AMERICAN FRUIT GROWERS INC ET AL v. PARKER DIRECTOR OF AGRICULTURE ET AL

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District Court of Appeal, Second District, Division 3, California.

AMERICAN FRUIT GROWERS, INC., ET AL. v. PARKER, DIRECTOR OF AGRICULTURE, ET AL.

Civ. 13315.

Decided: September 19, 1942

Earl Warren, Atty. Gen., Walter L. Bowers, Deputy Atty. Gen., and Ivan G. McDaniel and George C. Lyon, both of Los Angeles, for appellants. G. V. Weikert, of Los Angeles, for respondents.

Plaintiffs are engaged in packing, handling, shipping, marketing, and distributing citrus fruits, including oranges, and in most cases grapefruit also, in intrastate commerce in this state. Some of them are also growers of these fruits. They brought this action to restrain the Director of Agriculture of this state, and others acting under him, from enforcing against them a license issued by him to regulate the handling of oranges and grapefruit in intrastate commerce. A preliminary injunction to that effect was granted and defendants appeal from the order granting it.

In 1935 the legislature passed an act self–denominated “The California Agricultural Adjustment Act of 1935” Stats.1935, Chap. 307, p. 1032, Deering's Gen.Laws, 1935 Supp.Act 146. At the same session this act was amended in some respects. Stats.1935, Chap. 416, p. 1468. This act authorized the Director of Agriculture, in order to carry out the purposes of the act, to issue licenses to persons engaged in producing, marketing, processing, packing, shipping, handling or distributing any agricultural product or commodity. Acting under this statute, the Director, in 1935, issued a license “regulating the handling in intra–state commerce of oranges and grapefruit grown in the State of California,” and applying to all persons engaged in said industries, and in 1936 he amended this license. This is the license, enforcement of which was restrained by the temporary injunction above mentioned.

In 1937 the legislature undertook to amend the above mentioned statute and to rename it, designating it as “The California Agricultural Products Marketing Act of 1937”. Stats.1937, Chap. 910, p. 2501, Deering's Gen.Laws 1937, Act 146. In his brief plaintiff's counsel said of this act: “while the 1937 act is nominally a mere amendment of the 1935 act, it is actually a complete revision thereof.” Upon this statement was based an argument that the 1937 act completely repealed that of 1935. To our minds the statement above quoted, taken with the fact that two sections of the 1935 act left unchanged by that of 1937 were not set forth in the latter act, suggested an entirely different question; that is, whether the 1937 act was in violation of section 24 of article IV of the Constitution of California and hence void because the act revised by it was not reenacted and published at length as revised. We therefore restored the case to the calendar for argument of this question. After considering that argument, we conclude that the question must be given an affirmative answer.

Section 24 of Article IV of the Constitution, just referred to, provides: “No law shall be revised or amended by reference to its title; but in such case the Act revised or section amended shall be reenacted and published at length as revised or amended;” These provisions of the Constitution “are mandatory and prohibitory”, Cal.Const. § 22, art. I, and an act which violates them is therefore wholly void. Lewis v. Dunne, 1901, 134 Cal. 291, 293, 66 P. 478, 55 L.R.A. 833, 86 Am.St.Rep. 257.

When the Legislature desires to alter the provisions of an existing act, it may proceed in either one of several modes to do so. First, it may simply pass a new statute covering the same subject, embodying therein such parts of the former act as it wishes to retain and omitting or altering other parts and inserting new provisions, as it may desire, but making no reference to the former act. When it has so proceeded the result may be, and usually is, a repeal of the former act by implication, but the new statute is not subject to the constitutional provision now under consideration, relating to amending and revising statutes. Matter of Coburn, 1913, 165 Cal. 202, 211, 131 P. 352; Evans v. Superior Court, 1932, 215 Cal. 58, 65, 66, 8 P.2d 467. Second, the Legislature may expressly amend specified sections of a sectionized act, leaving the other sections to stand unchanged. In this case, the constitution requires only that the sections amended be set forth in full as amended. It is obvious that, as far as the mechanics of this process are concerned, it might extend to one, or any greater number, or all of the sections of the former act. But the constitution, by the provision now under consideration, compels a line to be drawn, so that at some stage of the process this second mode of action must be regarded as passing over into the third, that is, revision of the former act, and when it reaches that status, the whole of the former act as altered, including the sections left unchanged, must be set forth in full. If the later act should change all the sections of the former act, compliance with the requirements for an amending act would, at the same time, satisfy those for a revising act, and if this case were the only one to which the provisions regarding revisions were intended to apply, those provisions would be entirely useless. So to limit their application would be contrary to the established rule of constitutional construction that, “The legal intendment is that each and every clause has been inserted for some useful purpose, and when rightly understood may have some practical operation.” Hammond v. McDonald, 1942, 49 Cal.App.2d 671, 683, 122 P.2d 332, 339. Consequently we must conclude that the line between mere amendments and a revision is to be so drawn as to include within the category of revisions, at least in some cases, an act changing less than all of the sections of a former act. This is the conclusion stated in Beach v. Von Detten, 1903, 139 Cal. 462, 464, 73 P. 187.

