Appellate Division, Superior Court, San Diego

[Crim. A. No. 5754.

Jan. 17, 1947.

Rehearing denied, Feb. 4, 1947.]

#### THE PEOPLE, Respondent, v. MARINE PRODUCTS COMPANY (a Corporation) et al., Appellants.

*930Edgar B. Hervey and Henry P. Walker for Appellants.

Thomas Whelan, District Attorney, James Don Keller, District Attorney, and Roland DePere, Deputy District Attorney, for Respondent.

THE COURT.

Section 786.5 of the Fish and Game Code of the State of California as amended in 1941 is as follows:

> “ It is unlawful to sell, expose for sale, offer to sell, barter, trade, or have in possession any spiny lobster which has been cooked or otherwise prepared for human consumption outside of the State of California,- This section shall not apply to any canned lobster or other shellfish prepared under the supervision of the Department of Agriculture or the corresponding department of any other State or nation.”

In the present action the defendants Marine Products Company, a corporation, and L. Small, were charged with the violation of the above quoted section 786.5 in that on or about March 5, 1946, in San Diego Township in the County of San Diego, State of California, they “did then and there wilfully and unlawfully sell, expose for sale, offer to sell, barter, trade and have in their possession certain fresh, cooked, spiny lobsters which had been cooked and otherwise prepared for human consumption outside of the State of California, to wit, in the Republic of Mexico.” Originally, the complaint contained certain further allegations which were, however, stricken out on the plaintiff’s motion without objection from the defendants.

Upon their arraignment the defendants moved to dismiss the complaint for failure to state a public offense, in that, *931according to their contention, the said statutory provision is unconstitutional and void. This motion having been denied, they pleaded “not guilty” and after various continuances the trial proceeded. It was stipulated that on March 5, 1946, the defendants in San Diego Township, County of San Diego, State of California, wilfully had in their possession certain fresh, cooked, spiny lobsters which had been cooked and otherwise prepared for human consumption outside of the State of California, to wit, in the Republic of Mexico. The defendants offered to prove that the said spiny lobsters were cooked and prepared under the supervision of a department of the government of Mexico corresponding to the Department of Agriculture of the United States. The court ruled this offer of proof immaterial, and, both parties having rested, found the defendants guilty and fined them $25 each, from which judgment the defendants’ appeal is prosecuted.

Section 782 of the Fish and Game Code establishes an “open season” for the taking of spiny lobster extending from October first of each calendar year to March fifteenth of the following calendar year. Section 786 permits spiny lobster to be brought into the state from Mexico during the open season. The gist of the complaint, therefore, is that the spiny lobster in the defendants’ possession, not being canned, had been cooked and otherwise prepared for human consumption not in California but in Mexico.

The sole question before us is whether or not the statute involved is constitutional.

Section 8 of article I of the Constitution of the United States empowers the Congress to “regulate commerce with foreign nations and among the several states and with the Indian tribes.”

In pursuance of this power, the Federal Food, Drug and Cosmetic Act recognizes seafoods as proper subjects of commerce (21 U.S.C., § 372a) and in 19 U.S.C.A., section 1201, it is provided that:

> “On and after June 18, 1930, except as otherwise specially provided for in this chapter, the articles mentioned in the following paragraphs, when imported into the United States or into any of its possessions (except the Philippine Islands,the Virgin Islands, American Samoa, and the Island of Guam), shall be exempt from duty:

> “. . . (Para. 1761) Shrimps, lobsters, and other shellfish, fresh or frozen (whether or not packed in ice), or pre*932pared or preserved in any manner (including pastes and sauces),' and not specially provided for.”

As was said in *Oregon-Washington Railroad & Navigation Co.*v. *State of Washington,*270 U.S. 87, 93 [46 S.Ct. 279, 70 L.Ed. 482] :

> “In the absence of any action taken by Congress on the subject matter, it is well settled that a state in the exercise of its police power may establish quarantines against human beings or animals or plants, the coming in of which may expose the inhabitants or the stock or the trees, plants or growing crops to disease, injury or destruction thereby, and this in spite of the fact that such quarantines necessarily affect interstate commerce.” (Citing *Gibbons*v. *Ogden,*9 Wheat. 1, 203, 205 [6 L.Ed. 23], and *Minnesota Rate Cases,*230 U.S. 352 [33 S.Ct. 729, 57 L.Ed. 1511]).

