Lynch Meats of Oakland, Inc. v. City of Oakland

• Decision Date: 04 October 1961
• Citation: 196 Cal.App.2d 104,16 Cal.Rptr. 302
• Court: California Court of Appeals Court of Appeals
• Parties: LYNCH MEATS OF OAKLAND, INC., and Lynch Meats of Broadway, Inc., Plaintiffs and Respondents. v. CITY OF OAKLAND, a Municipal Corporation, Wyman Vernon, et al., Defendants and Appellants, Paul Busch, Intervenor and Appellant, Ransom Ernest Locke, Intervenor and Respondent. Civ. 19417.

Page 302

16 Cal.Rptr. 302

196 Cal.App.2d 104

LYNCH MEATS OF OAKLAND, INC., and Lynch Meats of Broadway, Inc., Plaintiffs and Respondents. v. CITY OF OAKLAND, a Municipal Corporation, Wyman Vernon, et al., Defendants and Appellants Paul Busch, Intervenor and Appellant Ransom Ernest Locke, Intervenor and Respondent.

Civ. 19417.

District Court of Appeal, First District, Division 1, California.

Oct. 4, 1961.

Hearing Denied Nov. 29, 1961.

Hilton J. Melby, City Atty., Mark B. Shragge, Deputy City Atty., Oakland, for appellant City of Oakland.

Jefferson E. Peyser, San Francisco, Francis H. Ollerdessen, Oakland, for appellant Busch.

Hardin, Fletcher, Cook ,& Hayes, Caldecott & Peck, Guidotti & Mellana, Oakland, Cyril Viadro, San Francisco, of counsel, for respondents.

BRAY, Presiding Justice.

In a declaratory relief action brought to determine the constitutionality of a certain ordinance, defendant, city of Oakland, and intervenor, Paul Busch, appeal from a judgment in favor of plaintiffs and intervenor, Ransom Ernest Locke, declaring said ordinance unconstitutional.

Questions Presented.

1. Is the ordinance requiring the closing of places selling uncured and uncooked meats between the hours of 6:00 p. m. and 7:00 a. m. and on Sundays and certain holidays unconstitutional?

2. Alleged error in admitting evidence of opinion of 43 health officers.

Record.

In 1932 the city of Oakland adopted an ordinance known as section 4-3.43 of the Oakland Municipal Code prohibiting in the city of Oakland the sale of uncured and uncooked meats between the hours of 6:00 p. m. and 7:00 a. m. in any weekday, on Sundays and on eight specified holidays. Plaintiffs, operating meat markets in Oakland, filed this action in declaratory relief to have said ordinance declared unconstitutional. Paul Busch intervened, alleging that he is engaged in said city in the business of selling uncured and uncooked meats and that the abolition of the ordinance would produce a health hazard, contending that the ordinance is constitutional. Ransom Ernest Locke intervened, alleging that he operates a meat market in Oakland, and contends that the ordinance is unconstitutional. The court found that the hours of sale of uncooked and uncured meats now have no relationship to the protection of public health, and that the ordinance is discriminatory, an arbitrary classification and unconstitutional.

1. Validity of the Ordinance.

As said in Allied Properties v. Department of Alcoholic Beverage Control, 1959, 53 Cal.2d 141, 146-147, 346 P.2d 737, 739, 'Where, as here, it is urged that a statute does not constitute a proper exercise of the police power, the inquiry of the court is limited to determining whether the object of the statute is one for which that power may legitimately be invoked and, if so, whether the statute bears a reasonable and substantial relation to the object sought to be attained.' The same rule applies to an ordinance of a municipality as to a statute. It is not questioned that the inquiry as to (1), must be answered affirmative, that the municipality has the power to regulate meat markets. As said in In re Lowenthal, 1928, 92 Cal.App. 200, 202, 267 P. 886, 887: 'The conduct of a meat market has always been the subject of regulation under the police power of the state or any municipality.'

In considering the second portion of the above rule, it must be remembered that the determination by the legislative body that the ordinance is necessary for the protection of the public health may not be disturbed by the courts, in the absence of a showing that the regulation in the ordinance bears no substantial relation to the object sought to be obtained. See Lawenthal, supra, 92 Cal.App. at page 202, 267 P. 886.

Ordinances practically identical with the Oakland one have been held constitutional in the following cases: In re Lowenthal, supra, 92 Cal.App. 200, 267 P. 886; In re Gatsios, 1928, 95 Cal.App. 762, 273 P. 826; Dorsa v. Board of Supervisors, 1937, 23 Cal.App.2d 217, 72 P.2d 912; In re Banta, 1938, 25 Cal.App.2d 622, 78 P.2d 243; Justensen's Food Stores v. City of Tulare, 1941, 43 Cal.App.2d 616, 111 P.2d 424. ¹

There are no cases in California holding to the contrary. The ground upon which the like ordinances have been upheld is that inspection of meat markets is necessary for the preservation of public health, that inspection forces are usually employed only in the daytime, that it is unreasonable to expect municipalities to establish inspection forces for night inspections of meat markets, and that as said in Lowenthal, supra, 92 Cal.App. at page 203, 267 P. at page 887, concerning an ordinance requiring closing of meat markets at night, 'Its manifest object is to prevent the sale of unfit or tained meat at a time when those employed to safeguard the people are not on duty.' (Emphasis added.)

