87 Cal. 162 | Cal. | 1890
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.
The ordinance requires that all occupants of lands, within ninety days, exterminate and destroy the ground-
The respondent attempts to sustain the ordinance by and under section 2 of article 11 of the constitution of this state, which provides that “ 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 the general laws.” But the ordinance is not intended to preserve the peace and quiet of the county, or to prevent the use of one’s property to the injury of another, or for the protection of the lives, limbs, or comfort of all persons, or to prevent the propagation or spread of disease, nor is it in any proper sense a police or sanitary regulation. What is meant by “other regulations,” in the section cited, may be a question, but it must certainly be limited to objects similar to those denominated police and sanitary. If the board of supervisors had no authority to pass such an ordinance, then no offense was committed by the petitioner, the act or omission on his part was not a crime, the court had no
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.
Let the petitioner be discharged.
Fox, J., Sharpstein, J., and Thornton, J., concurred.
Paterson, J., and McFarland, J., concurred in the judgment.