> “Such laws undoubtedly operate upon interstate and foreign commerce. They could not be effective otherwise. They cannot, of course, be made the cover for discriminations and arbitrary enactments, having no reasonable relation to health *(Hannibal and St. Joseph Railroad Co.*v. *Husen,*95 U.S. 465, 472, 473 [24 L.Ed. 527]); but the power of the state to take steps to prevent the introduction or spread of disease, although interstate and foreign commerce are involved (subject to the paramount authority of Congress if it decides to assume control), is beyond question.” *(Minnesota Rate Cases, supra,*p. 406, quoted in *Oregon-Washington Railroad and Navigation Co.*v. *State of Washington, supra,*p. 95, and citing *Morgan’s etc. Steamship Co.*v. *Louisiana,*118 U.S. 455 [6 St.Ct. 1114, 30 L.Ed. 237] ; *Missouri, Kansas and Texas Railway Co.*v. *Haber,*169 U.S. 613 [18 S.Ct. 488, 42 L.Ed. 878] ; *Louisiana*v. *Texas,*176 U.S. 1 [20 S.Ct. 251, 44 L.Ed. 347]; *Rasmussen*v. *Idaho,*181 U.S. 198 [21 S. Ct. 594, 45 L.Ed. 820] ; *Compagnie Francaise, etc.*v. *Board of Health,*186 U.S. 380 [22 S.Ct. 811, 46 L.Ed. 1209] ; *Reid*v. *Colorado,*187 U.S. 137, 138 [23 S.Ct. 92, 47 L.Ed. 108] ; *Asbell*v. *Kansas,*209 U.S. 251 [28 S.Ct. 485, 52 L.Ed. 778]).”

Similarly, it is well settled that, in the absence of any action taken by Congress on the subject matter, it is within the competency of the states to forbid the exportation of game taken within their territorial limits on the theory that they are in their sovereign capacities the owners of such game and entitled to confine its use to their inhabitants *(Geer*v. *Con*
      *933
      *necticut,*161 U.S. 519 [16 S.Ct. 600, 40 L.Ed. 793] ; *In re Florence,*107 Cal.App.. 607 [290 P. 652]); or to forbid the possession within their territory or the importation into their territory of game animals, birds or fish under conditions which would further the evasion of their own seasonal or other restrictions on the talcing of such game within their territorial limits, by making it easy for evaders to claim that game possessed by them and actually taken illegally within the territorial limits of the state was taken legally outside its territorial limits and imported. *(Silz*v. *Hesterberg,*211 U.S. 31 [29 S.Ct. 10, 53 L.Ed. 75] ; *Ex parte Maier,*103 Cal. 476 [37 P. 402, 42 Am.St.Rep. 129]; *Johnson*v. *Gentry,*220 Cal. 231 [30 P.2d 400]).

In such circumstances, and subject to the paramount right of Congress to regulate interstate and foreign commerce, the circumstance that the state legislation affects such commerce is not deemed any reason for holding it invalid. This, however, is, in general, true only where the federal government has' not, through appropriate legislation, occupied the field, for where it has not only undertaken to deal with the subject but enacted legislation broad enough in scope to cover it, such legislation in ordinary cases under the federal Constitution necessarily supersedes all right on the part of the state government to deal with the matter at all.

