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District Court of Appeal, First District, Division 1, California.

CRESCI v. BROCK, Director of Department of Agriculture et al.

No. 14575.

Decided: December 20, 1950

Fred N. Howser, Atty. Gen., J. Albert Hutchinson and W. R. Augustine, Deputy Attys. Gen., Dion R. Holm, City Atty., John E. Barricklo, Deputy City Atty., San Francisco, for appellants. Jefferson E. Peyser, San Francisco, for respondents.

Defendants appeal from an order and preliminary injunction restraining the enforcement of section 12024.4 of the Business and Professions Code, added in 1949.

Questions Presented.

Primarily, there are three questions presented: (1) The scope of review of a preliminary injunction restraining the enforcement of a statute claimed to be unconstitutional; (2) whether the court abused its discretion; (3) may oral evidence be admitted on the hearing of an application for a preliminary injunction?


On the filing of the complaint, a temporary restraining order and order to show cause was issued. Defendants made return by demurrer, points and authorities, and affidavits of the Chief of the Division of Weights and Measures of the Department of Agriculture of the State of California and the County Sealer of Weights and Measures of the City and County of San Francisco. On the return date of the order to show cause, the matter was continued by stipulation to November 28, 1949, at which time the court denied defendants' motion for a nonsuit and to dismiss the temporary restraining order, and continued the order to show cause. It was heard on December 1 on the complaint, answer, affidavits, and on oral testimony and evidence offered by plaintiff and admitted over defendants' objections. It was then submitted and on December 20, the court granted the preliminary injunction restraining defendants from enforcing the provisions of the code section.


The gist of the complaint follows: Plaintiff for many years past has been and now is engaged in the business of selling fish and poultry at retail in San Francisco and brings the action on behalf of himself, other dealers similarly situated, and members of the Retail Poultry and Fish Dealers Association of San Francisco. The 1949 Legislature added section 12024.4 to the Business and Professions Code. This section requires that retailers selling poultry and fowl must sell at the ‘weight of the commodity when prepared and delivered in the manner as specified by the customer.’ It has long been the custom of plaintiff1 to purchase poultry2 in dressed form, that is, by their weight after being killed and plucked of feathers and to resell at retail in the same form. When requested by the customer, plaintiff customarily removes the entrails or dismembers the poultry and delivers it to the customer without redetermination of weight or price. The resale price is computed upon the weight in the dressed form in which it was purchased from the wholesaler, and thereby the retailer has been able to determine the resale price ‘with certainty, without speculation, and with due regard to competitive prices.’ Defendants threaten to enforce the act and to prosecute criminally plaintiff for any violation thereof, thereby preventing plaintiff from selling in the customary manner, but requiring him when selling ‘table dressed’ poultry, that is, poultry which the customer has requested be dismembered or that the entrails be removed, to weigh it in that form and to charge according to that weight. This would require plaintiff to change his customary method of doing business; the resale price would have to be on a speculative basis and without regard to cost, and would have to be a price which will cause a substantial loss of patronage and would seriously impair plaintiff's ability to meet the competition of other poultry sellers who are not subject to the provisions of the act and cause irreparable injury. It would result in higher prices to consumers. The act is unjust, arbitrary, oppressive, and unconstitutional for the foregoing reasons and because (1) it bears no reasonable relation to the public health, safety, morals or general welfare; (2) it discriminates between retailers of poultry and detailers of other foods, particularly of meat products. The act is void for uncertainty in certain specified particulars. These and other grounds of the alleged invalidity of the act will be discussed later, if necessary.

Scope of Review.

Plaintiff contends that on this appeal, our duty is merely to determine whether the trial court abused its discretion in temporarily restraining enforcement of ‘a new and oppressive statute’ and retaining the status quo until the issue of its validity can be tried on the merits, must as in any other application for injunction. Defendants contend that only if we hold the statute invalid can we uphold the action of the trial court, and therefore we must determine now the statute's constitutionality.