It may, of course, be difficult at times to ascertain the precise location of that line, so as to determine on which side of it a given statute altering a former act lies. Clearly, the mere fact that the Legislature has designated a statute as an amending act, while entitled to consideration, cannot be conclusive as to the nature of such statute. The presumption is always strongly in favor of the validity of legislative action, but if a statute is plainly and unmistakably a revision of a former act, the Legislature cannot escape the effect of this constitutional provision by labelling it otherwise.

This constitutional provision regarding revisory statutes has received attention from the courts. In Lewis v. Dunne, 1901, 134 Cal. 291, 292, 66 P. 478, 479, 55 L.R.A. 833, 86 Am.St.Rep. 257, the Supreme Court held the 1901 act amending the Code of Civil Procedure to be void on two grounds; first, it was in effect a revision and the act revised was not published at length; and second, a mere reference to the Code of Civil Procedure did not state a single subject as a title. On the first point the court said: “And when we look at the body of the act we see clearly that it is a revision. It covers 150 pages of the published statutes of 1901; it amends over 400 sections; it repeals nearly 100 sections; it changes the numbers of other sections; it adds a great many new sections, and it contains this clause: ‘Certain title and chapter headings of the said Code of Civil Procedure are hereby inserted, changed and amended, as hereinafter provided;’ and then follow several pages of insertions, changes, and amendments of such headings. If this is not a revision, then it would be difficult to state what would constitute a revision.” We note that the Code of Civil Procedure then had sections numbered up to 2104, but probably it actually contained a somewhat smaller number of sections, by reason of omissions of numbers not completely offset by some duplications.

In Beach v. Von Detten, supra, 1903, 139 Cal. 462, 464, 73 P. 187, 188, a statute which amended 58 sections of the County Government Act but left 176 sections untouched was held not to be a revision within this constitutional provision. Examination of this statute (Stats.1901, p. 685) shows that of the sections amended, one section determined the population of the several counties of the state, and one classified the counties according to population, both of which had to be done under the constitution as it then stood (§ 5, art. XI) in order to enable the Legislature to regulate the compensation of officers in the several counties, fifty–three sections related solely to the compensation of officers in the various counties, one section dealt with eligibility to office, one with the number of officers of a township, and one with certain fiscal reports to be made by the auditor, treasurer and board of supervisors. The court held this amending act not to be a revision, saying: “Nor does it make any difference that 58 sections of the original act of 234 sections were thus amended. * * * The remaining 176 sections of the act of 1897 were not changed in any way, nor was the general plan of the original act changed, nor the matter rearranged. * * * But in this case, where the title refers plainly to the original act, and the general plan of the original act is not changed, but three–fourths of the original sections remain the same, with the same numbers, it is evident that the amendatory act was not intended to be, nor was it, a revision, within the meaning of the Constitution.” In the course of its discussion the court quoted from another case the statement that “As long as there is one section of the original act untouched there is no revision” and said of it: “The above statement is evidently too broad, because it is apparent that an act consisting of many sections might be changed in many respects, the subjects treated of differently, the sections differently arranged and differently numbered, and yet retain one or more complete sections of the original act. In such case the act would be a revision.”

In People v. Oates, 1904, 142 Cal. 12, 13, 75 P. 337, 338, the court held that an act amending one hundred and eight sections of the Penal Code (which then had sections numbered up to 1614, but probably a slightly less number of sections, by reason of some omissions of numbers), repealing two sections and adding one new section was “in no sense a revision of the entire Code,” distinguishing Lewis v. Dunne, supra, 1901, 134 Cal. 291, 66 P. 478, 55 L.R.A. 833, 86 Am.St.Rep. 257, on the ground that there “the attempt made was a revision of the Code of Civil Procedure.”

