Pennisi v. Department of Fish & Game

• Decision Date: 26 September 1979
• Parties: Guiseppe PENNISI, Plaintiff and Appellant, v. STATE of California FISH AND GAME DEPARTMENT, and E. C. Fullerton, Defendants and Respondents. Civ. 45646.
• Court: California Court of Appeals Court of Appeals

Page 683

158 Cal.Rptr. 683

97 Cal.App.3d 268

Guiseppe PENNISI, Plaintiff and Appellant, v. STATE of California FISH AND GAME DEPARTMENT, and E. C. Fullerton, Defendants and Respondents.

Civ. 45646.

Court of Appeal, First District, Division 2, California.

Sept. 26, 1979.

Law Offices of David M. Hollingsworth, Monterey, for plaintiff and appellant.

George Deukmejian, Atty. Gen., R. H. Connett, Asst. Atty. Gen., Christopher M. Ames, Deputy Atty. Gen., San Francisco, for defendants and respondents.

CALHOUN, ^* Associate Justice.

Plaintiff, Guiseppe Pennisi (appellant) appeals from a judgment rendered in favor of defendants State of California Fish and Game Department and director E. C. Fullerton (respondents) in an action brought for declaratory relief.

The summarized facts reveal that in April 1977, trawl nets belonging to appellant, a commercial fisherman, were seized by respondents for the reason that they had undersized net meshes in violation of section 8602 of the Fish and Game Code. ¹ Subsequently, two misdemeanor complaints were filed in the municipal court charging appellant with violation of sections 8841, 8831 and 2002. Thereafter, civil actions were brought in the superior court under section 8630 which provides for forfeiture of illegal trawl nets (Actions Nos. M 8717, M 8718).

Since the outcome of both the criminal and civil actions, in the final analysis, depends on section 8602, which sets out the manner of determining the length of meshes, appellant initiated a declaratory relief action seeking a judicial interpretation of section 8602 and his rights thereunder. Appellant strenuously contended in the proceeding below that, pursuant to the plain meaning of section 8602, ² the knotted nets (the type of nets owned by appellant and seized by respondents) should be measured in a separate or random fashion, and the statutory requirement that the length of meshes must be determined by taking four meshes while they are simultaneously drawn closely together should be applied only to knotless nets, not involved in the present dispute. The pretrial order limited the issues to the interpretation and constitutionality of section 8602. After receiving evidence and considering the legal arguments of the parties, the trial court, sitting without a jury, decided both issues against appellant by holding that under section 8602 both knotted and knotless nets shall be measured while four meshes are simultaneously drawn closely together and that section 8602 does not suffer from constitutional infirmity due to vagueness or uncertainty.

Appellant assails both of the trial court's rulings. First, appellant claims: (1) the code section in question is clear and unambiguous, and as a consequence its meaning must be ascertained solely from the words used therein (People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30, 127 Cal.Rptr. 122, 544 P.2d 1322; Outboard Marine Corp. v. Superior Court (1975) 52 Cal.App.3d 30, 124 Cal.Rptr. 852; People v. Van Alstyne (1975) 46 Cal.App.3d 900, 121 Cal.Rptr. 363); (2) the plain meaning of the statute is contrary to the interpretation reached by the trial court; and (3) the admission of extrinsic evidence to show legislative intent (i. e., legislative history of § 8602, the legislative objective, contemporary administrative construction, and the like) constitutes prejudicial error. The second major thrust of appellant's argument is that if the interpretation of the trial court is correct, section 8602 is unconstitutional because it is vague and uncertain. As the ensuing discussion will demonstrate, none of appellant's contentions have any merit and as a consequence the judgment below must be affirmed.

Statutory Interpretation: Since we are called upon to interpret section 8602, as a threshold matter we set out the basic rules relating to interpretation of statutes. As emphasized time and again, The fundamental principle of statutory interpretation is to ascertain the intent of the Legislature so as to effectuate the purpose of the law (People ex rel. Younger v. Superior Court, supra, 16 Cal.3d 30, 40, 127 Cal.Rptr. 122, 544 P.2d 1322; Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645, 335 P.2d 672). In determining the legislative intent, the court turns first to the words used in the statute (People v. Knowles (1950) 35 Cal.2d 175, 182, 217 P.2d 1). The words, however, must be read in context, keeping in mind the nature and obvious purpose of the statute where they appear (Tripp v. Swoap (1976) 17 Cal.3d 671, 679, 131 Cal.Rptr. 789, 552 P.2d 749; Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224), and the statutory language applied must be given such interpretation as will promote rather than defeat the objective of the law (Steilberg v. Lackner (1977) 69 Cal.App.3d 780, 785, 138 Cal.Rptr. 378; City of L. A. v. Pac. Tel. & Tel. Co. (1958) 164 Cal.App.2d 253, 256, 330 P.2d 888). Finally, In ascertaining the legislative intent, the courts should consider not only the words used, but should Also take into account other matters as well, such as The object in view, the evils to be remedied, The legislative history, public policy, And contemporaneous administrative construction (English v. County of Alameda (1977) 70 Cal.App.3d 226, 233-234, 138 Cal.Rptr. 634; Alford v. Pierno (1972) 27 Cal.App.3d 682, 688, 104 Cal.Rptr. 110).