Neither contention is correct. Where the only contention is that the unconstitutionality appears on the face of the statute, then, upon review of a temporary injunction restraining its application, the sole question presented to the reviewing court would be whether or not the statute is unconstitutional. But where the claimed unconstitutionality is based upon allegations indicating that a person's ‘rights have been invaded by the actual or threatened application of the challenged law to him’,3 then the duty of the reviewing court is to determine if it appears that there is a rational basis for the challenge “* * * predicated upon the particular economic facts of a given trade or industry, which are outside the sphere of judicial notice * * *.”4 If there is such rational basis, then the only question left for determination is whether the trial court abused its discretion in holding the matter in status quo until the true facts are determined at a trial of the issues. “* * * With the notable expansion of the scope of governmental regulation, and the consequent assertion of violation of constitutional rights, it is increasingly important that when it becomes necessary for the Court to deal with the facts relating to particular commercial or industrial conditions, they should be presented concretely with appropriate determinations upon evidence, so that conclusions shall not be reached without adequate factual support.” Brock v. Superior Court, supra, 12 Cal.2d 605, at page 614, 86 P.2d 805, at page 809, quoting from Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 55 S.Ct. 187, 79 L.Ed. 281. ‘The court points out that in a suit to enjoin the enforcement of legislation where the complaint tenders issues of fact touching the question of constitutionality ‘The plaintiffs are entitled to the findings of a trial court upon those issues.’' French Art Cleaners v. State Board etc. Cleaners, 91 Cal.App.2d 890, 899, 206 P.2d 25, 30. As also said in the case last cited, 91 Cal.App.2d at page 896, 206 P.2d at page 28. ‘It does not necessarily follow, simply because the injunction issued, that the court entertained the conviction that the legislation was unconstitutional. It is to be assumed, in the absence of any record of the court's reasons, that it way issued, as preliminary injunctions usually are, merely to maintain the status quo until the final determination of the case.’ In this case plaintiff's main contention is that the act is unconstitutional in its proposed application as to him.

Application of Act.

In determining whether there is a rational basis for the claimed unconstitutional application of the act to plaintiff's business, it is necessary to consider whether the complaint states a cause of action in this behalf. It does so state. The complaint sets forth that to force plaintiff to deliver table dressed poultry at a weight and price to be determined at time of sale, would change without good reason the customary method of the business, would force unemployment, cause the customer to pay more for the commodity, place the plaintiff in unfair competition with meat products dealers as to whom no similar requirement exists. It is alleged that certain customers desire their poultry table dressed in their presence. The act would also cause unfair competition between plaintiff and the retailer who table dresses the poultry in the absence of the customer, selling to the customer the poultry already packaged. It also would result in covering up defects that would be discovered by the customer buying in the customary manner. The courts are not experts in the poultry business, and cannot take judicial notice of whether or not these are the facts.

Defendants contend that injunction cannot issue in this type of case as being one prohibited by section 526 of the Code of Civil Procedure which provides that an injunction cannot be granted ‘to prevent the execution of a public statute by officers of the law for the public benefit.’ Subd. 4. Section 3423 of the Civil Code is identical. Defendants also cite cases like Asiatic Club v. Biggy, 160 Cal. 713, 117 P. 912, and Sullivan v. San Francisco Gas etc. Co., 148 Cal. 368, 83 P. 156, 3 L.R.A., N.S., 401, to the effect that equity will not interfere to prevent officials from enforcing the law. This very contention was made in Brock v. Superior Court, supra, 12 Cal.2d 605, at pages 609–610, 86 P.2d 805, at page 807, and was answered by the court: ‘The petitioners place their principal reliance upon section 3423 of the Civil Code which provides that ‘an injunction cannot be granted * * * to prevent the execution of a public statute, by officers of the law, for the public benefit’. This section has been construed as a limitation upon the power of a court to restrain public officers from enforcing a valid law (Reclamation District No. 1500 v. Superior Court, 171 Cal. 672, 154 P. 845), but it has uniformly been held that one specially interested may enjoin the attempted execution of an unconstitutional statute. Bueneman v. City of Santa Barbara, 8 Cal.2d 405, 407, 65 P.2d 884, 109 A.L.R. 895; Jones v. City of Los Angeles, 211 Cal. 304, 295 P. 14; Wheeler v. Herbert, 152 Cal. 224, 92 P. 353; Schofield v. City of Los Angeles, 120 Cal.App. 240, 7 P.2d 1076. And although certain provisions of the law under which the petitioners in the present proceeding assumed to act have been unheld (Brock v. Superior Court, supra [9 Cal.2d 291, 71 P.2d 209, 114 A.L.R. 127]), a statute valid upon its face may be unconstitutionally applied. Yick Wo v. Hopkins, 118 U.S. 356, 373, 6 S.Ct. 1064, 30 L.Ed. 220. Therefore, if the complaint in the action brought by Forbes and his co-plaintiffs shows that the petitioners threatened to enforce an unconstitutional law against them, or that their acts in the attempted application of a valid law violated rights guaranteed to all citizens by either the federal or state Constitution, the superior court had jurisdiction to issue an injunction pending a hearing and decision upon the issues presented, and the petition for a writ of prohibition must be denied.'

