The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-09-12
Judge AngelIotti Points Out
Its Defect in a De-
CiSiOn.
THE OPEN SEASON EXTENDED.
Attorney Adolph sylvia Released
From Voluntary Custody in
Test Case.

SAN RAFAEL, CAL, Sept. 1.-The
close season as to killing deer in Marin
County is by the ineffeetiveness of the
county ordinance extended till October
10. The ineffectiveness of the ordinance
was declared by Judge Angellotti OF the
Marin County Superior Court to-day in
decision handed down in re A. Sylvia on
habeas corpus. The case was brought
into the court through the voluntary
violation of the county ordinance by Sylvia
for the purpose of testing the validity OF
the law. The court held that the absence
of prescribed penalty rendered the or
dinance useless, and hence the protection
of game is subject only to the State law.
Following is 1.-THE substance OF Judge
Angellottis decision:
The petitioner is held in custody under a
warrant issued by Justice of the Peace on
complaint filed with him, charging the petit
toner with having on the I'd day of Septem-
Der, 1895, in this county, willfully and unlaw-
fully killed male deer, contrary to the provl-
sions of ordinance 81 of the Board OF Super
yfsors OF Marin County, and seeks to be dis
charged from such custody on habeas corpus
on the ground that the facts stated in the COM
plant do not constitute public offense.
The complaint does not charge a ppblic
law makes it misdemeanor Tor one to kill
male deer in the State of California between
the 18th day of October and the 10Th day of
July of the following year, and for such mis-
demeanor punishment is prescribed by an
other section of the same code,
1t is apparent from The complaint that petit
toner has not violated the provisions of the
Penal Code, and there is no other section of the
State law applicable. 1t is, however, claimed
that the ordinance OF Marin County, referred
to in the complaint, makes the act OF the petit
toner a crime or public offense.
To make an act crime or pubic offense
there must be a law forbidding the act and fix
ing the punishment for the commission there
of. The ordinance, which was enacted July 3,
1894, does not forbid any act, but simply pro-
vides that the closed season as to deer is
changed.
Nor does ordinance 70, of which No. 81 is
amendatory, prescribe any penalty. Hence,
these ordinances fail TO create public offense,
and no provision of the laws of the State can
be held to supply this defect unless it has been
made specially applicable thereto.
The District Attorney contends that the State
law prescribing punishment for a violation
of the provision of section 626 of the Penal
Code applies under this ordinance and that
the violator can be punished under the State
law, and relies on subdivision 29I5, section %,
OF the county government act. The
ordinance cannot be enforced, and is one upon
which public prosecution cannot be main
tanned, and could not operate to suspend any
law of the State
The ordinance in question was, however, not
enacted under the provision of the county
government act, relied on by the District At
torney, but was passed under the apparent
authority conferred by section $50, Penal
Code, as the same was amended in 1887.
The Supervisors, in enaeting the ordinance
in question, followed the letter of this author
ization. 1t is unnecessary to determine the
effect of this authorization from the Legis-
lature, as the provision was stricken out by the
amendments of 1895.
OF course under the constitution any county
may make and enforce such regulations with
out authorization from the Legislature but it
is still true that no such regulation can be
enforced and no public prosecution can be
made and maintained thereon unless punish
ment be prescribed for the violation thereof.
1t is very clear to me that the only regulations
for the protection of game in force in this
county are those made by the general State
laws.
The complaint against the petitioner fails to
state facts sufficient to constitute public
offense and he must be discharged from GUS
tody.
Supervisor Kinsella of San Rafael, speak
ing of the decision yesterday said that, if
the sportsmen desire the extension of the
closed season in conformity with the
county ordinance that has thus been rem
dered invalid, the Board of Supervisors
will be willing to enact another ordinance
similar to that one and incorporate clause
prescribing penalty.
But it cannot be done in time to protect
the game this fall, said Mr.. Kinsella, ''for
we shall not meet until the first Monday
in October for regular business and the
ordinance would not take effect until Octo-
Der is. the date fixed by the general law
for the beginning of the closed season."
District Attorney Martinelli said he was
pleased to have the decision, as there had
been so much misunderstanding of the
matter. He said he was satisfied now that
an ordinance would be passed that will,
settle the future of the matter and serve
the wishes of the sportsmen who desire an
extension of the closed season.
AS the matter now stands the sportsmen
have until October Is to kill male deer il
they so desire, as under the decision of
Judge Angellotti the county ordinance
does not protect the deer between Septem-
Der l and October 49, nor for any other
period of time for that matter.
"
CONGREGATIONAL MEETING.