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
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
Were anything else required to establish the necessity for such local legislation, the amendment to the constitution, designated as section 25%, article 4, adopted in 1902, certainly indicates that the people of this state in the adoption of such amendment recognized the local character of legislation necessarily appropriate for the preservation of fish and game. We are of opinion, therefore, that the delegation of police power in section 11, article 11, should be held to include the local legislation necessary, in the opinion of the supervisors, to completely protect the wild game within the bounds of the various counties of the state. What we have here said applies to conditions existing prior to the year 1902, when the amendment to the constitution, designated as section 25%, article 4, was adopted. This amendment provides as follows: “The legislature may provide for the division of the state into fish and game districts, and may enact such laws for the protection of fish and game therein as they may deem appro-, priate.” This section and the other sections of the constitution relating to the uniform application of the laws and the delegation of police power must be read and construed together ; and in such construction the more specific provisions control the general, without regard to their comparative dates—the two acts operating together, and neither working
While it is true that an immediate repeal of one of the provisions of the constitution may not be effected under the rule thus laid down as to statutes, yet the effect is to supersede previous constitutional provisions when conflicting amendments have been adopted whenever appropriate legislation is enacted carrying the amendments into effect. “There is no express repeal of the former provisions of the constitution. They merely cease to exist by reason of new provisions upon the same subject being substituted for them.....The old provisions will cease to have effect from time to time, as the substituted provisions commence to operate:” In the Matter of Oliverez, 21 Cal. 418. Under these authorities, then, the laws in force when section 25% was adopted continue in force until substituted by new legislation under the later amendments; but legislation after the adoption of such amendment must of necessity be in harmony with the constitution existing at the time of its enactment. So that even the legislature is restricted in its power to legislate upon this subject of game in any manner conflicting with section 25%.
The provisions of this section are mandatory. While the word “may” is employed, the subject of the amendment is
We are unable to see, however, any significance attaching to the manner in which the word “may” shall be read in this constitutional amendment, inasmuch as its obvious intent was to confer upon the state legislature alone authority to deal with the subject of fish and game, and in such legislation to relieve it from the necessity of enacting general laws applicable alike to the whole state, and the effect of which could only be to remove the necessity theretofore existing for delegation of power to local authorities. We are of opinion, therefore, that any authority reposing in the legislature to delegate legislative power to counties in reference to this subject was revoked by the amendment 25%; and the failure and neglect of the legislature to obey the plain mandate of the constitution does not empower the board of supervisors to assume this duty reposing in the state alone. This ordinance, therefore, having been adopted since the adoption of section 25%, and since authority to delegate power with reference to this subject has ceased to exist, it must be held to be invalid. Were it even a valid exercise of power, the ordinance upon its face is an unreasonable exercise thereof. The^ delegated power originally was with reference to shortening the season, which can only be held to be a period of time within which persons might exercise a natural right to hunt and kill the game belonging to the' public, and not to enact -an ordinance in its nature prohibitive.
I concur: Gray, P. J.
SMITH, J.—I concur in the decision on the ground last stated.