When tested and analyzed in light of the foregoing principles, the record convincingly demonstrates that, prior to the 1973 amendment, section 8602 (formerly § 848) consistently provided that the length of any net meshes was to be measured by taking four meshes while they were simultaneously drawn closely together. ³ As explained at the trial, this method of taking four meshes piled on each other rather than one mesh at a time served the objective of preventing an excessive stretching of meshes which would distort their size and make their measurement arbitrary. As appears from the oral and documentary evidence received at the trial, the 1973 amendment introduced by Assembly Bill 574 was adopted solely for the purpose of providing measuring methods with respect to the knotless nets, and was not aimed at changing the existing system of measuring knotted nets. Thus Director Fullerton, who had testified before the legislative committee dealing with Assembly Bill 574, stated at the trial that the thrust of the 1973 amendment was to add a provision for the measurement of knotless nets and not to change the longstanding, established method of measuring knotted nets. ⁴ The analysis of the legislative counsel also confirms that the bill containing the amendment only updated "present law, necessitated by the fact that fishermen generally don't use knotted nets any more."

In addition to the aforestated legislative history, the contemporaneous construction given to the statute makes it also crystal clear that the 1973 amendment to section 8602 did not alter the basic rule that the meshes in both the knotted and knotless nets were to be measured by taking four meshes and piling them on top of each other. Thus, Captain Bradford testified that during his tenure in the department from 1951 through 1976, the agency's requirement was to measure four meshes while they were simultaneously drawn together. His testimony was reaffirmed by both Mr. Kaneen, Regional Manager of the Marine Resources Region, and Inspector Goodrich. Mr. Kaneen testified that since 1940, the department's policy was to measure four meshes while they were piled up on each other. This information was laid down in procedural guides, bulletins and department manuals sent to marine wardens in charge of the enforcement of the statute. Inspector Goodrich testified as to two department memos dated in 1974 and 1976 which had described the proper method of measuring mesh size under section 8602. Moreover, the inspector underlined that he had explained the department's measurement method and publicly demonstrated the technique to the members of the fishing industry. Finally, Warden Boettcher stated at trial that upon instructions received from Inspector Goodrich he had informed both the other wardens and the fishermen in the Monterey area (including appellant, who was present at the meeting) that the applicable method of measuring mesh size in nets remained the same, that is the department would measure four meshes while they were simultaneously drawn closely together. It is, of course, elementary that contemporaneous and practical construction of a statute by those who have a duty to carry it into effect is given great weight (F. T. C. v. Mandel Brothers (1959) 359 U.S. 385, 391, 79 S.Ct. 818, 3 L.Ed.2d 893; People v. McGee (1977) 19 Cal.3d 948, 961, 140 Cal.Rptr. 657, 568 P.2d 382).

Appellant's argument, that considering the clear and unambiguous language of the statute the legislative history and the contemporaneous administrative construction were inadmissible to prove legislative intent and the purpose of the statutory amendment, is ill-founded and must fail for two major reasons.

First, it is commonplace that a word is a symbol of thought and as such has no fixed or true objective meaning. The meaning of particular words or groups of words varies with the verbal context and the surrounding circumstances in which the words are used (Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 38, 69 Cal.Rptr. 561, 442 P.2d 641; Pearson v. State Social Welfare Board (1960) 54 Cal.2d 184, 195, 5 Cal.Rptr. 553, 353 P.2d 33). In line with these premises, the "plain meaning rule" advocated by appellant has been severely criticized by Sutherland, 2A Statutory Construction (4th ed. 1973), section 45.02, page 4: "This rule is deceptive, however, in that it implies that words have intrinsic meanings. . . . (A) word is merely a symbol which can be used to refer to different things. . . . It is impossible to determine the...