There is, to be sure, some distinction as concerns the respective spheres of the federal and state governments, between state regulations for purposes of sanitation and state regulations intended to conserve the local game supply. While both may affect interstate and foreign commerce, quarantine regulations are not based on any theory that the commodity against which the quarantine is declared is not legitimately an article of commerce, but are based merely upon the proposition that though generally an article of commerce there is some reason affecting the health of the community or the immunity of its inhabitants, livestock or agricultural products from disease which demands that the article involved be excluded. In the case of game, however, an additional principle is involved, namely that creatures *ferae naturae,*because they are the property of the state, may only become the subject of commerce by its consent. Where, however, as in the case of spiny lobster, the article involved is recognized by the state itself, as a legitimate object of commerce, as spiny lobster is *934specifically so recognized by section 786 of the Pish and Game Code, this argument as applied to the respective spheres of the state and federal governments is of strictly limited application *(Foster etc. Packing Co.*v. *Haydel,*278 U.S. 1 [49 S.Ct. 1, 73 L.Ed. 147]). It may still be available where the regulation involved has to do with the manner of taking the game within the territorial limits of the state *(In re Florence, supra,*p. 614), but it can in such circumstances hardly be stretched to the point of upholding, in conflict with federal law, a state enactment forbidding or regulating the importation of the game involved.

It is, in fact, here urged that the provisions of section 786.5 under attack are no bona fide attempt, either on the one hand to prevent infringement of the laws of California having to do with the taking of spiny lobster within its limits or prescribing the seasonal limits for taking spiny lobster or the sizes of such lobster that may be taken, or on the other hand, any bona fide attempt to protect the healthfulness of spiny lobster meat for human consumption; but are mere attempts to erect a barrier against cooked but uneanned spiny lobster for the financial benefit of those engaged in the lobster industry in California as against those who cook spiny lobster elsewhere, and that the statute, therefore, is not really an effort to exercise any power left to the state by the federal Constitution, but a mere attempt to protect California industry against competition from elsewhere, and therefore no mere incidental interference with interstate and foreign commerce but a bald usurpation by the state of power exclusively vested in Congress, and as such, void under such authorities as *Baldwin*v. *G. A. F. Seelig, Inc.,*294 U.S. 511 [55 S.Ct. 497, 79 L.Ed. 1032], Such a proposition, under the terms of the statute, is unquestionably arguable; and it may be urged with some show of logic that the statute does not on its face appear to be a legitimate police regulation at all but a mere arbitrary interference with the liberty of the individual of the type involved in such cases as *In re Lyons,*27 Cal.App.2d 182 [80 P.2d 745], (but see *Witt*v. *Klimm,*97 Cal.App. 131 [274 P. 1039].) The presumption of validity attaches, however, to an act of the Legislature purporting to have been enacted in pursuance of the police power, and, therefore, if there is any tenable theory upon which the legislation can be held to further any legitimate concern of the state, it must, as against that species of attack, be upheld.

*935Whether “spiny lobster,” however, is or is not included properly within the designation of “lobster” it is certainly shellfish, and the federal statute quoted provides for the importation both of lobster specifically and of shellfish generally “fresh or frozen” or “prepared or preserved in any manner (including pastes or sauces).”

It appears to us, then, that in this instance the field has been fully occupied by congressional enactment and therefore that, under the commerce clause of the federal Constitution, state legislation on the subject is excluded, and consequently that we are spared the need for entering into any extensive analysis of section 786.5 for the purpose of discovering whether, had not federal legislation covered the ground, it could be maintained as a legitimate exercise of the authority of the state and only incidentally affecting state or foreign commerce. Regardless of any such inquiry and because Congress has fully covered the field, we must hold that the statute, as applied to the instant case, is inoperative.

One other contention made for the plaintiff should be noticed. Counsel call our attention to the fact that an application was made to the District Court of Appeal for the Fourth District for a writ of prohibition forbidding the municipal court to enter upon the trial of the case at bar on the ground that the statute involved was invalid and invested it with no jurisdiction to proceed, and that such application was denied without the rendition of any opinion; also that an application for hearing of the matter thereupon made to the Supreme Court was also denied by that court without an opinion. It is claimed as a result that the validity of the statute attacked is res adjudicata. There is no substance in the contention. Neither the proceeding in the District Court of Appeal nor the refusal of the Supreme Court to review it were adverted to at the actual trial before the municipal court, nor do they form any part of the record before us. Even if we are entitled to take notice of them upon the present appeal, however, these proceedings are wholly inconclusive as respects the question now before us. The writ of prohibition may have been denied for the mere reason that the appellate and Supreme Courts did not consider it necessary to anticipate the determination of the trial court upon the validity of the statute and saw no exigency justifying their interposition.

