Ex parte Hodges

California Supreme Court Dec 17, 1890 No. No. 20739Published

Before: Works

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Holding. The court held that a county ordinance requiring landowners to exterminate wild animals (ground-squirrels) on their property is unconstitutional and unenforceable because it is unreasonable, burdensome, and exceeds the board of supervisors' authority.

Issues

Whether a board of supervisors has the legal authority to mandate that landowners exterminate wild animals on their property under penalty of law.
Whether the ordinance constitutes a valid exercise of police or sanitary power under the state constitution.

Disposition. Petitioner discharged

Quotations verified verbatim against the opinion

“we are unable to see by what right or authority of law a board of supervisors can impose upon a land-owner-the burden and expense of exterminating animals ferse naturse on his own land, or elsewhere.”

“this authority cannot be so far extended as to require a land-owner, under a penalty, to exterminate wild animals of which he is not the owner, and over which he cannot, in the nature of things, have any control or dominion.”

“We know of no law which can be held to authorize a board of supervisors to enact such an ordinance, and we are quite clear that it cannot be enforced, for the reason that it is unreasonable and burdensome in the extreme.”

Synopsis

Extermination of Wild Animals — Power of Supervisors — Construction of County Government’ Act.—The power conferred by the County Government Act upon boards of supervisors to provide for the destruction of gophers, squirrels, and other wild animals, noxious weeds, and insects, etc., should be upheld in all cases, where the means employed are reasonable, and not otherwise objectionable, but cannot be extended so far as to require a land-owner, under a penalty, to exterminate wild animals of which he is not the owner, and over which he cannot in the nature of things have any control or dominion.

Id. — Destruction of Ground-squirrels — Unreasonable Ordinance — Misdemeanor — Habeas Corpus. — An ordinance requiring all occupants of lands, within ninety days, to exterminate and destroy the ground-squirrels on their respective lands, and thereafter to keep said lands free and clear therefrom, and declaring the violation of the ordinance to be a misdemeanor, is unreasonable and burdensome, and one convicted of a violation thereof is entitled to a discharge on habeas corpus;

Id. — Police and Sanitary Regulations — Constitutional Law. — The ordinance is not a police, sanitary, or similar regulation, and is not authorized by section 2 of article 11 of the state constitution, providing for the enforcement by counties of police, sanitary, or other regulations not in conflict with general laws.

Id.—Police Power—■ Construction of Constitution.—Under section 2 of article 11 of the state constitution, providing for the making and enforcing “of all such local, police, sanitary, and other regulations as are not in conflict with the general laws,” “other regulations” must be limited to objects similar to those denominated police and sanitary.

Works, J. This is an application for a writ of habeas corpus. The board of supervisors of Contra Costa County enacted the following ordinance:—

“ An ordinance to provide for the extermination and destruction of ground-squirrels in the county of Contra Costa.

“ The board of supervisors of the county of Contra Costa do ordain as follows: —

“ Sec. 1. (3-round-squirrels infesting lands in the county of Contra Costa are hereby declared to be a public nuisance.

“ Sec. 2. All owners and occupants of lands within the county of, Contra Costa are hereby required, within ninety days after the taking effect of this ordinance, to exterminate and destroy the ground-squirrels on their respective lands, and thereafter to keep said lands free and clear therefrom.

“ Sec. 3. Any person violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor.

■ “ Sec. 4. This ordinance shall take effect and be in force on the thirtieth day of November, 1889.”

The petitioner was convicted of a violation of this ordinance, sentenced to pay a fine, and in default of payment, was committed to the county, jail. He now prosecutes this proceeding, and asks that he be discharged.

[164]The question as to the constitutionality of the ordinance is gravely and. learnedly discussed by counsel on both sides, and Cooley’s Constitutional Limitations, Potter’s Dvvarris on Construction of Statutes, Sedgwick on Constitutional Law, and other constitutional authorities, and decided cases innumerable, are cited in aid of and against its validity. It is certainly a most effective means of abating a nuisance, viz., the squirrels, and bringing about a very desirable end. We regret exceedingly that we cannot see our way clear to uphold and enforce such an important and original piece of legislation. Indeed, it would give us great pleasure to see the power here assumed applied to snakes, tarantulas, ants, flies, fleas, and other reptiles, insects, and pests, which tend to make man’s life a burden, and to have it exercised and enforced in every county in the state. But we are unable to see by what right or authority of law a board of supervisors can impose upon a land-owner-the burden and expense of exterminating animals ferse naturse on his own land, or elsewhere. It is true, the County Government Act, section 25, subdivision 28, gives boards of supervisors power to “ provide for the destruction of gophers, squirrels, other wild animals, noxious weeds, and insects injurious to fruit-trees or vines, or vegetable or plant life,” and this is a power that should be upheld in all cases, where the means employed are reasonable, and not otherwise objectionable. But certainly this authority cannot be so far extended as to require a land-owner, under a penalty, to exterminate wild animals of which he is not the owner, and over which he cannot, in the nature of things, have any control or dominion. From our limited knowledge of the nature of the squirrel tribe in this state, such a task would seem to us to be almost, if not quite, impossible.

Ex parte Hodges

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