Ex parte Prindle

California Supreme Court Jul 29, 1905Published

Before: Allen

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Holding. The court held that a county ordinance regulating the hunting of doves was invalid because the adoption of section 25 1/2, article 4 of the state constitution revoked the authority of local boards of supervisors to legislate on the protection of fish and game. Additionally, the court found the ordinance to be an unreasonable exercise of power as it was prohibitive rather than regulatory.

Issues

Whether the board of supervisors had the authority to enact an ordinance regulating the hunting of doves following the adoption of section 25 1/2, article 4 of the state constitution.
Whether the ordinance constituted an unreasonable exercise of power by being prohibitive in nature.

Disposition. reversed

Quotations verified verbatim against the opinion

“Were it even a valid exercise of power, the ordinance upon its face is an unreasonable exercise thereof.”

Synopsis

Game—Protection by Local Authorities.—Constitution, article 11, section 11, authorizing any county, city, or town to make and enforce within its limits such local police regulations as are not in conflict with general laws, delegated to the county supervisors, prior to the passage of constitution, amendment, article 4, section 25%, authorizing the legislature to divide the state into game districts, the power to legislate for the complete protection of wild game within the bounds of their respective counties.

Game—Construction of Constitution.—Constitution, amendment, article 4, section 25%, authorizing the legislature to provide for the division of the state into fish and game districts and enact appropriate laws for the protection of fish and game therein, is to be construed with other sections of the constitution relative to the uniform application of the laws and the delegation of police power, and in such construction the more specific provision controls the general, without regard to the comparative dates; the different sections operating together, and neither working the repeal of the other.

Game.—Constitution, Amendment, Article 4, section 25%, authorizing the legislature to provide for the division of the state into fish and game districts and to enact appropriate laws for the protection of fish and game therein, prevails over earlier conflicting provisions of the constitution; and, while laws previously in force continue in force until substituted by new legislation, legislation subsequently adopted must be in harmony with the amendment.

Game—Mandatory Provisions of Constitution—“May.”—Consti-, tution, article 4, section 25%, providing that the legislature “may” provide for the division of the state into fish and game districts and “may” enact appropriate legislation for the protection of fish and game therein, is mandatory, and commands the legislature to enact necessary legislation touching the care and custody of game with reference to local conditions, which require special legislation for particular localities.

Game—Powers of Supervisors.—Under constitution, amendment, article 4, section 25%, requiring the legislature to provide for the division of the state into fish and game districts and to enact appropriate legislation for the protection of fish and game therein, any previous authority existing in the legislature to delegate legislative power in reference to fish and game to counties is revoked, and, notwithstanding the failure of the legislature to obey the mandate of the constitution, a board of county supervisors is without authority to regulate, by ordinance passed after the adoption of such amendment, the hunting of game within the limits of the county.

Game—Unreasonable Legislation.—In View of the Provision of Penal Code, section 626a, making it a misdemeanor to hunt, kill or destroy doves between February 15th and July 1st of the same year, a county ordinance declaring it unlawful to hunt or destroy doves within the limits of the county between the thirtieth day of June and the fifteenth day of August of each year, and between the fifteenth day of August and the sixteenth day of February of the year next ensuing, and thus leaving but one day in the year open to hunt doves, is unreasonable.

ALLEN, J. The defendant was arrested for the violation of ordinance No. 120 (new series), enacted on the sixteenth day of May, 1905, by the board of supervisors of Los Angeles county. Section 1 of the ordinance provides: “It shall be unlawful in the county of Los Angeles, between the thirtieth day of June and the fifteenth day of August of each year, and between the fifteenth day of August of each year and the sixteenth day of February of the year next ensuing, for any person to hunt, pursue, take, kill or destroy, or have in his possession, any dove or doves.” Upon trial the defendant pleaded guilty, and was committed to the county jail upon default of payment of the fine imposed. This writ was issued upon his application, and the respondent, upon the return, justifies the imprisonment under such conviction.

The question presented is as to the validity of said ordinance. Section 626a of the Penal code makes it a misde[225]¡meanor “to hunt, kill, pursue, or destroy, or have in .possession, any dove or doves, between the fifteenth day of February and the first day of July of the same year.” It will be observed that, taking the ordinance and the section of the Penal Code last referred to together, there remains but one day in each year open for the hunting, pursuing or killing of doves, or for having the same in possession, within Los Angeles county. The authority of the board of supervisors to enact this ordinance is claimed under section 11, article 11, of the state constitution, which reads: “Any county, city, town, or township may make and enforce within its limits, all such local, police, sanitary and other regulations as are not in conflict with general laws.” The county government act of 1897 provides that boards of supervisors shall have power to provide by ordinance, not in conflict with the general laws of the state, for the protection of fish and game, and may shorten the season for the taking and killing of fish or game within the dates fixed by the state laws, but shall not lengthen the same.

The respondent’s contention is that the regulation as to the killing and protection of wild game is referable to the police power, is local in its character, and is by the constitution delegated to the boards of supervisors. The right of the state legislature to enact laws for the protection of wild game, which belongs to the people of the state in their collective capacity, is held by our supreme court, in Ex parte Maier, 103 Cal. 482, 42 Am. St. Rep. 129, 37 Pac. 402, to be founded upon the general power to legislate, where not restrained by express or implied provisions of the constitution, and for the reason that the protection and preservation of game has been secured by law in all civilized countries, and may be justified on many grounds, one of which is for the purpose of food. In the ease last mentioned, the legislative authority prohibiting one to have in his possession wild game, wherever killed, is said to be referable to the police power. The phrase “police power,” as employed in the constitution, is admitted to be found many precedents wherein it is declared that certain legislation is referable to such power, notably in the ease of Thorpe v. Rutland & Burlington R. R. Co., 27 Vt. 149, 62 Am. Dec. 625, cited and approved in Ex parte Maier, 103 Cal. 485, 42 Am. St. Rep. 129, 37 Pac. 405, where, in referring to

Ex parte Prindle

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