In re Marshall

• Decision Date: 16 May 1900
• Docket Number: 12,897.
• Citation: 102 F. 323
• Court: U.S. District Court — Northern District of California
• Parties: In re MARSHALL.

102 F. 323

In re MARSHALL.

No. 12,897.

United States Circuit Court, N.D. California.

May 16, 1900

Bishop & Wheeler, for petitioner.

Hugh J McIsaac and E. B. Martinelli, for respondent.

ROSS Circuit Judge.

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 repeating 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 that 'any person violating any provision of this ordinance shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment in the county jail for not less than ten days or more than thirty days, or pay a fine of not less than twenty dollars or more than two hundred dollars, or by both such fine and imprisonment. A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied, specifying the extent of imprisonment, which must not exceed one day for every dollar of the fine.' The complaint upon which the petitioner was prosecuted, and on which his conviction rests, charges, in substance, that on the 12th day of January, 1900, he did in the county of Marin, state of California, use a repeating shotgun for the purpose of killing quail and blue jays, and did on that day and in that county shoot and kill with a repeating shotgun one quail and one blue jay, contrary to the provisions of the seventh section of the ordinance mentioned. A judgment of imprisonment having followed the conviction, the petitioner seeks his discharge from custody under that judgment by means of a writ of habeas corpus, on the ground that the judgment and his imprisonment thereunder are in contravention of provisions of the constitution of the United States, and therefore void.

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 God, 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. Guns 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.

105 'that no person shall be deprived of property without due process of law, may be violated without the physical taking of property for public or private use. Property may be destroyed, or its value may be annihilated. It is owned and kept for some useful purpose, and it has no value unless it can be used. Its capability for enjoyment and adaptability to some use are essential characteristics and attributes without which property cannot be conceived, and hence any law which destroys it or its value, or takes away any of its essential attributes, deprives the owner of his property. ' See, also, Pumpelly v. Green Bay Co., 13 Wall. 177, 20 L.Ed. 557; Wynehamer v. People, 13 N.Y. 398; People v. Otis, 90 N.Y. 48. To deprive the petitioner of the use of the gun in question is therefore to deprive him of his property. Not only so, but, if Marin county may lawfully prohibit the use of such a gun, every other county within the state of California may, as...