits to prohibit who within forty-eight hours after him from so doing. The earlier act the destruction or diversion of said expressly negatives the contention fish shall report to the state market that it is applicable to the situation director the number of pounds and here in question by the proviso that varieties of fish and how disposed "nothing in this section shall be conof...

strued to apply

." thereto. Respondent argues that this pro- In short, the later statute covers a viso is in effect an express grant to field not covered by the earlier, and market fishermen, under the circum- there is no conflict in this respect stances there mentioned, of the between the two. The diversion of right and authority to destroy or di- fish by the individual market fisher. vert the fish caught by them, and man who is unable to sell his catch that, incidentally and by necessary is not prohibited by the earlier statimplication, it is a grant to respond- ute, but it is prohibited by the later ent of the right to use such fish in one. We conclude, therefore, that its reduction plant; that the later the Statute of 1919, as amended in Act of 1919 does not expressly re- 1921, is the statute which governs peal this act; and that under well- the respective rights and obligations established rules of statutory con- of the parties hereto, and that it is struction it should not be construed not invalid by reason of any of the as affecting such repeal by implica matters which have been suggest tion. This view of the law was evi- herein. This brings us to a con( Cal. , 234 Pac. 398.) sideration of the points upon which The Standard Dictionary gives a appellant relies for a reversal of the substantially similar definition. It judgment.

is true, as suggested by respondent, In findings 1 and 2 the court that this word has also other and found that “it is not true that the widely variant meanings, but no othdefendant is or ever was engaged er approved definition thereof has in the business of operating a reduc- been suggested as being in any wise tion plant for the manufacture of appropriate to the context of the fish meal, fish oil, and fertilizer, statute here in question. This court

or is now accepting or re- has defined the word "reduce," when ceiving sardines at any reduction applied to the mining industry, as plant, or is, or ever was, using said meaning “to bring to a specified fish for reduction purposes."

form or condition, 'as, to reduce a As we have noted, the defendant rock to powder, or, to deprive an ore expressly admitted at the com- of nonmetallic constituents," and mencement of the trial that it was has held that the word "reduction," engaged in the business of operating used in this connection, means the a plant for the reduction of fish into separation of metals from their fish oil and fish meal. It contended, ores. Re Martin, 157 Cal. 60, 106 however, that this does not consti- Pac. 239. In that case, it was also tute a reduction plant as that ex- held that the phrase "smelters and pression is used in the statute be- other institutions for the reduction cause of the fact that the resulting or refining of ores or metals," when products—fish oil and fish meal- contained in a penal statute, is suffiwere not sold by the defendant to ciently comprehensive to include a be used, and were not used, as fer- quartz mill in which the operation tilizer, but were sold to be used, and consisted solely of crushing ore and were in fact used, as poultry food. then washing the same. The procIn short, it is defendant's conten- ess used by defendant herein, briefly tion that a plant which is engaged described, consists in cooking the in the reduction of fish to fish oil fish, separating and removing thereand fish meal is a reduction plant from the major portion of the oil only when those products are used and water content thereof, and as fertilizer, and is not a reduction grinding the residue to a meal or plant when the products are used as powder known as fish meal. Prepoultry food. The trial court evi- cisely the same process is used in dently concurred with and adopted those plants which are operated for this contention, as it is the only the- the reduction of fish for use as ferory upon which these findings are tilizer, except that in the latter case explicable. Respondent asserts that the meal may be ground to a finer to 'the man in the street the term powder than is desirable for poultry ‘reduction plant signifies a place food, and except, further, that when where dead animals, garbage, offal, the product is to be used as fertiliand waste material are converted in- zer fish may be used in such an adto fertilizer of the soil.

vanced stage of decomposition as We are not aware of this fact, if would render the product unfit for it be a fact. We find no authority, poultry food. Having in mind the either among the lexicographers or manifest policy of the act, which is the law-writers or the decided cases, the conservation of fish for the purfor so narrow and restricted a def- pose of human consumption, we inition. The verb "reduce" is de have no doubt that the expression fined by Webster as follows: "To "reduction plant,” bring to a certain state or condition as used therein, is product of reby grinding, pounding, kneading, at least sufficiently duction plant

for poultry food. rubbing, etc.; as, to reduce a sub- inclusive to apply to stance to powder, or to a past; any plant engaged in the reduction mass; to reduce fruit, wood, or pa- of fish into other products which are per rags to pulp."

not intended to be used, and are not

-effect of use of

-title to.

in fact used, for human consump- clusion of the learned trial judge tion. In this view of the law there that the defendant in using fresh is no basis in the evidence for the food fish in its reduction plant was quoted findings numbered 1 and 2, exercising a right granted to it by and the same conclusion applies to the Statute of 1917, supra, and the first portion of finding No. 4, therefore committed no wrong. Of to the effect that it is not true that course, if the defendant were in fact the defendant threatens to accept or acting within its legal rights and receive sardines at any reduction committing no wrong, the plaintiff plant, or threatens to use such fish could not in contemplation of law be for reduction purposes.

