Ex Parte Bailey

ANGELLOTTI, J.

At the time of the issuance of the writ, herein, the petitioner was in custody under a judgment pronounced upon his conviction of a violation of the provisions of an ordinance of the town of Santa Monica, adopted November 19, 1900. His claim was that the ordinance is void. His application was pending unsubmitted at the time of the fire-of April 18-20, 1906, and the record was destroyed. It is only within the last few weeks that the record has been restored,, and the matter submitted for decision.

The ordinance in question is as follows:

“Ordinance • 346. An ordinance regulating seining in certain portions of the town of Santa Monica.

“The board of trustees of the town of- Santa Monica do ordain as follows:—

“Section 1. It shall be and is hereby made unlawful for any person to set, draw or use any fishing net or seine in the Pacific Ocean at any point or place within said town less than one thousand feet from any wharf, dock or pier located in said town.

“Section 2. Any person violating section 1 of this ordinance shall be deemed guilty of a misdemeanor, and upon conviction by any court of competent jurisdiction, shall be-

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fined in a sum not exceeding fifty dollars, or be imprisoned in the town jail, for not more than thirty days, or both, at the discretion of the trial court.”

We think it is manifest from the terms of the ordinance that it was in no sense designed for the preservation and protection of fish for the benefit of the people of the state, as are the laws enacted by the state legislature in that behalf to be found in title XV of the Penal Code, and it will therefore be unnecessary to consider the claim that a municipality in the exercise of the police power may enact such regulations for the protection of wild game within its borders as may not be in conflict with general laws of the state. We do not desire to be understood, however, as suggesting that a municipality has any such power.

It is unnecessary to decide this point, for such manifestly was not the purpose of the ordinance. The prohibition against the use of fishing nets and seines extends only to places “less than one thousand feet from any wharf, dock or pier located in said town.” The presence of a wharf, dock, or pier is ,the material thing, and it was clearly the sole object of the ordinance to protect and add to the piscatorial advantages of the wharves, docks, and piers in the town.