[3] The question of the power of the state to control or regulate the taking of fish and game and their preservation for the benefit of the people at large has been the subject of many decisions, to only a few of which need we advert.

In Geer v. Connecticut, 161 U. S. 517, 532, the supreme court, by Mr. Justice White (now chief justice), said:

"So far as we are aware, it has never been judicially denied that the government under its police powers may make regulations for the preservation of game and fish, restricting their taking and molestation to certain seasons of the year, although laws to this effect, it is believed, have been in force in many of the older states since the organization of the federal government. . The ownership being in the people of the state, the repository of the sovereign authority, and no individual having any property rights to be affected, it necessarily results that the legislature, as the representative of the people of the state, may with hold or grant to individuals the right to hunt and kill game or qualify or restrict, as in the opinions of its members will best subserve the public welfare. Stated in other language, to hunt and kill game is a boon or privilege, granted either expressly or impliedly by the sovereign authority-not a right inherent in each individual, and consequently nothing is taken away from the individual when he is denied the privilege at stated seasons of hunting and killing game. It is, perhaps, accurate to say that the ownership of the sovereign authority is in trust for all the people of the state, and hence by implication it is the duty of the legislature to enact such laws as will best preserve the subject of the trust and secure its beneficial use in the future to the people of the state. But in any view, the question of the individual enjoyment is one of public policy and not of private right."

It was held, in State v. Hume, 95 Pac. Rep. 808, 810 (Oregon), that migratory fish in the navigable waters of a state, like game within its borders, are classed as animals ferae naturae, the title to which, so far as title can be asserted before possession, is in the state in trust for all its citizens and that the legislature may enact such laws as tend to protect the species from injury by human means and from extinction by exhaustive methods of capture. In Smith v. State, 155 Ind. 611. 51 L. R. A. 404, 406, it was said: "The individual has no natural right to take game, or to acquire property in it, and all the right he possesses or can possess in this respect is granted him by the state." In State v. Hume it was further said: "The unrestricted taking, from navigable streams, of fish that are valuable for food, usually causes their extermination, to prevent which, and to afford time and opportunity for an increase of the species, laws have been passed limiting the time and manner, or temporarily prohibiting the catching of them, which enactments have been upheld as legitimate exercise of the police power, employed by a state to protect the welfare of all its citizens." Similar views were expressed in Sherwood v. Stephens, 90 Pac. Rep. 345. In Morgan v. Commonwealth, 35 S. E. (Va.) 448, 449, a license tax for the privilege of fishing in the waters

belonging to the state was upheld as not in violation of the state or national constitution. "If," said the court, "the state has a right to require a license tax of merchants and others cngaged in business upon their own capital, it certainly has the right to require a license tax of those carrying on their business as do the fishermen mentioned in the statute". In State v. Hanlon, 82 N. E. (Ohio) 663, 664, it was said:

"In the present case the section under review is one of the sections of an act entitled: 'An act for the further and better protection of fish and game.' If the true purpose and object of this act is expressed in its title, as would seem apparent from a consideration of the other provisions of said section, one of which is, 'All fees required to be paid hereunder shall be paid to the president of the commissioners of fish and game, and by him paid into the state treasury to the credit of a fund, which is hereby appropriated, for the purpose of propagating, protecting and preserving the fish in the waters of Lake Erie'-then certainly the imposition, for such purpose, of a license fee upon all persons who engage in the business of fishing with nets in the waters of Lake Erie, is a proper exercise of legislative power."

Of the police power, Freund on Police Power, page 19, says: "The police power is the power to restrain common rights of liberty to property. When it is sought to exercise rights which are not common or fundamental, still more when special privileges are asked, the state may grant the required permit or license upon such conditions as it pleases, without observing the limitations which otherwise hedge about the exercise of the police power." The restrictions upon the right to fish and pursue game are given among other "conspicuous illustrations" of the exercise of power respecting cases of qualified property.

That the imposition of a license tax of $10 per annum for the privilege of fishing in the waters of the state for profit is a reasonable tax we are satisfied. The food fishes caught in those waters have an annual value running into millions of dollars and furnish the means of livelihood to thousands of our citizens. Large sums are expended annually by the state to maintain the propagation of our food fishes and to prevent the decrease of the supply. It is but fair that those who profit by these laudable and paternal efforts of the state should contribute something towards their cost, and this license tax is, from the nature of the business, the only tax which can be imposed to aid in the protection of this important industry.

