102 F. 323 | U.S. Circuit Court for the District of Northern California | 1900
The petitioner was convicted in the justice’s court of Marin county, Cal., of a violation of the provisions of an ordinance enacted by the board of supervisors of that county declaring in its seventh section that “every person who, in the county of Marin, shall use any kind of a repealing shotgun, or any kind of a magazine shotgun, for the purpose of killing or destroying any kind of wild duck, geese, quail, partridge, doves, or any other birds, shall be guilty of a misdemeanor”; and by its eighth'section, prescribing
By the fourteenth amendment of that constitution, it is, among other things, declared that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The broad question in the case is whether all or either of these provisions have or has been'violated by the judgment under which the petitioner is held in custody. “Life,” said Mr. Justice Swayne in the Slaughter-House Cases, 16 Wall. 127, 21 L. Ed. 425, “is the gift of Gl-od, and the right to preserve it is the most sacred of the rights of man. Liberty is freedom from all restraints but such as are justly imposed by law. Beyond that line lies the domain of usurpation and tyranny. Property is everything which has an exchangeable value, and the right of property includes the power to dispose of it according to the will of the owner. Labor is property, and, as such, merits protection. The right to make it available is next in importance to the rights of life and liberty. It lies, to a large extent,, at the foundation of most other forms of property.” This was said in a dissenting opinion, but it is none the less true. The evidence given on the hearing of the application of the petitioner shows that the repeating shotgun with which the petitioner killed the quail and blue jay he was convicted of killing was his own gun, manufactured by a concern whose annual output of such guns aggregates several million dollars in value; that the petitioner killed the quail and blue jay on his own land; and that the gun in question with which he did the killing was not only not more, but in fact less, destructive than the double-barreled automatic ejector shotgun, not prohibited by the Marin county ordinance. G-uns are made, not for ornament, but to be used; and their chief, if not their only, value is in their use. “The constitutional guaranty,” said the court of appeals of New York in Re Jacobs, 98 N. Y.
“Every person who in the county of Marin shall take, kill or destroy more than twenty-five quail, partridge or grouse in one day, and every person who in the county of Marin shall have in his posso/skni In any one day more than twenty-five quail, partridge, or grouse, shall he guilty of a misdemeanor.”
An order will be entered discharging the prisoner from custody.