I concur upon a narrow ground. A statute that under older and outmoded conditions may have stood the test of constitutionality may succumb to the impact of a new technology. As the majority opinion points out, a statute must bear a substantial relation to that objective which it seeks to effect; if it fails to do so, it cannot stand. *114In the instant ease the desired end of the ordinance, the protection of the public health, may now be so unrelated to the alleged need for nocturnal inspection of meat markets that it must fail. The lack of such inspection may have currently become so tangential that it cannot affect the public health and, indeed, be quite irrelevant to that avowed end. If the record supported such a conclusion, the ordinance could not be sustained. I am in doubt that this record does so; I therefore concur.
In view of modern refrigeration and conditions of sanitation in meat markets, does the claim that night inspections are requisite to the preservation of the public health become untenable ? Is such a contention a device to prevent competition through the opening of markets at night, and merely a means to corral the service to a daytime operation for covert economic reasons that do not appear on the face of the ordinance ? Is the public being deprived of the opportunity of purchase of meat at night upon an archaic assertion of the protection of the public health ? These are troubling questions, and the record here does not supply the answers.
The record specifically does not evince a showing that present marketing mechanics in the form of refrigeration and packaging are so general and so effective that nighttime inspection is no longer necessary. While we may, as the majority opinion states, take judicial notice of improvements in the packaging of the meat and the refrigeration of the shops, we cannot take judicial notice of the extent of such changes. The record does not clearly and specifically show the nature and use of improved technology or the impact of it, if any, upon the need for night inspection.
In passing upon the constitutionality of this ordinance we must indulge “[ejvery presumption ... in favor of the reasonableness of the law and its validity.” (Justesen’s Food Stores v. City of Tulare (1941) 43 Cal.App.2d 616, 621 [111 P.2d 424].) We cannot inject into the record such facts as conceivably might invalidate the ordinance; we are constrained to do the opposite.
The insufficiencies of the showing in this particular litigation therefore impel me to uphold the constitutionality of the ordinance upon this sole ground.
Respondents’ petition for a hearing by the Supreme Court was denied November 29, 1961.