damaged thereby. But, as we have Finding 3 and a portion of finding seen, the Statute of 1917 confers no 4 are to the effect that it is not true such right. The title to, and propthat the defendant has, or is now erty in, the fish within the waters permitting or causing, or threaten- of the state, are ing to permit or cause, preventable vested in the state or other deterioration or waste of of California and held by it in trust fish caught within the waters of this for the people of the state. Geer v. state. It is clear from the terms and Connecticut, 161 U. S. 519, 529, 40 provisions of the statute that the L. ed. 793, 796, 16 Sup. Ct. Rep. 600;

term “waste" as People v. Truckee Lumber Co. 116 -meaning of provision

there used was de- Cal. 397, 39 L.R.A. 581, 58 Am. St. against waste.

signed to include Rep. 183, 48 Pac. 374; Re Phoedoand to apply to the use of fresh food vius, 171 Cal. 238, 110 Pac. 412;

, fish for any purpose other than hu- People v. Stafford Packing Co. 193 man consumption. There was un- Cal. 719, 227 Pac. 485. The legiscontradicted testimony at the trial lature may dispose thereof as to it from one of defendant's witnesses may seem best, subject only to conthat two fishermen, named by him, stitutional limita

-right of were engaged in fishing with the di- tions against dis- legislature

to control. rect purpose of delivering their crimination. Withcatch to the defendant for use in its in those limitations the legislature, reduction plant. There was other for the purpose of conserving and testimony, uncontradicted, as to the protecting fish, may pass such laws number of tons of fresh fish which as to it seem wise, and the question had been delivered by these two what measures are best adapted to fishermen to the defendant upon that end is for its determination. specified dates shortly prior to the Ex parte Kenneke, 136 Cal. 527, 89 trial. This was not only a violation Am. St. Rep. 177, 69 Pac. 261; of the prohibitory provisions of the Re Phoedovius, 171 Cal. 238, 170 statute, but we think that it consti- Pac. 412. Such fish can become the tuted preventable waste within the subject of private meaning thereof.

ownership only in private properts. The court further found that it is

such qualified way, not true that any use made of such

to such limited extent, and subject

to such conditions and limitations, fish by the defendant will cause any

as the state through its legislature loss or damage to the people of the

may see fit to provide and impose. state of California, or will be such

Re Phoedovius, supra; Paladini v. an obstruction to the free use of

Superior Ct. 178 Cal. 369, 173 Pac. property as to interfere with the

588. comfortable enjoyment of property

"It is, therefore, evident that by the people of the state of Cali

what the people of the state own fornia, or that the defendant threat they can alienate on such terms as ens to continue to commit any they choose to impose, and that this wrongful act. These findings are power of regulation continues so apparently predicated upon the con- long as such fish or game are the

-how become

at law.

PEOPLE v. MONTEREY FISH PRODUCTS CO.

CTS

1195 (- Cal. , 234 Pac. 398.) subject of trade or transfer.” Pal- jury so inflicted upon the plaintiff, adini v. Superior Ct. supra.

and which the defendant admittedly In section 4 of the Act of 1917, threatens to continue to so inflict, is supra (Stat. 1917, p. 1674), the leg- or will be irreparable in such sense islature imposed the following lim- as to entitle the plaintiff to injuncitations : “No such fish shall be tive relief. This question is so incaught, taken or killed in any man- timately bound up with the question ner or at any time except that the of the availability of an adequate person so catching, taking or killing remedy at law that the two may or having the same in his possession, well be considered together. The irrespective of the manner in which court found: “It is not true that they were obtained, shall by such act the plaintiff has no plain, speedy, or possession thereby consent that and adequate remedy at law. the title to such fish shall be and As we pointed out in the Stafford remain in the state of California for Case, supra, this is in the first inthe purpose of regulating and con- stance a question for the trial court, trolling the use and disposition of and if the evidence

Appeal-quessame after such catching, taking or is conflicting, or if tion of remedy killing, except that the title to such opposing inferences fish legally taken shall vest in the may reasonably be drawn thereperson so taking or possessing them, from, it still remains a question of subject to the restrictions and pro- fact for the trial court. There still visions of law."

remains for review upon appeal, It follows that if the fish were however, the question whether there taken in violation of law, the fisher- is any substantial evidence to supman who caught them acquired no port the finding thereon. The court

title thereto, and also found “that the supply of sar-title to fish

even if they were caught.