Defendant cites Evans v. Superior Court, 1932, 215 Cal. 58, 8 P.2d 467, and argues that it overrules Lewis v. Dunne, supra. It is true, the court did say there, of Lewis v. Dunne, “We are not inclined to adopt or to follow the rather narrow interpretation applied by the court in that case,” (215 Cal. 62, 8 P.2d 468); but it appears, from a reading of the whole opinion, that this statement was directed at the part of the decision in Lewis v. Dunne which related to the title of the act. On the matter of revision, no disagreement with Lewis v. Dunne was stated. Evans v. Superior Court involved the Probate Code, which repealed many former statutory provisions and enacted provisions on the same subject, many identical with, and some different from, those repealed. Of it the court said, “the Probate Code does not expressly attempt either to revise or to amend any act by reference to its title” (215 Cal. 65, 8 P.2d 470), and for that reason concluded that the constitutional provision now under consideration did not apply to the code, even though it was inconsistent with existing statutes and effected a repeal of them by implication.

We conclude that a proper test of the character of a statute as being a revision of a former act, within the meaning of section 24 of article IV of our Constitution is that above quoted from Beach v. Von Detten, supra, 1903, 139 Cal. 462, at page 464, 73 P. 187, at page 188, “an act consisting of many sections might be changed in many respects, the subjects treated of differently, the sections differently arranged and differently numbered, and yet retain one or more complete sections of the original act. In such case the act would be a revision.” Applying this test to the act of 1937 now under consideration, we have no doubt that it does constitute a revision of the act of 1935. Plaintiff's counsel says that the 1937 act “declares new and different policies and purposes, sets up new and different standards, and establishes entirely different methods of procedure,” and this appears to be so. The Supreme Court, in Brock v. Superior Court, 1939, 12 Cal.2d 605, 617, 86 P.2d 805, 810, after pointing out important differences between these two acts, said: “It seems apparent that any license issued under the 1935 act would not conform to the requirements and measure up to the standards fixed by the 1937 act.” The question now before us, however, was not presented or considered in that case. Considering the subject in more detail, we find that the 1935 act, as amended in that year, had 26 sections. The 1937 act amended 20 of these, repealed 4, allowed 2 to stand unchanged, and added one new section. The sections not changed were not set forth at all in the 1937 act. Besides changing the name of the act, the amendment eliminated the provision for licenses, and in lieu thereof authorized the Director of Agriculture to issue “marketing orders” to persons engaged in handling “any agricultural commodity” in intrastate commerce. One of the declared purposes of the 1935 act was to “reestablish prices to farmers and growers at a level that will give agricultural commodities a purchasing power with respect to articles that farmers buy equivalent to the purchasing power of agricultural commodities during the period of August, 1909–July, 1914.” § 2, subd. (1). This does not appear in the amended act, but the latter, in one of its new provisions, states that one of the ends to be accomplished is, “to supply the requirements of such commodity and to provide an adequate standard of living to the farm operator and his family.” § 5, subd. 6. The declared purposes of the two statutes differ in other material respects. The amendments not only changed the substance of the original act in many important respects, a few of which we have stated, but entirely rearranged its provisions, so that when the same or nearly the same provision is in both acts, it appears in a different section in the amended act. Repeating here the words of the Supreme Court in Lewis v. Dunne, supra, 1901, 134 Cal. 291, 292, 66 P. 478, 479, 55 L.R.A. 833, 86 Am.St.Rep. 257, “If this is not a revision, then it would be difficult to state what would constitute a revision.” The Constitution therefore required that the whole act, as revised, be reenacted at length. This was not done. The two sections omitted from the revising act do not appear to be of great consequence to the general purpose of the act, but the Constitution states no exceptions to its rule, on this or any other account, and we can make none. The case must therefore be decided on the act of 1935, as amended in that year, without regard to the purported amendments of 1937, which must be held void.

