In Re E.L. McCapes

HENSHAW, J.

Petitioner was charged with and con victed of a violation of subdivision 3 of section 384 of the Penal Code. That section declares it to be a misdemeanor if any person shall willfully or negligently build “a fire on his own land for the purpose of burning brush, stumps, logs, rubbish, fallen timber, fallows, grass or any other thing whatsoever, . . . provided, that any state or district fire warden may in his reasonable discretion give a written permit to any person desiring to build fires,” etc. He earnestly contends, that the section under which" he is charged is unreasonable and oppressive, that it unduly and unwarrantedly interferes with his right to the enjoyment and use of his property, and that thus and therefore it is in violation of section 1 of the fourteenth amendment of the constitution of the United States and of section 1 of article I of the constitution of this state. The contention of the petitioner, we think, must be upheld.

It is to be noted that the act is designed to prevent the destruction of property, and particularly of forests, by the careless setting of fires. In its purview and purpose, there

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fore, the act is within the police power of the state. No one at this day can be unaware of the great havoc wrought by forest fires, and, indeed, in states such as this, which undergo long periods of drouth, of the loss which results from fires sweeping over the farming lands and destroying the crops. The purpose of the law being for the general good of the state, to prevent the destruction of property by fires carelessly set and allowed to escape control, not only brings the act strictly within the police power, but the purpose must commend the act to every court. Nevertheless, in the accomplishment of that purpose, it is quite plain that the legislature has transgressed all reasonable bounds. It is an exemplification of what this court said in

Ex parte Jentzsch,

112 Cal. 468, [44 Pac. 803]: “So, while the police power is one whose proper use makes most potently for good, in its undefined scope and inordinate exercise lurk no small danger to the republic. For the difficulty which is experienced in defining its just limits and bounds affords a temptation to the legislature to encroach upon the rights of citizens with experimental laws, none the less dangerous because well' meant.” We are here concerned only with the validity or invalidity of subdivision 3 of section 384, under which this petitioner is charged. But a consideration of other sections will serve to illumine the discussion. Section 1 makes it a misdemeanor to set fire to any forest, woodland, brush, prairie, grass, grain, stubble, or any other material being or growing on lands not owned by the person who may set the fire, without the permission of the owner of such land. But the same section permits one to build camp-fires upon lands not his own without the permission of the owner, or anybody else, if the lands are uninclosed, if the camp-fire is built “in a careful manner,” and if, before departing from the place where such camp-fire has been built, the builder “first totally extinguishes the same.” But by section 3, a man cannot build a fire on his own land for the purpose of burning brush, stumps, logs, rubbish, fallen timber, fallows, grass, or any other thing whatsoever, without first obtaining a permit so to do, or unless the fire be built (subdivision 5)‘ in good faith and with reasonable care as a “back fire” for the purpose of stopping the progress of a fire then actually burning. Railroad companies, in the dry season, frequently burn the weeds along