SHOTGUN. AUTOMATIC 20 Mr. AUTOMATIC time the upon the limitation that found have We Pownrrs. within which game may be killed and the limitation upon the amount than the of game that can be killed, rather than any legislation as .to game, of amount the increase to State our in able weapon, has been and there is much more there than there was ten years ago. repeating Judge The petitioner was convicted in the justice’s court of Marin County, in the county who, person shall use of Marin, killing or deor any other of a misdemeanor— pirds shall be guilty and by its eighth section prescribing that— violating person Any misdemeanor in the county provision any and, upon conviction jail for not less than this of shall ordinance be of guilty a thereof, shall be punished by imprisonment ten days or more than thirty days, or pay a dollars, or by fine of not less than twenty dollars or more than two hundred A judgment that the defendant pay a fine poth such fine and imprisonment. specifying the may also direct that he be imprisoned until the fine is satisfied, extent fine. imprisonment, of Fed. (102 Rep., which must not exceed one day every for dollar of the 323.) So that you will see that the precise question arose in that case in ‘That was the only question before the respect to the ordinance. What court on which the man was brought up on habeas corpus. : language his from quote I say? did Judge Ross But public in no surely, safety, respect lation in who, in the one at bar. where there is no question of the or public morals, and where the prohibited act is the absolute prohibition of the use of one’s own in a case like public health, in se, malum property on his own land can police power, when regulations not be held will plainly present question. In the county of Marin, instance, to be a reasonable exercise of. the attain the end desired by the legiswhat was the end sought? Mani- of more than festly only the prevention of the taking or killing by one person of the ordinance 25 quail, partridge, or grouse in any one day; for section 3 take, kill, or deprovides: “ Every person who, in the county of Marin, shall every person stroy more than 25 quail, partridge, or grouse in one day, and the shall have in his possession in any one day shall be guilty of a misdemeanor.” That or magazine gun or a double or single barreled gun. When the limit ing guus, and so on until the popgun only is permitted to be used upon wild duck, kind of a repeating any of or any kind of a magazine shotgun for the purpose any kind of wild duck, geese, quail, partridge, doves, grouse, The equal protection of the laws to which every person is, by the provision of the Constitution of the United States above quoted, declared entitled, would indeed be a vain thing if such discriminatory legislation was sustained by the If section 7 of the ordinance in question is valid, no reason is perceived courts. why the process of elimination may not be extended by next prohibiting the use of the double-barreled automatic-ejector shotgun, next all but muzzle-load- 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 or , He means the Parker gun, and guns of that character. The CuarrMAn. In that case the defendant killed the game on his own land? I have not read the decision clear through. Does it make any difference ? Mr. Bover. I do not think there is any distinction on that point. It was in respect to the legislation itself. The CuairmMan. The court makes no distinction ? Mr. Bover. No, sir. You will see that it has been declared unconstitutional. Further he says: Ross, one of the best judges on the circuit bench, decided that case. shotgun stroying partridge, And the is reached he has to stop shooting or incur the penalty prescribed. No opportunity of detection is just as great in the one case as in the other. counsel, valid reason is therefore perceived, and none has been suggested by from why the owner of a repeating or magazine shotgun should be prohibited if not more effective double-barreled of the equally using it, and the owner automatic-ejector shotgun be free to use it. 20 manner of reaching it. For instance, you can limit a man to You can only kill two deer in the State of Maine, and quail a day. And it is a signifithat within a very short space of time each year. of cant fact that in Maine, which has more deer than any other part because bill, this pass to d attempte have never they the country. be they knew that that State was full of sportsmen, and it would killed the minute that it was presented. Mr. Powers. Maine is the finest game preserve in the world. Mr. Bover. Yes, sir; it is the finest game preserve in the world. They kill hundreds of moose and caribou and deer every year; and yet in that State of sportsmen, where shotguns and rifles are used, these gentlemen have not seen fit to ask the legislature to pass this bill. Now, as to the constitutionality of this bill. Let us take the case of Mather v. Marshall (reported in 102 Fed. Rep., 323) in the United States circuit court for the northern district of California. quail, as with it. end is just as effectively accomplished without the obnoxious section hunter use a It is wholly immaterial to that object whether the sportsman or Certainly; that is constitutional and is the practical Mr. Bover. 25 AB I SHOTGUN. more Laws geese, quail, partridge, grouse, doves, or other birds in. Marin Country. enacted in the exercise of the police power, whether by a municipal corporation acting in pursuance of the laws of a State, or by a State itself, must be reasonable and are always subject to the provisions of both the Federal and (Yick State constitutions. and they are always subject to judicial scrutiny. v. Hopkins, 118 U. S., 372; Forster v. Scott, 1386 N. Y., 577, 584; Toledo, Wo Wabash & W. R. RB. Co. v. City of Jacksonville, 67 Ill., 37; Ex parte Whittwell, ‘98 Cal., 73.) Further on he says: has been said,-I think, to show that the section of the ordinance Enough under which the petitioner was convicted and is imprisoned is unconstitutional and void. Mr. Rew. If I note it clearly the ordinance prohibited the killing of more than a certain number of birds? Mr. Bover. No, sir; the law prohibited the use of the automatic The petitioner was convicted in the justice’s court of shotgun. Marin County, Cal., of the 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 repeating shotgun, or any kind of a magazine shotgun,” and so forth. | Mr. Rew. They put it on the broad ground ? Mr. Boven. Yes, sir; that legislation of that character was contrary to the Constitution of the United States. Mr. Kuierrer. Will you allow me to ask you a question? Mr. Bover. Certainly, sir. Mr. Kurrrrer. Suppose there was no limitation there as to the number of birds that one could kill in a day, do you think the court would then have decided as he did? Mr. Bover. Undoubtedly so. That was simply an illustration of the practical way in which game birds could be preserved, just by