Van Camp Sea Food Co. v. Department of Natural Resources

• Decision Date: 18 January 1929
• Citation: 30 F.2d 111
• Parties: VAN CAMP SEA FOOD CO., Inc., et al. v. DEPARTMENT OF NATURAL RESOURCES OF STATE OF CALIFORNIA et al.
• Court: U.S. District Court — Southern District of California

30 F.2d 111 (1929)

VAN CAMP SEA FOOD CO., Inc., et al. v. DEPARTMENT OF NATURAL RESOURCES OF STATE OF CALIFORNIA et al.

District Court, S. D. California, S. D.

January 18, 1929.

John L. Dyer, of Los Angeles, Cal., and M. A. Thomas and B. D. Marx Greene, both of San Francisco, Cal., for plaintiffs.

U. S. Webb, Atty Gen., John L. Flynn, Deputy Atty. Gen., and Eugene D. Bennett and Ralph W. Scott, both of San Francisco, Cal., for defendants.

Before RUDKIN, Circuit Judge, and JAMES and HENNING, District Judges.

RUDKIN, Circuit Judge.

The plaintiff Van Camp Sea Food Company is a California corporation, engaged in the business of canning sardines and manufacturing fish meal and fish oil from sardines, at its plant in the city of Los Angeles. The plaintiff Globe Grain & Milling Company is a California corporation, operating a refining plant near the city of Los Angeles, and is engaged in the manufacture of a food product, sold under the trade-mark "Westola," from fish oil purchased from the sea food company, combined with other vegetable oils. The present suit was instituted by the two corporations against the department of natural resources of the state of California, and a number of state officers, to restrain the execution of a state statute limiting and restricting the use of sardines in reduction plants within the state. The statute, enacted in 1919, with later amendments, confers jurisdiction on the state fish and game commission to regulate and control the fish industry of the state, including fish canneries and fish reduction plants, or any plant where fishery products are manufactured. Section 5 of the act provides that no person, firm, or corporation shall suffer or cause any preventable deterioration or waste of any fish caught or taken in the waters of the state, or brought into the state, and that no person shall use any fish, except fish offal, in a reduction plant, except of the species, in the manner, and to the amount allowed by the act. It is then provided that it shall be lawful for a packer of sardines to take and use in a reduction plant, in each calendar month, sardines to the amount of 25 per cent. of the monthly capacity of the packing plant, such capacity to be determined by the fish and game commission after a hearing. Section 6 declares that the use of any fish, or any part thereof, contrary to the provisions of the act, shall constitute a nuisance, and provides for its abatement by suit. Statutes of 1925, p. 595.

In order to prevent waste of sardines and fishery products, regulations adopted by the fish and game commission provide that every packer of sardines will be required to produce, out of each ton of sardines received during a calendar month, not less than a certain number of cases and cans of sardines, the number varying according to the size and capacity of the cans. The plaintiffs complain of the statutory prohibition against the use of more than 25 per cent. of the sardines received during any calendar month in the reduction plant, and of the regulation prescribing the number of cans and cases that must be produced from each ton of fish, earnestly insisting that they violate the Commerce Clause (article 1, § 8, cl. 3) and the Fourteenth Amendment to the Constitution of the United States.

The power of the states to protect game and fish within their borders by appropriate legislation is now too firmly established to admit of further controversy. Geer v. Connecticut, 161 U. S. 519, 16 S. Ct. 600, 40 L. Ed. 793; Ward v. Race Horse, 163 U. S. 504, 16 S. Ct. 1076, 41 L. Ed. 244; Silz v. Hesterberg, 211 U. S. 31, 29 S. Ct. 10, 53 L. Ed. 75; Patsone v. Pennsylvania, 232 U. S. 138, 34 S. Ct. 281, 58 L. Ed. 539; Kennedy v. Becker, 241 U. S. 556, 36 S. Ct. 705, 60 L. Ed. 1166; Carey v. South Dakota, 250 U. S. 118, 39 S. Ct. 403, 63 L. Ed. 886; La Coste v. Dept. of Conservation, 263 U. S. 545, 44 S. Ct. 186, 68 L. Ed. 437.

In the case last cited, the court said: "The wild animals within its borders are, so far as capable of ownership, owned by the state in its sovereign capacity for the common benefit of all of its people. Because of such ownership, and in the exercise of its police power the state may regulate and control the taking, subsequent use and property rights that may be acquired therein."

Indeed, the power of the state to prohibit the shipment of game lawfully taken within its borders to points without the state, and to prohibit the possession of game within the state, when shipped from points without the state, has repeatedly been recognized by the Supreme Court. And on the argument of this case it was practically conceded that, for a period of about ten years, the decisions to which we have referred were deemed ample warrant for the legislation and regulations now in question, but it is earnestly insisted that the rule established by these decisions was overthrown and annulled by the recent decision of the Supreme Court in Foster-Fountain Packing Co. v. Haydel, decided October 13, 1928, 49 S. Ct. 1, 73 L. Ed. ___. With this contention we are unable to agree. The legislation of the state of Louisiana there involved prohibited the shipment of unshelled shrimp to points without the state, and the court found that this...