The act of 1935 is valid in its general scope and purposes. Brock v. Superior Court, 1937, 9 Cal.2d 291, 71 P.2d 209, 114 A.L.R. 127. Section 6a of this act as amended in 1935 authorized the Director of Agriculture to issue licenses to persons engaged intrastate in the producing, marketing etc. “of any agricultural product or commodity or products thereof.” It also provided that “No such license shall be so issued unless whenever one such person is licensed the director at the same time shall subject all persons engaged in the same specific and naturally, inherently and intrinsically distinctive agricultural business, trade or industry to the same identical license provisions.” Deering's Gen.Laws, 1935 Supp., Act 146; Stats. 1935, p. 1036. The license issued here, which attempts to deal with the growing and handling of both grapefruit and oranges as a single industry, is attacked and the preliminary injunction is defended on the ground that these acts constitute more than one industry. We regard the decision in Brock v. Superior Court, supra, 1939, 12 Cal.2d 605, 612, 86 P.2d 805, 808, as sufficient authority for upholding the injunction appealed from. In that case the identical license now before us was in question. A preliminary injunction against its enforcement had been obtained on a complaint which alleged that the license purporting to regulate the handling of both oranges and grapefruit covered more than one industry and was for that reason void, under the act of 1935, when issued. The court referred to the provisions we have above quoted from section 6a of that act and said: “This language, as a matter of law, does not authorize the Director of Agriculture to regulate the marketing of all agricultural products by one general license fixing a total quota for them divisible ratably between shippers without regard to the difference in the nature of the crop, cost of production, time of harvest, facilities for shipment, amount of demand, price obtainable or other factors which make the conditions under which one agricultural product is marketed distinctly different from those which are applicable to another. The allegations of the plaintiffs' complaint tender as an issue of fact the question whether the marketing of desert grapefruit is an agricultural trade or industry distinctly different from that of marketing other products, and, also, whether the producers of grapefruit are being discriminated against to the profit and advantage of the orange growers and their property taken without due process of law. The plaintiffs are entitled to the findings of a trial court upon those issues.”

The application for the preliminary injunction here was submitted on the verified complaint and a number of affidavits and counter affidavits. The complaint alleges that the license attempts to regulate more than one distinctly different industry, by allegations as apt and adequate for that purpose as those in the Brock case last cited, 12 Cal.2d 605, 612, 86 P.2d 805. The allegations of paragraph XXVIII of the complaint here are: “That oranges, grapefruit, lemons, tangerines, and limes are all citrus fruits, but each of them is a distinct, different, and separate commodity, and they are produced, handled and sold in intrastate commerce in California in competition with one another; that the growing, handling and marketing of each of said commodities is a specific and naturally, inherently and intrinsically distinctive agricultural business, trade or industry, even though two or more of said commodities are sometimes produced and handled by the same grower and shipper, in that distinctly different growing and maturing periods and harvesting seasons, production costs, packing and handling methods, requirements and costs, facilities for shipment, consumer demand, markets, and price structures and price histories exist and apply to each of said commodities, and each of them is subject to distinctly different producing, handling and marketing problems. * * *” There was no answer and we find in the affidavits no substantial contradiction of the allegations of the complaint just quoted. An affidavit by a witness who was not a party to the action stated that the affiant admitted a part of these allegations and as to the rest “affiant denies each and every allegation of fact and controverts each and every conclusion of law contained in said Paragraph XXVIII.” Which of the statements in the paragraph referred to were deemed by the affiant to be allegations of fact and which conclusions of law does not appear. The trial court was not required to give any weight to such statements in an affidavit, nor are we.

The last cited Brock case, 12 Cal.2d 605, 86 P.2d 805, differs from this in one respect; that is, it was a proceeding in prohibition and the question was merely one of the power of the trial court to order the preliminary injunction, whereas we have here an appeal from the order, which raises a further question as to the propriety of the order under the circumstances appearing. But the granting or denial of a preliminary injunction on a verified complaint, together with oral testimony or affidavits, even though the evidence with respect to the absolute right therefor may be conflicting, rests in the sound discretion of the trial court, and the order may not be interfered with on appeal, except for an abuse of discretion. People v. Black's Food Store, 1940, 16 Cal.2d 59, 61, 105 P.2d 361; Brock v. Superior Court, 1938, 11 Cal.2d 682, 688, 81 P.2d 931. We see no abuse of discretion in the present case.

It appears from affidavits filed by the defendant that since August 14, 1936, there has been no actual regulation of the grapefruit industry under this license and that in some respects there has never been any actual regulation of that industry under it, and considerable stress is laid on these facts in argument by defendants. We cannot see, however, that they have any bearing on the questions presented to us. If the license was invalid because attempting to regulate two distinct industries, as plaintiffs claim, that invalidity inhered in it at and from the time of its issuance and would not be removed by failure of those in authority to enforce it against all whom it purported to regulate. This being so present attempts of defendants to act under it may be enjoined.

The order appealed from is affirmed.

SHAW, Justice pro tem.

SCHAUER, P. J., and SHINN, J., concur.