In re Giampe

BARNARD, P. J. Application for writ of habeas corpus. The petitioner was taken into custody on a charge of violating section 844 of the Fish and Game' Code as amended in 1935 (Stats. 1935, p. 1205), it being charged that he unlawfully operated a net, other than a bait seine, for the purpose of taking fish within that portion of District 19 lying between the northern boundary of Orange County and San Mateo Point at or near the southern boundary of said county, and extending oceanward two miles from the line of mean high tide.

It is petitioner’s contention that section 844 of this code is unconstitutional and void as local and special legislation, and that in adopting the same the legislature exceeded the authority conferred upon it by section 25% of article IY of the Constitution. This provision authorizes the legislature to provide for the division of the state into fish and game districts and to enact such laws for the protection of fish and game [277]as it may deem appropriate to the respective districts. The questions here presented are whether the legislature, under the authority thus granted, may enact laws applying only to a portion of a fish and game district so established, and whether the legislature, in amending section 844 in 1935, intended to and did create a new district.

The first question, although suggested in the ease of In re Mascolo, 25 Cal. App. 92 [142 Pac. 903], seems not to have been decided. Section 25% of article IV of the Constitution was adopted for the purpose of removing the restriction which formerly prohibited local and special laws where a general law could be made applicable and to permit local and special laws protecting fish and game, in certain sections of the state, to be set apart for the purpose, in order to meet varying conditions in these areas. (Paladini v. Superior Court, 178 Cal. 369 [173 Pac. 588]; In re Makings, 200 Cal 474 [253 Pac. 918].)

We think the language used in this section of the Constitution and the very purpose which is apparent in the section indicate a specific intention to limit the authority thus given to enact such local laws, and that it was intended that this freedom from the former restriction should extend only so far as to permit the enactment of such laws as might be deemed appropriate to an entire district as formed in accordance with the authority given. The section recognizes the need of different regulations of this nature in different parts of the state, and gives the legislature the widpst discretion in forming such districts, which may be made small enough to cover any area in which special legislation may be needed. In giving this right to form districts and to enact laws appropriate thereto, the section plainly excludes smaller areas and fails to authorize local legislation affecting a portion of a district or anything less than the district which is made the only basis for an exception to the general rule.