Ex Parte Knapp

TEMPLE, J.

This is an application for a discharge from custody made on behalf of James Knapp, who was arrested, tried, and convicted upon a charge of violating an ordinance

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of the county of Stanislaus. The ordinance declares, in effect, that it shall be a misdemeanor for anyone to hunt, kill, or destroy certain game with intent to transport, or to cause the same to be transported, without the county; or to offer the same to any person for the purpose of shipping or carrying the same without the county. It also declares that every railroad or transportation company, their agents and servants, who shall transport such game without the county shall be guilty of a misdemeanor.

The prisoner was charged with willfully and unlawfully offering for transportation by Wells, Fargo & Co., from the town of Hewman, in Stanislaus county, to San Francisco, two wild ducks which were killed in Stanislaus county.

Serious question has been made as to the power of any county board of supervisors to add either restraints or regulations, to the right to take and kill wild game, to those made by the legislature. We do not find it necessary for the purposes of this case to decide that question. If such further restrictions upon the right to kill game may be made by county boards, such regulations must be reasonable, not oppressive to any class, and must not contravene any established policy of the state. Presumably, the two ducks were lawfully taken by James Knapp in Stanislaus county. It is not charged that they were hunted or killed for the purpose of being transported without the county, though such fact, if it existed, would not have changed the result. Having taken the game lawfully and at a time when it is lawful for anyone to shoot ducks, the ordinance prohibiting their shipment is an unreasonable interference with the right of private property, and an unnecessary restraint of trade. 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.) The state regulations upon this particular subject seem complete, and restrict the rights of citizens so far as was necessary to prevent the unlawful killing of game.