Ex parte Kenneke

Petitioner was arrested and is held under a charge of violating section 626k of the Penal Code, which is, omitting parts of the section not material here, as follows: “Every person who buys, sells, offers or exposes for sale, barter, or trade, any quail ... is guilty of a misdemeanor.” The sole ground upon which petitioner seeks to be discharged is the alleged unconstitutionality of the said section. It is contended that the section is violative of the fourteenth amendment of the Federal constitution, and of section 11 of article I of the constitution of this state, in that it is not uniform in its operation, that it illegally discriminates between different classes of persons, that it deprives persons of the equal protection of the laws, and interferes with the inalienable right of acquiring, holding, and protecting property. The contention is not maintainable.

' Wild game belongs to the whole people, and the legislature may dispose of it as may seem to it best,—subject only to constitutional limitations against discriminations. Within those limitations the legislature, for the purpose of protecting game, may pass such laws as to it seem most wise; and “the measures best adapted to that end are for the legislature to determine, and courts cannot review its discretion.” (Ex parte Maier, 103 Cal. 476 ,^[2] and cases there cited.) There

The law in question does not destroy a right of property. This point was correctly disposed of by the supreme court of Illinois in American Express Co. v. State, 133 Ill. 649 .^[2] In that case the court, dealing with a statute, similar to the one here involved, and with this question of the right of property, say: “The fallacy of the position consists in the supposition that the person who may kill quail has an absolute property in the dead- animals. In the Magner case, supra, it was held, as has been seen, that no one has a property in animals and fowls denominated game,—the ownership was in the people of the state. This being so, it necessarily followed that the legislature had the right to permit persons to kill or take game upon such terms and conditions as its wisdom might dictate, and that the person killing game might have such property interest in it, and such only, as the legislature might confer. The legislature has never conferred an absolute property in quail upon the person who might kill the same. The killing of quail during the months of October and November was permitted, not for sale,—not to go upon the market as an article of' commerce,—but for the mere use of the person who killed the birds. The person killing quail under this statute has but a qualified property in the birds after they are killed. He may consume them. If a trespasser should take them from him, he might maintain an appropriate action to regain the possession. But the law' which authorized bim to kill the quail has withheld the right to sell or the right to ship for the purpose of sale, and when such person undertakes to ship for sale he is undertaking to assert a right not conferred by law. The act, therefore, does not destroy a right of property, because no such right exists.”

There is no arbitrary discrimination in the law which would make it obnoxious to the fourteenth amendment, or to any provision of our state constitution; there is no discrimination in it whatever. Under the law all persons have the same right to kill quail within certain limitations; and it provides

The wild game of the state, it is true, belongs to the people in their sovereign capacity, and it is not the subject of private dominion to any greater extent than the legislature may see fit to make it; but, as said in Kellogg v. King, 114 Cal. 378 :^[1] “The legislature has seen fit to prescribe the limit where public proprietorship ends and that of the individual commences; and, when within the provisions of such statute, an individual is as much to be protected in the enjoyment of his rights in this species of property as in any other under the law,”—citing section 656 of the Civil Code, which reads: “Animals wild by nature are the subject of ownership, while living, only when on the land of the person claiming them, or when tamed, or taken and held in the possession, or disabled and immediately pursued.” Game birds are included in the section of the Civil Code in reference to animals wild by nature. In the opinion quoted, the term “animals wild by nature,” as used in the Civil Code, was construed to include game birds. •

Laws for the protection and preservation of wild game are in their nature police regulations, and, as said in Forster v. Scott, 136 N. Y. 577 : “This power can be used only to promote the public good, and is always subject to judicial scrutiny. ’ ’ And in Colon v. Lisk, 153 N. Y. 197 ,^[2] it is said : “That power must be exercised subject to the provisions of both the Federal and state constitutions. .Laws passed in the exercise of it must tend toward the preservation of the lives, health, morals, or welfare of the community, and the court must be enabled to see some clear and real connection between the assumed purpose of the law and the actual provisions thereof, and that the latter tend in some plain and appreciable manner toward the accomplishment of the objects for which the legislature may use this power.” Judge Ross, in the case of In re Marshall, 102 Fed. Rep. 323 , says: “Laws enacted in the exercise of the police power by a municipal corporation acting in pursuance of the laws of the state, or by a state itself, must be reasonable, and are always subject to the provisions of both the Federal and state constitutions,