The judgment is reversed.

*936OPINION ON PETITION FOB EEHEABING

THE COURT.

On the petition for rehearing onr attention is directed to the Act of Congress commonly known as the Lacey Act, approved May 25, 1900, entitled “An Act To enlarge the powers of the Department of Agriculture, prohibit the transportation by interstate commerce of game killed in violation of local laws, and for other purposes” (31 Stats, at L., p. 187 et seq.).

While it is not the usual practice to consider, on application for rehearing, points not previously urged, we are probably justified in doing so when, as here, the validity of a state statute is involved. Moreover, on further consideration we think it proper to pursue certain inquiries which in our original opinion we had not for the purposes of this case deemed necessary. The act referred to has been recast, and, in its present form, appears as section 701 of title XVI and sections 391 to 395, both inclusive, of title XVIII, United States Code. Certain, though not all of the functions originally invested by the act in the Department of Agriculture have now been transferred to the Department of the Interior.

Said section 701 of title XVI recites that:

> “The object and purpose of this section and sections 391-393, 394 and 395 of Title XVIII, is to aid in the restoration of such” (game and wild) “birds in those parts of the United States adapted thereto where the same have become scarce or extinct, and also to regulate the introduction of American or foreign birds or animals in locations where they have not heretofore existed.”

These statutory provisions are, as we understand the contention, relied on by the prosecution as evincing the purpose on the part of Congress of leaving to the states, in the exercise of their police powers, the regulation of the possession of all game imported from outside their limits notwithstanding that some such game as, for example, lobsters and shellfish generally, are, as noted in our original opinion, expressly recognized by federal statute as a legitimate subject of commerce, and spiny lobster specifically so by section 786 of the California Fish and Game Code.

In *Gibbons*v. *Ogden,*9 Wheat. (U.S.), 1, 200 [6 L.Ed. 23], Chief Justice Marshall defined the issues there involved by saying that:

> *937“The sole question is, can a state regulate commerce with foreign nations and among the states, while Congress is regulating it?”

And his answer was, No. It was, however, in that case recognized that the states might legitimately pass and enforce reasonable inspection laws affecting imports, notwithstanding that commerce as such was at the same time being regulated by Congress.

The court said (p. 203):

> “But the inspection laws are said to be regulations of commerce, and are certainly recognized in the constitution as being passed in the exercise of a power remaining with the states.

> “That inspection laws may have a remote and considerable influence on commerce will not be denied; but that a power to regulate commerce is the source from which the right to pass them is derived, cannot be admitted. The object of inspection laws is to improve the quality of articles produced by the labor of a country; to fit them for exportation; or it may be, for domestic use. They act upon the subject before it becomes an article of foreign commerce, or of commerce among the states, and prepare it for that purpose. They form a portion of that immense mass of legislation, which embraces everything within the territory of a state, not surrendered to a general government; all of which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike-roads, ferries, etc., are component parts of this mass.

> “No direct general power over these objects is granted to congress; and, consequently, they remain subject to state legislation.”

In other words, the power to regulate commerce among the states and with foreign nations emanates from the express grant in the federal Constitution, whereas the power to pass and enforce inspection laws is referable to the reserved powers of the states, The court recognized that Congress in regulating interstate commerce, and the state in passing laws on “subjects acknowledged to be within its control” and with a view to those subjects, might adopt measures of substantially the same character, but noted that in such event, while the one which Congress might adopt would derive its authority *938from the Constitution, the one adopted by the state would not derive its authority from any particular granted power but rather from the residual power of the state, and went on to say:

> “All experience shows that the same measures, or measures scarcely distinguishable from each other, may flow from distinct powers; but this does not prove that the powers themselves are identical.”

