People v. K. Sakai Co.

• Court: California Court of Appeals
• Citation: 128 Cal.Rptr. 536,56 Cal.App.3d 531
• Decision Date: 25 March 1976
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. K. SAKAI CO., a California Corporation, d/b/a Uoki-K Sakai, et al., Defendants and Appellants. Civ. 37226.

Page 536

128 Cal.Rptr. 536 56 Cal.App.3d 531 PEOPLE of the State of California, Plaintiff and Respondent,
v.
K. SAKAI CO., a California Corporation, d/b/a Uoki-K Sakai, et al., Defendants and Appellants. Civ. 37226. Court of Appeal, First District, Division 3, California. March 25, 1976.
Hearing Denied May 19, 1976.

[56 Cal.App.3d 533]

Page 537

Wayne M. Collins, San Francisco, for defendants-appellants.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg, Jamie Jacobs-May, Deputy Attys. Gen., San Francisco, for plaintiff-respondent.

GOOD, ^* Associate Justice.

The District Attorney of San Francisco filed an action on behalf of the public under Civil Code section 3369 against the corporation owner and operators of a grocery store in a predominantly Japanese quarter of San Francisco to enjoin the sale of canned whale meat in violation of Penal Code sections 653o and 653r. Section

Page 538

653o, originally [56 Cal.App.3d 534] enacted in 1970 and operative December 1, 1970, made it unlawful to import into the state for commercial purposes, or to possess with intent to sell, or to sell the dead body or any part or product thereof of named endangered species of animals and amphibians. It did not then apply to a product imported prior to December 1, 1970, and did not include whales in the named species. In 1971 the said section was amended to include whales, and section 653r was added. The new section made it a misdemeanor to possess with intent to sell, or to sell 'after June 1, 1972, the dead body, or any part or product thereof, of any fish, bird, amphibian, reptile, or mammal specified in Section 653o or 653p.' Such possession or sale of whales (or other species named), regardless of the date of importation, became a misdemeanor.

In December of 1970, the Oriental Trading Company of Los Angeles imported canned whale meat into the United States. This was not unlawful at the time. On May 14, 1973, the Sakais purchased several cases thereof. In response to a consumer's complaint, San Francisco police inspectors Ahlgrim and Simms went to the Sakai grocery on November 2, 1973, saw some of the cans on display and purchased one. On November 14, an assistant district attorney wrote to the Sakais to notify them of the complaint and inform them of the illegality of possession or sale of whale meat. A few weeks later, Simms returned and did not find the whale meat where it had been displayed on his previous visit. He asked an employee if he had such for sale. The employee could not locate any but elicited the aid of a fellow employee who produced a box, and Simms bought two cans therefrom. The Sakais claimed that after they received the district attorney's letter of November 14, they removed the cans from their display shelves and placed them in a carton with a note that the contents were not to be sold--a note that was never found. On December 14, Simms returned with a search warrant and seized 10 cases of whale meat from a basement storeroom and another carton containing cans thereof that was found on the floor of an aisle in the grocery store.

The case was tried without a jury. Judgment was entered on February 20, 1975, wherein the Sakais were enjoined from selling or possessing with intent to sell whale meat or other food or products in violation of Penal Code sections 653o--653r. ¹ The court assessed a civil penalty of [56 Cal.App.3d 535] $2,000 (Civ.Code, § 3370.1). This appeal by the Sakais (appellants, Post) is upon an agreed statement (Cal.Rules of Court, rule 6(a)) in which the prosecution (respondent, Post) joined. The following issue is raised: Are Penal Code sections 653o and 653r unconstitutional under the facts of this case either (a) as an unreasonable exercise of the police power or (b) as a deprivation of property without due process?

Appellants contend that said sections, insofar as they proscribe the sale of products Lawfully imported, constitute an unreasonable exercise of the police power. For the following reasons we do not agree.

The police power has long been described as the inherent power of a body politic to enact and enforce laws for the promotion of the general welfare. (Cf. 5 Witkin, Summary of Cal.Law (8th ed. 1974) Constitutional Law, § 435, p. 3734, and cases there cited.) It has been said that an 'attempt to define its reach or trace its outer limits is fruitless.' (Berman

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v. Parker (1954) 348 U.S. 26, 32, 75 S.Ct. 98, 102, 99 L.Ed. 27.) The scope of the police power changes with changing social and economic conditions. It is 'not a circumscribed prerogative, ² but is elastic and . . . capable of expansion to meet existing conditions of modern life, and thereby keep pace with the social, economic, moral, and intellectual evolution of the human race. In brief, 'there is nothing known to the law that keeps more in step with human progress than does the exercise of this power' (citation) and that power 'may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare.' (Citations.)' (Miller v. Board of Public Works (1925) 195 Cal. 477, 485,...