The Statute.

Section 12024.4 provides: ‘It shall be unlawful for any retailer to sell or advertise for sale to the consumer any poultry, fowl, or rabbits in any manner other than live weight, dressed weight, or table dressed weight; provided, however, that this does not prevent the sale of baby chicks, turkey poults, started chicks, started poults, laying hens, or breeding stock by the head count.

“Live weight' shall mean the weight of poultry, fowl, or rabbits alive.

“Dressed weight' shall mean the weight of the poultry or fowl, after being killed, and plucked of feathers.

“Table dressed weight' shall mean the weight of poultry or fowl when completely dressed or dismembered for cooking.

“Dressed weight' and ‘table dressed weight’ of rabbit shall be synonymous, and shall mean the weight of the rabbit, after being killed, and skinned, and the head, feet, and entrails removed.

‘In each separate transaction the weight of the poultry, fowl, or rabbit, upon which the basis of settlement is made, shall be the weight of the commodity when prepared and delivered in the manner as specified by the customer.

‘Provided, however, that any commodity specified in this section need not be weighed at time of sale when the commodity is sold in the wrapper or container in which it was received, or into which it was packed, and on which appears the net weight of the commodity therein, as marked by the processor, packer, wholesaler, or jobber, and further providing that the name and address of the processor, packer, wholesaler, or jobber, shall be clearly and conspicuously stated in connection with the statement of net weight.’

Evidence at Hearing.

At the hearing, plaintiff relied upon the complaint as an affidavit and introduced the oral testimony of himself, one Nannizzi, a San Francisco retail poultry dealer, and one Vermillion, assistant field manager of the Retail Meat Dealers Association. It was stipulated that another, one Sicca, a retail poultry dealer and secretary of the San Francisco Retail Fish and Poultry Dealers Association, if called, would testify substantially as had Nannizzi.

Defendants filed affidavits of defendant Brenton, Chief of the Division of Weights and Measures of the Department of Agriculture of the State of California, and defendant Skinner, County Sealer of Weights and Measures of the City and County of San Francisco, which denied the material allegations of the complaint, and then set up that in their experience and that of the various officials of the several county sealers of weights and measures, there was great difficulty in obtaining conclusive legal evidence of violation of section 12024 of the Business and Professions Code (which makes it a misdemeanor to sell any commodity in less quantity than the dealer represents it to be) in connection with the sale of poultry and rabbits by weight, because when delivered to the purchaser by the vendor, they were in a different physical form than when selected by the purchaser and weighed by the vendor and that the enactment of section 12024.4 was absolutely necessary to cover the various situations involved in the sale of these commodities by weight.

