296 P. 281 | Cal. | 1931
The plaintiffs commenced this action on behalf of themselves and of the Eureka Fishermen's Union, a voluntary association of commercial fishermen, against the defendants, who are members and officers of the California Fish and Game Commission, to restrain the latter from interfering with or prosecuting criminal or other actions against the plaintiffs and their fellow members of the association on account of the transportation or possession by the plaintiffs and their associates, of fresh salmon caught on the high seas and in the course of being transported over and across certain fish and game districts, wherein the taking or possession of fresh salmon was at the time prohibited by state law. Upon the filing of a verified complaint seeking the foregoing relief the Superior Court of Humboldt County issued a temporary restraining order, and also an order to show cause why a preliminary injunction should not issue. Upon the return day of the latter order and after a hearing thereon the trial court issued a preliminary injunction granting the relief sought pendentelite. It is from such order that the defendants have taken and are prosecuting this appeal.
It is the appellants' first contention that the plaintiffs were not in any event entitled to an injunction for the reason that under the provisions of section 526 of the Code of Civil Procedure "an injunction cannot be granted . . . to prevent the execution of a public statute by officers of the law for the public benefit". The difficulty with this contention is that it assumes the existence of a fact which is the very fact in controversy in the present proceeding, and which is as to whether or not there is an existing public statute covering the situation presented by the plaintiffs' complaint and which the defendants, as officers of the law, were attempting or were threatening to enforce at the time the preliminary injunction was sought and obtained by the plaintiffs. The authorities cited by the appellants in support of their foregoing contention have relation to statutory offenses which the officers of the law referred to therein are engaged in enforcing, and which the persons against whom such enforcement is sought are seeking to evade prosecution upon the showing either that they are not guilty of such statutory offense or that the law defining the same does not apply to such a person or class of persons. In the present case, however, *502 it is the respondents' contention that there is no statute which renders unlawful the acts of the plaintiffs in seeking to transport the salmon which they have lawfully taken upon the high seas, and which at the time of their attempted or threatened prosecution they were engaged in transporting to a place wherein they were lawfully entitled to possess and sell fish thus lawfully taken. It is to this question, therefore, that we must direct our attention in considering this case upon the merits.
[1] We do not deem it necessary to restate the law which has been heretofore consistently decided by this court touching the right of the state in the exercise of its police power to regulate and control the taking, possession and sale or other transportation of fish and game. It will suffice for the purposes of this cause to cite but a few of the leading cases declaring this uniform rule: Paladini v. Superior Court,
We thus arrive at the particular facts of this case with which the trial court undertook to deal in the issuance of its preliminary injunction. The plaintiffs and their fellow members of the Eureka Fishermen's Union have been engaged for some time in conducting fishing operations out of the city and harbor of Eureka in Humboldt County, in the course of which they were wont to fish for salmon in the waters of the Pacific Ocean at points exceeding three miles west of the coast line of the state of California and which points are also to the westward of certain fish and game districts which have been created by the legislature of *503 the state of California and which lie along the coast line of said state and within the boundaries of the several coast counties thereof which extend from Humboldt to Santa Cruz. The several fish and game districts immediately concerned in this litigation are numbered districts six, seven, eight, nine, ten and also district one and one-half, which latter district embraces or includes the city of Eureka.
The particular statute defining these several districts was adopted in 1917 (Stats. 1917, p. 1058) and was from time to time amended down to the year 1927, when it took on the form and content existing at the time of the commencement of the present action. (Stats. 1927, p. 1128.) In the meantime those several sections of the Penal Code relating to violations of the laws for the preservation of fish and game were being amended and enacted until they also took on the form in which they stood when this action was begun. An examination of these statutes and of the said provisions of the Penal Code disclose that the times within which salmon may be taken, possessed and sold within these several districts varies, so that at certain times it is lawful to take, possess or offer for sale salmon in one of said districts when at the same time it is unlawful so to do in another one or more thereof. It is out of this state of the law that the present controversy has arisen, since, as asserted in the plaintiff's complaint, the plaintiffs having lawfully engaged in fishing for salmon upon the high seas at points exceeding three miles west of the coast line of the state of California, were undertaking to bring their catch, thus lawfully taken, into the state of California and over and across fish and game districts six, seven, eight, nine and ten thereof, for the purpose of possession and sale thereof in the city of Eureka, which lies within district number one and one-half thereof, and in which at said time the possession and sale of salmon was not unlawful. It was asserted by plaintiffs in their complaint and found to be the fact by the trial court as the basis for the making of its said order that the defendants herein, as members and officers of said fish and game commission, were attempting and threatening to prevent the plaintiffs from so transporting the salmon, thus by them lawfully taken, across such of said fish and game districts in which the possession and sale of salmon caught or taken therein was at the time unlawful, in order to reach their *504 destination at the city of Eureka, wherein they might lawfully possess, offer for sale and sell their said fish.
[2] The vital question involved in this situation is that presented by the interpretation to be placed upon the provisions of subdivision 3 of section
[3] By the foregoing course of reasoning we are brought to consider the final and precise contention of the appellants, which is that notwithstanding the provisions of subdivision 3 of section
We therefore conclude that at the time of the commencement of the present action there was no existing statute which prohibited or rendered unlawful the possession or transportation of salmon lawfully taken or caught upon the high seas across any of the fish and game districts referred to in said action in order that the same might be carried to the city of Eureka, wherein such salmon might at said time be lawfully possessed and sold. It follows that the trial court was not in error in the issuance of the preliminary injunction herein. This conclusion renders unnecessary a discussion of the question as to whether the plaintiffs *507 herein have brought themselves within the category of those engaged in interstate commerce.
The judgment is affirmed.
Seawell, J., Shenk, J., Waste, C.J., Curtis, J., Langdon, J., and Preston, J., concurred.
Rehearing denied.