dines in the Bay of Monterey, and taken lawfully, a generally along the Pacific Coast, is sale thereof to defendant for use in practically inexhaustible, and that its reduction plant would convey no the quantity heretofore taken from title thereto, and the title would the Bay of Monterey during the seastill remain in the state. The use of sonal run of sardines has not apfish which was admittedly made by preciably depleted said species of the defendant herein was not mere- fish, but on the contrary said species ly a violation of prohibitory provi- is upon the increase.” sions of a statute, but was also a Appellant vigorously assails this wrong committed against the prop- finding as unsupported by, and conerty right of the plaintiff. It was trary to, the evidence. But we are such an obstruction to the free use inclined to disagree with this conof property as to interfere with the tention. There was evidence that comfortable enjoyment thereof by the supply of sardines in the vicin

the people of the ity of the Bay of Monterey had not Nuisancewrongful use of state of California been appreciably depleted up to the

and as such consti- time of trial. There was also evituted a nuisance. People v. Truckee dence to the effect that the size of Lumber Co. 116 Cal. 397, 39 L.R.A. the catch in this vicinity has in581, 58 Am. St. Rep. 183, 48 Pac. creased since 1919. There was no 374; People v. Stafford Packing Co. evidence that the supply is practicalsupra. Under these circumstances, ly inexhaustible or that the species it cannot be said that such use of is on the increase, except as these fish by the defendant did not or will facts might be inferred from the not cause any loss or damage to the testimony above adverted to. There plaintiff, and this finding is there- was also testimony, not substantialfore contrary to the evidence. ly contradicted, to the effect that if

This brings us to the question unrestricted fishing of sardines in whether or not the damage and in- the coastal waters of this state for

food fish.

the reduction thereof into fertilizer unauthorized seizure and taking of and poultry food is permitted, the property for a use other than a pubsupply will not merely be depleted, lic use. The remedy which was sug. but will be practically exhausted as gested in the Stafford Case, supra, a result thereof. But as this was as an adequate remedy at law, to in the nature of opinion evidence wit, the revocation of defendant's and as the facts upon which the permit, is inapplicable herein beopinion was predicated are nowise cause this defendant has no permit conclusive, we are not prepared to which is subject to revocation. It say that the trial court was bound is operating without a permit and in to accept this testimony at its face violation of the law. The circumvalue. We conclude that this find- stance that it may be prosecuted ing is not unsupported by the evi- criminally for a violation of the pen

a dence, but we do not regard it as al provisions of the statute affords determinative of the present ques- no adequate remedy tion. The only other remedy sug- for a civil wrong, criminal prose

-injunetiongested by respondent as available to which consists of an cution as ade

quate remedy. appellant herein is an action at law invasion of plainfor damages. It is apparent that

It is apparent that tiff's property right. People v. the amount of damages which would Truckee Lumber Co. and People v. compensate plaintiff for the destruc- Stafford Packing Co. supra. tion of its fish and the diversion conclude that there is no adequate thereof to uses other than human remedy at law available to the plain

consumption would tiff herein, and this conclusion renFisheries injunction

be extremely diffi- ders it unnecessary to consider sufficiency of cult, if not impos- plaintiff's contention that under subaction at law.

sible, of ascertain- division 1 of § 526, Code of Civil ment. This is particularly true in Procedure, it is not required to show the light of the circumstances that great or irreparable injury in order the state owns the fish, not in a pri- to entitle itself to injunctive relief. vate or proprietary capacity, but in The finding of the trial court "that its sovereign capacity and as a trus- large quantities of the sardines tee for the people of the state. which have been accepted and re

It is further apparent that to rele ceived by the defendant were unfit gate the state to an action for dam- for human consumption

ages would be to de- immaterial in the light of the fact -injunctioneffect of relegat- feat pro tanto the that it was proven by uncontradict.

legislative policy of ed testimony and expressly admitaction at law. conserving the fish ted by defendant

-injunctionof the state for human consumption.

that it was also en- partial legal As was suggested in Hulbert v. Cal

gaged in receiving use-effeet.

ifornia Cement Co. 161 Cal. 239, 38

and using in its reduction plant L.R.A.(N.S.) 436, 118 Pac. 928, to

large quantities of fish which were permit the defendant to continue the

fit for human consumption. taking and destruction of the prop- For the reasons above indicated, erty of plaintiff, even though the de- the judgment is reversed. fendant be required to pay the full We concur: Shenk, J.; Seawell, value thereof as damages, would be, J.; Richards, J.; Waste, J.; Lennon,

J in effect, to allow and to legalize the J.; Lawlor, J.

ANNOTATION. Constitutionality and construction of statutes for prevention of waste of food

products. I. Scope, 1196.

1. Scope. II. In general, 1197.

This annotation is limited strictly III. Fish, 1198.

to statutes intended to prevent de

" is

ing state to

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