It was further noted that the measures adopted respectively by the federal and state governments, in pursuance of these distinct powers might be harmonious with each other, but that where conflicting or mutually destructive, that of the state must give way, because of the provision of the federal Constitution making it and statutes enacted under its authority the supreme law of the land. In *Brown*v. *Maryland,*12 Wheat. (U.S.) 419, 446 [6 L.Ed. 678], Chief Justice Marshall again asked:

> “What, then, is the just extent of a power to regulate commerce with foreign nations, and among the several States?”

He answered:

> "This question was considered in the case of *Gibbons*v. *Ogden,*9 Wheat. 1 [6 L.Ed. 23], in which it was declared to be complete in itself, and to acknowledge no limitations other than are prescribed by the constitution. The power is coextensive with the subject on which it acts, and cannot be stopped at the external boundary of a State, but must enter its interior.”

As said in *Schollenberger*v. *Pennsylvania,*171 U.S. 1, p. 12 [18 S.Ct. 757, 43 L.Ed. 49]:

> “The general rule to be deduced from the decisions of this court is that a lawful article of commerce cannot be wholly excluded from importation into a State from another State where it was manufactured or grown. A State has power to regulate the introduction of any article, including a food product, so as to insure purity of the article imported, but such police power does not include the total exclusion even of an article of food.

> “In *Minnesota*v. *Barber,*136 U.S. 313 [10 S.Ct. 862, 34 L.Ed. 455], it was held that an inspection law relating to an article of food was not a rightful exercise of the police power of the State if the inspection prescribed were of such a character or if it were burdened with such conditions as would wholly prevent the introduction of the sound article from *939other States. This was held in relation to the slaughter of animals whose meat was to be sold as food in the State passing the so-called inspection law. The principle was affirmed in *Brimmer*v. *Rebman,*138 U.S. 78 [11 S.Ct. 213, 34 L.Ed. 862], and in *Scott*v. *Donald,*165 U.S. 58, 97 [17 S.Ct. 265, 41 L.Ed. 632].”

These observations would be applicable *a fortiori*where the interference by the state was not merely with interstate but also foreign commerce.

It is said in an article on the subject in 53 Harvard Law Review (pp. 1185-6):

> “One focal point of. danger to national trade, inviting the extended use of federal powers, is created by state enactment of food inspection laws. Although the necessity of state action to preserve the health of its citizens has led the Supreme Court to take a liberal view of the state power to inspect products coming from other states or foreign countries, some limitations have been imposed. The state may not levy an inspection tax on the introduction of extra-state goods which discriminates against those goods because of their origin.” (Citing *Sale*v. *Bimco Trading, Inc.,*306 U.S. 375 [59 S.Ct. 526, 83 L.Ed. 771]; *Voight*v. *Wright,*141 U.S. 62 [11 S.Ct. .855, 35 L.Ed. 638]; and *Brimmer*v. *Rebman,*138 U.S. 78 [11 S.Ct. 213, 34 L.Ed. 862].) “Nor may it draw its inspection laws so that it is physically impossible for an extra-state producer to meet local requirements.” (Citing *Minnesota*v. *Barber, supra,*and *Foster etc. Packing Co.*v. *Haydel, supra,*referred to in our original opinion.)

The question, then, with which we have to deal in the case at bar is whether there is or is not any real conflict between the recognition of lobsters and shellfish generally as legitimate articles of commerce and the inhibitions attempted by section 786.5 of the California Fish and Game Code, and it seems to us that an inhibition directed against the importation of a commodity so recognized as a legitimate article of commerce merely because, when imported, it is cooked exhibits such a conflict with the policy of Congress as expressed in paragraph 1761, section 1201, title XIX, United States *,y*Code, that it cannot stand unless some ground can be found. ' for resolving the conflict. As we saw, the claim is now made and it is that claim which we are at this point considering, that Congress itself has thrown wide the door for the type of legislation here involved by the Lacey Act as now revamped *940and in force. The claim that an intention to leave the door open for such state legislation as is here involved can be elicited from the above cited provisions of titles XVI and XVIII of the United States Code is presumably based on the language of section 395 of the latter which reads as follows:

> “Dead Bodies of Game Animals ob Game ob Song Birds, Subject to Laws of State. All dead bodies, or parts thereof, of any foreign game animals, or game or song birds, the importation of which is prohibited, or the dead bodies, or parts thereof, of any wild game animals, or game or song birds transported into any State or Territory, or remaining therein for use, consumption, sale, or storage therein, shall upon arrival in such State or Territory be subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers, *to the same extent and in the same manner as though such “animals or birds had been produced in such State or Territory,*and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.” (Emphasis added.) .

