This is a suit brought to enjoin appellees, officers of the state of California, from enforcing certain provisions of the State Fish and Game Code (Statutes 1933, pp. 394, 484 et seq.) alleged to contravene the commerce clause, and the due process and equal protection clauses of the Fourteenth Amendment, of the Federal Constitution. The court below sustained a motion to dismiss the bill, on the ground that it did not state facts sufficient to constitute a cause of action or to entitle appellant to any relief by injunction or otherwise. 8 F.Supp. 67. We are of opinion that this decree must be affirmed.
Appellant is a California corporation engaged in the business of manufacturing, from the meat of sardines, fish flour for human consumption. the sardines are caught by fishermen upon the high seas beyond the three-mile limit to which the jurisdiction of the state extends, sold to appellant, and brought into the state and there reduced to fish flour at appellant's reduction plants. The Fish flour is made with the expectation of selling and shipping it in interstate and foreign commerce; and it is so sold and shipped and is used as food in the United States and foreign countries. Sardines are a migratory fish found in great numbers in the Pacific Ocean beyond the three-mile limit as well as within that limit. So far as known, they spawn upon the open seas. In the process of reducing the fish, appellant uses a portion for producing flour for human consumption, the remainder being converted into a meal used for chicken feed, and into fertilizer, fish oil, and other nonedible substances.
Sardines caught in the same way are also purchased by packers, who clean, cook, and can or preserve them for human food, using in that process only a part of the fish and utilizing the remainder for reduction into nonedible products.
The provisions of the Fish and Game Code which appellees threaten to enforce against appellant and those necessary to be considered in that connection are copied in the margin. The bill alleges that appellees will prevent appellant from manufacturing fish flour in its reduction plants while at the same time permitting packers to use sardines, taken from the waters of the state or those outside, in their packing plants.
First. There is nothing in the state act to suggest a purpose to interfere with interstate commerce. It in no way limits or regulates or attempts to limit or regulate the movement of the sardines from outside into the state, or the movement of the manufactured product from the state to the outside. The act regulates only the manufacture within the state. Its direct operation, intended and actual, is wholly local. Whether the product is consumed within the borders of the state or shipped outside in interstate or foreign commerce are matters with which the act is not concerned. The plain purpose of the measure simply is to conserve for food the fish found within the waters of the state. Over these fish, and over state wild game generally, the state has supreme control. Sardines taken from waters within the jurisdiction of the state and those taken from without are, of course, indistinguishable; and to the extent that the act deals with the use or treatment of fish brought into the state from the outside, its legal justification rests upon the ground that it operates as a shield against the covert depletion of the local supply, and thus tends to effectuate the policy of the law by rendering evasion of it less easy. People of State of New York ex rel. Silz v. Hesterberg, 211 U.S. 31, 39, 40, 29 S.Ct. 10, 53 L.Ed. 75.
If the enforcement of the act affects interstate or foreign commerce, that result is purely incidental, indirect, and beyond the purposes of the legislation. The provisions of the act assailed are well within the police power of the state, as frequently decided by this and other courts. It is unnecessary to do more than refer to People of State of New York ex rel. Silz v. Hesterberg, supra, 211 U.S. 31, 39 et seq., 29 S.Ct. 10, 53 L.Ed. 75, and Van Camp Sea Food Co. v. Department of Natural Resources (D.C.) 30 F.(2d) 111, where the decisions are collected.