Ex Parte Kenneke

McFARLAND, J. 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, 1 and cases there cited.) There *529 is no question in the case at bar as to the reasonableness of an ordinance as in Ex parte Knapp, 127 Cal. 101, and other cases cited; the provision attacked here is a law of the state passed by the legislature. 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. 1 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 *530 that “every person who buys, sells,” etc., any quail shall be guilty, and does not give to any person the right to so buy or sell. (See, also, Geer v. Connecticut, 161 U. S. 519.) The petitioner is remanded and the writ discharged. Garoutte, J., Henshaw, J., Harrison, J., and Beatty, C. J., concurred. Footnotes [1] 42 Am. St. Rep. 129, and note. [1] 23Am. St. Rep. 641.