We think also that the imposition of this license has a tendency to protect the fish and prevent their extermination, and the constitution expressly authorizes the legislature to "enact laws for the protection of fish". (Sec. 252, art. IV.)

The writ is denied.

We concur:

HART, J.

BURNETT, J.

CHIPMAN, P. J.

Civil No. 1520. Second Appellate District. April 17, 1914. R. M. BAKER, Plaintiff and Appellant, v. EILERS MUSIC COMPANY, Defendant and Respondent.

[1] APPEAL-JUDGMENT-DELAY IN FILING TRANSCRIPT-PENDENCY OF MOTION FOR NEW TRIAL-APPEAL NOT DISMISSIBLE.-An appeal from a judgment will not be dismissed for failure to file the transcript within time, where a motion for a new trial is pending. notwithstanding a delay of fifteen months in the settlement of the proposed bill of exceptions.

Motion to dismiss appeal from a judgment of the Superior Court of Los Angeles County-J. P. Wood, Judge.

For Appellant-L. M. Fall.

For Respondent-Frank Bryant.

The only grounds presented which require discussion in ruling upon this motion to dismiss the appeal of plaintiff from the judgment are, that the appellant has failed to file any transcript within the time allowed by law, and has failed for fifteen months to prosecute the appeal.

The judgment was entered on October 18, 1912, and notice of appeal was filed in the office of the clerk of the superior court on December 16, 1912. At all times from November 2, 1912, until March 5, 1914, there was pending a motion for a new trial of the action, and incidental thereto, the settlement of a proposed bill of exceptions. On March 5, 1914, the court below disallowed the bill of exceptions and denied the motion for a new trial.

Rule II of this court, after stating the general rule requiring that a transcript be served and filed by the appellant in a civil action within forty days after the appeal is perfected, says: "If a proceeding is pending for the settlement of a bill of exceptions or statement which may be used in support of such appeal, the time aforesaid shall not begin to run until the settled and authenticated statement or a bill of exceptions has been filed. When a party appealing from a judgment has given notice of motion for a new trial before perfecting said appeal, the time aforesaid shall not begin to run until the motion for a new trial has been decided, or the proceeding therefor dismissed."

[1] We need not take into consideration the reasons for the delay which occurred in the court below in the proceedings relating to the motion for a new trial. The respondent has not shown by the record any facts establishing its claim that the appeal is not made in good faith, and we are deciding this matter without reference to the affidavit filed by appellant's attorney. According to the plain language of the rule, as applied to the facts shown in the clerk's certificate filed herein, the time for filing the transcript did not begin to run until March 5, 1914. We have examined the decisions referred to by respondent, which relate to motions to dismiss appeals on account of failure to file transcript, where it appeared that the appellant did not take steps within a reasonable time to secure the settlement of a bill of exceptions. In those cases there was not pending any motion for a new trial, and the facts showing

an unreasonable delay or practical abandonment of the proceedings for settlement of bill of exceptions were clearly apparent on the record. The cases referred to are: Depeaux v. Peck, 118 Cal. 522;

Moultrie v. Tarpio, 147 Cal. 376.

The motion to dismiss the appeal is denied.

We concur:

JAMES, J.
SHAW, J.

CONREY, P. J.

Civil No. 1521. Second Appellate District. April 17, 1914. R. M. BAKER, Plaintiff and Appellant, v. EILERS MUSIC COMPANY, Defendant and Respondent.

Motion to dismiss appeal from a judgment of the Superior Court of Los Angeles County-J. P. Wood, Judge.

For Appellant-L. M. Fall.

For Respondent-Frank Bryant.

BY THE COURT.

The facts presented upon this motion are in all respects similar to those under consideration in case No. 1520, Baker v. Eilers Music Co., in which the motion to dismiss appeal was denied. For the reasons stated in the opinion filed in that case, the motion of respondent for an order dismissing the appeal herein is denied.

Civil No. 1498. Second Appellate District. April 17, 1914. WM. O. HOOD, Petitioner, v. GEO. C. MELROSE, Recorder of the City of Tropico, Respondent.