Even if the expression “game animals,” as used in this enactment, is to be taken to include shellfish, such as spiny lobster, which is at least doubtful, it seems to us that the above emphasized language “to the same extent and in the same manner as though such animals or birds had been produced in such State or Territory, ’ ’ is enough not only to negative any such claim but to indicate the contrary.

It is true that there are other grounds than the purity of an article, as a food product, on which state legislation regulating its admission may be allowed, such for example, in the case of game, as the protection of domestic game, though, as noted in our original opinion, when the state recognizes game of a particular kind as a permissible article of commerce it thereby disables itself from wholly excluding it.

But we think it clear that section 786.5 of the California Fish and Game Code was not designed for the protection of local spiny lobster. It has no connection with our seasonal restrictions on taking them. It purports by its terms to apply even to spiny lobster, if cooked and uncanned, imported during what is in California the open season. If, however, it be claimed that spiny lobster when cooked cannot be satisfactorily measured and, therefore, that to allow the possession here of *941cooked but uncanned spiny lobster brought from elsewhere would impede the enforcement of local laws against the taking of spiny lobster of either larger or smaller sizes than those here allowed, the obvious answer is that the same argument would be applicable to the possession here of such spiny lobster cooked in California, and therefore that the exclusion of the product when cooked elsewhere is no aid in enforcing our regulations as to the size of such lobster that may be taken. Accordingly, no question of power reserved to the state to protect its own game is, in our opinion, here involved.

The legislation under attack must be sustained, therefore, if it can be sustained at all, as an exercise of the police power of the state in aid of sanitation, but in our opinion it cannot be so sustained. Spiny lobster cannot be used for human consumption unless it is cooked. It is true that section 785 of the Fish and Game Code undertakes to make it unlawful to pickle, can, or otherwise preserve any spiny lobster, or to sell any spiny lobster meat not in the shell. Since, however, as just observed, spiny lobster in order to be used as human food at all must be cooked, it is apparent that it could not have been the legislative intent by section 785 to forbid its being cooked in California. We therefore have a bald distinction in section 786.5 between the possession in California of spiny lobster cooked here and the possession in California of spiny lobster cooked elsewhere. It is obvious that spiny lobster is not intrinsically any more wholesome because cooked in California rather than somewhere else. If, as in the ease of canned lobster, section 786.5 of our Fish and Game Code had forbidden possession or sale of uncanned, cooked lobster imported into California, unless cooked “under the supervision of the Department of Agriculture or other corresponding department of any other state or nation,” an entirely different question would be presented. So, also, would a different question be presented if the State of California had set up, within its borders, some system of its own for supervising the cooking of spiny lobster, to make sure that lobster long dead or otherwise unwholesome were not cooked and had then forbidden lobster to be imported in a ready cooked condition because not cooked under California inspection. That would be a case somewhat similar to *Witt*v. *Klimm,*97 Cal.App. 131 [274 P. 1039], referred to in our original opinion. But that is not this case. Here, the State of Cali*942fornia, having instituted no supervision of its own of the cooking of spiny lobster here, and having provided no means of ascertaining that spiny lobster are here cooked under sanitary conditions, undertakes baldly to say that spiny lobster shall not be possessed here if cooked elsewhere, whatever supervision may have been exercised over the article cooked or the cooking process elsewhere.

In our view such arbitrary interference on the part of the state with the importation of spiny lobster is in conflict with the recognition by Congress of seafoods as legitimate subjects of interstate commerce and cannot be upheld.

The petition for rehearing is denied.