In Re Makings

California Court of Appeal May 17, 1926 No. Docket No. 1323.Published

Before: Sturtevant

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Holding. The court held that Section 628 of the Penal Code, which restricts the transportation of crabs from specific fish and game districts, is constitutional as a valid exercise of legislative authority over state-owned natural resources. The statute does not violate constitutional equality requirements because it applies equally to all persons and constitutes permissible local and special legislation.

Issues

Whether Section 628 of the Penal Code is unconstitutional due to discriminatory classification of fish and game districts.
Whether the legislature has the authority to restrict the transportation and sale of crabs as a condition of their taking.

Disposition. denied

Quotations verified verbatim against the opinion

“If the classification adopted rests on any natural, intrinsic or constitutional distinction it is permissible.”

“The equality of the constitution is the equality of persons, and not of places,—the equality of right, and not of enjoyment.”

STURTEVANT, J.

This is an application for a writ of

habeas corpus.

The petitioner is held by the constable of Sausalito township, county of Marin, under a warrant of arrest issued out of the justice’s court of said township by virtue of a complaint filed in said court which charges that on the twelfth day of March, 1926, the petitioner “ . . . did then and there wilfully and unlawfully transport and carry crabs from the Pish and Game District No. 1% to the County of Marin, State of California. ...” The petitioner asserts the complaint is based on section 628 of the Penal Code, subdivision “c” (Stats. 1925, p. 456) thereof, and that such portion of the-statute is unconstitutional because it is discriminatory. In this connection the petitioner earnestly contends that “if crabs are caught in any one of said districts then any of the other six districts has and enjoys the right and privilege of having said crabs shipped into it, sold to, purchased by, and consumed by the residents of such district. . . . Each of these particular seven districts enjoys privileges in regard to crabs caught in any one of this group of seven which are not enjoyed or possessed by the other fifty-three (53) fish and game districts. . . . Crabs caught in District No. 5 can be shipped into District No. 1% and bought and consumed by its people but the people residing in District No. 1 have no such privilege.”

Section 628 of the Penal Code (1) prohibits the taking at any time of crabs less than seven inches in diameter measured across the back; (2) the taking of any female crab; (3) the taking, between July 31st and November 14th, of any crab excepting imported crabs; (4) the sale of crab meat not in the shell; (5) or the bringing to shore of any portion of

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any crab without the remaining portions showing its size; and then it provides:

“

(c) Every person who ships or offers for shipment or who transports or carries any species of crab from fish and game districts one and one-half, five, six, seven, seven ‘A,’ eight and nine, either to a point outside of the state or into any part of the state other than in districts one and one-half, five, six, seven, seven ‘A,’ eight and nine, or 'who holds any crabs in live cars within said fish and game districts, is guilty of a misdemeanor.

In Re Makings

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STURTEVANT, J.

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