[1] MUNICIPAL CORPORATIONS-FIRE ORDINANCE-PROHIBITION OF ERECTION OR REMOVAL OF SHAKE HOUSES WITHOUT MUNICIPAL PERMISSION-VIOLATION OF ORDINANCE-PLEADING-COST OF REMOVAL OR CONSTRUCTION-UNNECESSARY ALLEGATION.-A complaint charging the violation of a municipal ordinance in moving and constructing or attempting to move and construct a shake house within the limits of the municipality without first procuring a permit from the city trustees, does not fail to charge a public offense in not alleging that the cost of the removal or construction exceeded the sum of twenty dollars, where the ordinance prohibits the erection removal of such structures without regard to the value thereof.

or

[2] ID.-ID.-ID.-ID.-ID.-ALTERNATIVE AVERMENT-DEFECT NOT AVAILABLE ON CERTIORARI.-A complaint for the violation of such ordinance which charges the defendant with moving and constructing or attempting to move and construct such a house, does not show a defect available upon certiorari proceedings.

[3] ID. TITLE OF ORDINANCE-SINGLE SUBJECT-CONSTITUTIONAL PROVISION INAPPLICABLE.-The constitutional provision that acts of the legislature shall embrace but one subject has no application to municipal ordinances.

[4] ID.-FIRE ORDINANCE-CONSTRUCTION AND REMOVAL OF INFLAMMABLE STRUCTURES-) -PERMISSION OF TRUSTEES-DISCRETIONVALID ORDINANCE.-A municipal ordinance which prohibits the erection, removal or repair of any tent, tent-house, cloth or shake house within the municipal limits except upon permission granted by

the board of trustees of the city, is not invalid, because of the discretion vested in the trustees to refuse or grant such permit.

[5] ID. CONVICTION OF VIOLATION OF CITY ORDINANCE—JUDGMENT OF RECORDER'S COURT-CERTIORARI IMPROPER REMEDY.-Certiorari will not lie to review the judgment rendered by a recorder's court of a municipality convicting a person of the violation of an ordinance of the municipality, but the remedy is by appeal to the superior court.

Application for a Writ of Review.

For Petitioner-Frederick M. Hall, Frank L. Muhleman, Wirt C. Smith.

For Respondent-Frederick Baker.

In response to a writ of certiorari issued by this court and directed to respondent as recorder of the city of Tropico, the proceedings had and taken in the recorder's court presided over by respondent in a certain action wherein petitioner was convicted of the violation of a city ordinance, have been transmitted to this court for review.

The city of Tropico is a municipal corporation of the sixth class, empowered, among other things, (1) "to pass ordinances not in conflict with the constitution and laws of this state, or of the United States"; (16) "to establish and maintain fire limits and regulate building and construction and removal of buildings within the municipality". Pursuant to such power the board of trustees adopted an ordinance prescribing certain rules and regulations for control in the construction and removal of buildings, and fixing a penalty for the violation thereof. This ordinance provided for the appointment of a building inspector, who was authorized to issue permits for the construction, repair and removal of buildings, upon the applicant therefor complying with the rules and regulations prescribed by the ordinance; and by section 2 thereof declared it unlawful for any person to commence or proceed with the erection, alteration, removal, etc., of any such structure or building exceeding twenty dollars in cost, unless a permit so to do be first obtained from said building inspector. Section 19 of the ordinance further provided: "It is hereby declared to be unlawful for any person, firm or corpora tion, within the limits of the city of Tropico, except upon a written permit granted by the Board of Trustees of the city of Tropico, and then only at the place specified in such permit, to build, construct or erect any tent, tent-house, cloth or shake house, cloth or shake building or structure, or California house, or repair the same or to construct any addition thereto, or to remove any such tent, tent-house, cloth or shake house, building or other structure, to any location in said city of Tropico, or to cloth or paper, in whole or in part, any room except such room be first ceiled with board and such cloth be tightly stretched thereon; or to construct or extend through the walls, windows or roofs of any building or structure, a stovepipe or tiling, for use as a chimney or flue."

On July 21, 1913, a complaint was filed in the recorder's court charging petitioner with the violation of said ordinance