Taking the complaint as an affidavit and the testimony of plaintiff's witnesses at face value, the evidence fails to show that the application of the act to plaintiff and his business is an invalid or unconstitutional one. True, the act will prevent plaintiff from conducting his business in the customary way. When his customers desire poultry cleaned or dismembered he will be able no longer to charge by the weight prior to such cleaning or dismembering, but the weight thereafter. Merely changing the customary way of doing business in itself does not make a law unconstitutional. If so, acts which require packaging of certain foods which were once sold in bulk would be illegal. Plaintiff and his witnesses testified that it would be impossible for them in advance to estimate the loss of weight caused by cleaning or dismembering poultry and hence they could not figure out the price to be charged on the finished product. While such statements were made, it is obvious they are not true. At the same time they were saying this, they testified that they bought fish ‘in the round,’ and after cleaning it and filleting it, had no difficulty in fixing a price at which to retail the finished product. True, they attempted to differentiate the poultry situation by pointing out that the fish were cleaned before being placed on sale, while poultry, in many instances, were cleaned and dismembered in the presence of the customer. Courts are not bound by statements which are obviously incorrect. To expect a court to believe that dealers cannot estimate the average loss of weight in cleaning or dismembering poultry, is to expect the court to blind itself to the facts of everyday business life.

Plaintiff's testimony to the effect that it would be impossible to estimate the shrinkage of poultry in changing it from ‘dressed weight’ to ‘table dressed weight’ as defined in the act, is patently incorrect. Moreover, the United States Department of Agriculture has prepared and distributed a table5 headed ‘Poultry: Approximate Shrinkages in Dressing and Eviscerating,’ which, among other things, gives the shrinkage of poultry from ‘dressed weight’ to ‘Ready-to-Cook’ (approximately the same as ‘table dressed’). Any variation in the particular fowl because of the type of dismemberment required by a customer from that in ‘ready to cook’ mentioned in the table would not offer much of an estimation problem. The loss of weight will, of course, vary with each fowl, but, as the testimony shows, this loss varies with each fish, and yet the dealers have no difficulty in averaging this loss and in making a price that will bring them a profit on the transaction. Actually, a study of the evidence shows that plaintiff's real objection to the act is that it requires the dealer to let the customer know the exact weight of the poultry he is getting. Under plaintiff's method, a customer is told that he is buying, for example, a three pound chicken, and that the price is 50 cents per pound. Then, at the customer's request, it is cleaned and dismembered. Assuming a 20 per cent loss of weight, the customer actually receives one-fifth less than three pounds, and is paying, not 50 cents per pound of chicken delivered, but 62–1/212 cents. In fact, one of the contentions of plaintiff that the act has an unconstitutional application is that if the customer learns that he is actually paying 62–1/212 cents per pound for the amount of fowl he actually receives, when heretofore he has believed that he was paying only 50 cents, he will no longer buy fowl but will buy meat. In other words, to require that a customer know the truth, makes the act unconstitutional.

The evidence fails to show any discrimination between poultry sellers and sellers of other foods, including meat products.

Other Contentions.

1. The act discriminates between retailers and wholesalers selling direct to consumers. There is no basis for this contention, for under the terms of the act, wholesalers selling to consumers would be retailing, and hence bound to comply with the act.

2. The act prohibits the sale of poultry which is neither ‘live,’ ‘dressed,’ nor ‘table dressed.’ If there is any other kind sold, there is no evidence given why the sale of poultry should not be so restricted.

3. It prohibits retailers from packaging poultry, marking the weight thereon and selling it without again weighing the package. No good reason is given why it should not be so weighed.

4. Broad general statements that enforcement of the act will result in fraud practiced on the consumer without facts to support it are of no value. The evidence fails to disclose how poultry cleaned and dismembered in the absence of the customer will result in the sale of unwholesome poultry. As a matter of fact, it appears that most of the table dressed poultry that is sold today is cleaned and dismembered in the absence of the customer.

5. The contention that the act itself must set forth the public policy reason for its adoption is not supported by any authority.

Alleged Uncertainty.

Plaintiff contends that the act is vague, uncertain and indefinite because of the use of certain terms. Such terms as ‘retailer’, ‘consumer,’ ‘basis of settlement,’ ‘delivered,’ have such well known meaning that a claim that they are indefinite, vague or uncertain is completely without basis. While the evidence shows that the words ‘table dressed weight’ constitute a term not known to the trade, it is clearly defined in the act and there is cited no authority for the proposition that a Legislature may not create a term, unknown to a particular trade, provided, of course, it is defined so that the trade may what it means.