The last case in California discussing ordinances closing meat markets at night was decided in 1941 in Justesen's Food Stores v. City of Tulare, supra, 43 Cal.App.2d 616, 111 P.2d 424. It reaffirmed the principle that such an ordinance was constitutional because of the necessity for, but lack of inspection at night. In re Lowenthal, supra, 92 Cal.App. at page 203, 267 P. at page 887, stated that 'Fresh and uncooked meats * * * [require] constant supervision to insure their wholesomeness * * *.' (Emphasis added.) The other cases considering the question refer to the statement in Lowenthal concerning the need for constant supervision. In Justesen's Food Stores, supra, 43 Cal.App.2d 616, at page 622, 111 P.2d 424, at page 427, the court said: '[T]here is a need for rigid and frequent inspections by skilled public inspectors of fresh meats carried in meat markets and butcher shops to prevent the sale of impure or tainted meats * * *.' (Emphasis added.) In Ganley v. Claeys, 1935, 2 Cal.2d 266, 40 P.2d 817, where the court held unconstitutional an ordinance regulating the opening and closing of barber shops, the court distinguished the situation in the butcher shop cases by saying that 'regulation in the butchering business * * * deals directly with the product which is subject to rigid inspection * * *.' 2 Cal.2d at page 269, 40 P.2d at page 818. (Emphasis added.) Thus, it appears that the meat market closing regulations have been upheld because at the time they were considered there appeared to be a necessity for 'constant supervision' (In re Lowenthal, supra, 92 Cal.App. at page 203, 267 P. 886) and 'rigid and frequent inspections' (Justesen's Food Stores, supra, 43 Cal.App.2d at page 622, 111 P.2d at page 427).

Does it now appear that such necessity no longer exists? In determining that question we must bear in mind, 'The principles governing courts in determining the validity of legislative enactments under the due process of law clause are clearly defined. A legislative body, in the exercise of its police power, has a broad discretion to determine both what public interests are and the measures necessary for the protection of such interests. The determination of the need for a mode of exercising the power is primarily for the legislative body and the courts will not hold enactments invalid unless they are palpably unreasonable, arbitrary or capricious, having no tendency to promote the public welfare, safety, morals, or general welfare. Every presumption is in favor of the reasonableness of the law and its validity. A court is not concerned with the wisdom or policy of the law and cannot substitute its judgment for that of the legislative body. If reasonable minds might differ as to the reasonableness of the regulation, the law must be upheld. [Citations.]' Justesen's Food Stores, supra, 43 Cal.App.2d at pages 620-621, 111 P.2d at page 427. While it is doubtful if the courts may take judicial notice of the details of refrigeration and whether butcher shops as a whole are completely refrigerated, or the extent to which packaging of meats is used (as the trial court apparently did), it is certain that notice may be taken of the fact that there has been a great change or improvement generally in the matter of refrigeration in such shops and that the packaging of meats in plastic or cellophane containers is carried on in many shops, and is a development since the year 1941 when the last case on this subject was considered.

Dr. Malcolm, the Alameda County Health Officer, testified that the purposes of inspection of meat markets was '[f]or sanitary aspects, cleanliness, the handling and storage of the product or meat, to see whether the materials are properly displayed from the standpoint of refrigeration, or away from persons who might--general cleanliness of the place; whether or not there are adequate facilities, for example, toilet facilities or hand-washing facilities for the persons involved * * * how it [meat] is displayed, whether meats are properly refrigerated, whether the general cleanliness of the meat market area is appropriate.' Both Dr. Malcolm and Dr. Geiger, the latter testifying for appellant, agree that the primary purpose of city inspection is inspection of the markets and not of the meats, except, of course, any spoilage which may occur in the market. It is considered that the inspection of meat before it reaches the market by various governmental agencies is sufficient to insure that the meat is in proper condition for sale on arrival. Dr. Malcolm testified that the hours of sale are not related to the public health nor are the inspectional services for the protection of the public health in any way related to the hours of sale of meat. The city inspects, on the general average, about five or six times per year. Although the sanitarians who make the inspection work an 8 hour day, 40 hour week, on occasion they have inspected on a Sunday or holiday. In the latter inspections they found no differences in the condition of the markets from that during regular working hours. Dr. Geiger testified that the more meat is...