VAN DYKE, J., dissenting.
I dissent. The petitioner is charged with selling one quail during the open season, in violation of the section of the Penal Code as amended by the legislature at the session of 1901. The amendment in question, in my opinion, is unconstitutional. Our state constitution declares: “All laws of a general nature shall have a uniform operation.” (Art. I, sec. 7.) And by the fourteenth amendment to the constitution of the United States, among other things, it is declared that no state shall deprive any person of life, liberty, or property without due process of law. In the Slaughterhouse cases (16 Wall. 127) it is "said: “Liberty is freedom from all restraints but such as are justly imposed by law. Beyond this line lies the domain of usurpation and tyranny. Property is everything that has an exchangeable value, and the right of property includes the power to dispose of it according to the will of. the owner.” The amendment to the Penal Code under consideration has made a sharply defined discrimination against selling quail and other game birds or animals, and not against the killing of them, and the purpose thereby to preserve them for the special benefit of those who may belong to gun-clubs, or who possess the leisure and qualifications of sportsmen, is as plain as though so written in direct terms; and this class is very insignificant in number, compared with the whole people of the state. The women and children of the state, and the men who have not sufficient time to hunt game, and the old and infirm, and such as are not endowed with good sight, are all deprived of any use or benefit in the wild game, unless some sportsman friend may see proper to give it to them.
He has read history to very little purpose who does not know that game laws such as this,' enacted and enforced in the interests of a privileged few, have been the fruitful source of the oppression of the masses of the people, and have caused
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more popular discontent and resentment than almost any other subject. It were better to exterminate the game at once than to preserve it for the special benefit only of a favored few.
The wild game of the state, it is true, belongs to the people in their sovereign capacity, and it is not the subject of private dominion to any greater extent than the legislature may see fit to make it; but, as said in
Kellogg
v.
King,
114 Cal. 378:
1
“The legislature has seen fit to prescribe the limit where public proprietorship ends and that of the individual commences; and, when within the provisions of such statute, an individual is as much to be protected in the enjoyment of his rights in this species of property as in any other under the law,”—citing section 656 of the Civil Code, which reads: “Animals wild by nature are the subject of ownership, while living, only when on the land of the person claiming them, or when tamed, or taken and held in the possession, or disabled and immediately pursued.” Game birds are included in the section of the Civil Code in reference to animals wild by nature. In the opinion quoted, the term “animals wild by nature,” as used in the Civil Code, was construed to include game birds. •
Laws for the protection and preservation of wild game are in their nature police regulations, and, as said in
Forster
v.
Scott,
136 N. Y. 577: “This power can be used only to promote the public good, and is always subject to judicial scrutiny. ’ ’ And in
Colon
v.
Lisk,
153 N. Y. 197,
2
it is said : “That power must be exercised subject to the provisions of both the Federal and state constitutions. .Laws passed in the exercise of it must tend toward the preservation of the lives, health, morals, or welfare of the community, and the court must be enabled to see some clear and real connection between the assumed purpose of the law and the actual provisions thereof, and that the latter tend in some plain and appreciable manner toward the accomplishment of the objects for which the legislature may use this power.” Judge Ross, in the case of
In re Marshall,
102 Fed. Rep. 323, says: “Laws enacted in the exercise of the police power by a municipal corporation acting in pursuance of the laws of the state, or by a state itself, must be reasonable, and are always subject to the provisions of both the Federal and state constitutions,
[532]
and they are always subject to judicial scrutiny,” and as further said in the same case: “Property is everything that has an exchangeable value, and the right of property includes the power to dispose of it according to the will of the owner. ’ ’ Mr. Justice Field, in his dissenting opinion in
Geer
v.
Connecticut v.
161 U. S. 541, says: “When
property,
like the game birds in this ease, is reduced to possession, it becomes an article of commerce, and may be the subject of
sale.”
Mr. Justice Harlan, in the same case, also dissenting, says: “The state, as we have seen, does not prohibit the killing of game, but permits hunting.and killing of . . . quail . . . between the first day of October and the first day of January. The game in question, having been lawfully killed, the person who killed it and took it into his possession became the rightful owner thereof. This I take it will not be questioned. As such owner, he could dispose of it, by gift or sale, at his discretion.” Although these are dissenting opinions, it would not be the first time in the history of jurisprudence if they contained the better law.
In
Ex parte Knapp,
127 Cal. 101, it is held: “An ordinance intended to discriminate in favor of sportsmen and against all other persons in respect to the disposition of game lawfully killed is not a proper exercise of police power,” and to show that this rule is made applicable also to state legislation as well as ordinances of a city or county, the opinion proceeds: “The statutes of the state in regard to game prohibit the offering for sale of game during the time it is unlawful to kill such game. (Stats. 1897, p. 90.) State legislation upon this subject seems complete, and restricts the rights of citizens so far as was necessary to prevent the unlawful killing of game. It was stated on argument, substantially, that the ordinance was aimed at 'pot-hunters.’ I understand this phrase covers all except sportsmen. Relatively, a small part of the community only are sportsmen. A law or ordinance which would discriminate in their favor would not be a proper exercise of the so-called police power.”
For the foregoing reasons I think the prisoner should be discharged.
Temple, J., concurred in the dissenting opinion.
1
55 Am. St. Rep. 74.
2
60 Am. St. Rep. 609.