Policy of Legislature.

Practically all of the contentions made by plaintiff go to the question of policy in the adoption of the act. We cannot say that an act which requires a dealer to weigh his commodity in the presence of the buyer is an illegal assertion of the police power. As to the policy, ‘In the first place, this court has neither the power nor the duty to determine the wisdom of any economic policy; that function rests solely with the Legislature. * * * it is no part of the duty of this court to determine whether the policy embodied in the statute is wise or unwise. It is primarily a legislative and not a judicial function to determine economic policy. The power of the court is limited to determining whether the subject of the legislation is within the state's power, and, if so, to determine whether the means adopted to accomplish the result are reasonably designed for that purpose, and have a real and substantial relation to the objects sought to be attained.’ Max Factor & Co. v. Kunsman, 5 Cal.2d 446, 454, 455, 456, 55 P.2d 177, 181, affirmed, see Pep Boys, Manny, Moe & Jack, of California v. Pyroil Sales Co., 299 U.S. 198, 57 S.Ct. 147, 81 L.Ed. 122.

Plaintiff contends that his right of due process of law has been violated by the act. He does not, however, point out any respect in which it has been so violated nor cite any cases in support of his contention. He further contends that his right of equal protection of the law has been violated. The evidence fails to show that this is so in any respect. The fact that his method of doing 90 per cent of his poultry business (he testified that 10 per cent of this business concerned the sale of ‘dressed’ poultry as to which the law makes no change; and he also has quite a fish business) will have to be changed, does not make the act illegal. Plaintiff's contentions in this respect are answered in People v. Hoshor, 92 Cal.App.2d 250, 256, 206 P.2d 882, 886: ‘The contention that the right of due process of law and of equal protection of the law are violated by the act as applied has been completely answered by People v. Eiseman, 78 Cal.App. 223, 249, 248 P. 716, 727. The court there held that while it is true that the act burdens honest business, such burden is for the very good and only reason that ‘under its forms dishonest business may not be done.’ * * * Conditions must be imposed and their performance enforced notwithstanding inconveniences caused to honest men. For sovereignty to abandon its watch care of society and to confess its inability to guard honest men against the plunderers because, forsooth, an occasional good citizen might be inconvenienced, would be to signify its utter helplessness to protect the very men who constitute the state.'

The act in our case obviously was enacted for the protection of the consumer, so that he might know the exact price he is paying for the price of the commodity delivered. We can find nothing in this requirement that is either illegal or unconstitutional. The fact that the consumer who might have thought that heretofore he was getting his poultry cheaper than was the fact is now going to be made aware of the true price, and that such knowledge might cause him to buy cheaper products or might add some burden to plaintiff's business, deprives plaintiff neither of due process or the equal protection of the law. Applicable here is the language from Merrick v. N. W. Halsey & Co., 242 U.S. 568, 37 S.Ct. 227, 61 L.Ed. 498, quoted in People v. Eiseman, 78 Cal.App. 223, 249, 248 P. 716, 727: “We think the statute under review is within the power of the state. It burdens honest business, it is true, but burdens it only that under its forms dishonest business may not be done. This manifestly cannot be accomplished by mere declarations; there must be conditions imposed and provision made for their performance. Expense may thereby be caused and inconvenience, but to arrest the power of the state by such considerations would make it impotent to discharge its functions.' In conformity with the law as announced in the cases cited it must be held here that the act in question is not unconstitutional.'

A somewhat analogous situation appears in Willapoint Oysters v. Ewing, 9 Cir., 174 F.2d 676. There the Federal Security Agency had prescribed standards of identity and a standard of fill of containers for canned oysters. The standard of fill required that the ‘drained weight of all species of oysters packed in a can should be not less than 59 per cent of the can's water capacity. Petitioner there contended that it was impossible, because of the particular ‘blanching’ process used by it in preparing oysters, to place in the can the required weight, without ‘twisting, tearing, breaking, and browning, the product, thereby destroying the good will and consumer acceptance it had built up over the years, and that the consumer could well be protected by a statement on the label of the correct weight. In upholding the regulation the court said, 174 F.2d at page 688: ‘The justification for the Administrator's order is his belief that any oyster canning method which ultimately results in a container but one-half full of oysters is unfair to the consumer, and that a mere statement on the label of the ounce content of drained oysters is not sufficiently curative. In short he feels that the consumer is entitled to receive more oyster meat ane less liquid.’

While it is true that the Legislature has seen fit not to require the weight of meat and fish to be determined after the removal of the inedible portions, such fact does not affect the validity of an act requiring such determination as to poultry and rabbits. There is no evidence that fish is ever sold to the customer as a whole and thereafter the innards are removed. The universal custom is to sell the fish cleaned. To some extent fat and bones are removed from meat after it is weighed for the customer. Nevertheless, there is no showing that the situation as to fish and meat is comparable. Assuming, however, that the situation is comparable, it is not absolutely necessary that the state attack all abuses at one time. ‘A State may ‘direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses, and it may do so none the less that the forbidden act does not differ in kind from those that are allowed.’ * * * Lawmaking is essentially empirical and tentative, and in adjudication as in legislation the Constitution does not forbid ‘cautious advance, step by step, and the distrust of generalities.’' Hughes v. Superior Court, 339 U.S. 460, 70 S.Ct. 718, 723.

The fact that other sections of the Business and Professions Code §§ 12023, 12024, 12024.5 and 12025 deal with selling at false weights, etc., makes section 12024.4 no less ‘an honest weight statute’ nor does it deprive the Legislature of the right to require the weighing to be in the presence of the customer. The evidence of defendants shows that such a requirement is necessary, not only to enable enforcement officers to be better able to check on violations, but to protect the customers. It is not, as claimed by plaintiff, an act whose sole purpose is for the convenience of the officials in obtaining conclusive evidence of violations. But even if it were, such fact would not make it illegal. In cases where, as was testified here, detection of false weighing is almost impossible, the requirement that the commodity as delivered be weighed in the presence of the customer in order to make detection possible, is not illegal. Skaggs v. City of Oakland, 6 Cal.2d 222, 57 P.2d 478, and Justesen's Food Stores, Inc., v. City of Tulare, 12 Cal.2d 324, 84 P.2d 140, and similar cases, are not in point. There it was held that the regulations under consideration were enacted merely for the convenience of inspecting officials. In the Skaggs case, deliveries of bakery products were prohibited at night, on Sundays and certain holidays. In the Justesen's case stores selling food were prohibited from being open during hours when the municipal meat and food inspector was not on duty. Both regulations were attempted to be supported on the grounds that it was inconvenient for officials to inspect after hours. In our case, it is not a matter of the convenience of officials, but the difficulty of enforcing the honest weight statutes, not merely at the convenience of the officials, but at all.

It is not necessary that defendants show that plaintiff and other retailers have been actually engaged in false weighing. If it appears, and it does here, that there is an opportunity for fraud, it is for the Legislature to determine the policy of providing for the protection of the customer against that probability. Even if the reasonableness of the statute is debatable, the courts may not interfere. Lockard v. City of Los Angeles, 33 Cal.2d 453, 202 P.2d 38, 7 A.L.R.2d 990. It should require no discussion to show that a statute which ensures that a person may know the exact weight of the commodity he is receiving is one which comes within the power of the Legislature to enact laws to protect the public health, safety, morals, comfort, convenience or general welfare.

Our case is distinguishable from French Art Cleaners v. State Board etc. Cleaners, supra, 91 Cal.App.2d 890, 206


1.  Whenever ‘plaintiff’ is referred to in connection with the custom or manner of doing business it shall include other poultry retailers.

2.  Whenever the word ‘poultry’ is used it will include also ‘fowl.’

3.  Brock v. Superior Court, 12 Cal.2d 605, 614, 86 P.2d 805.

4.  Id., 12 Cal.2d at page 614, 86 P.2d at page 809.

5.  This court takes judicial notice of such an official table. Code Civ.Proc. § 1875, subd. 3.

BRAY, Justice.