ness. sion or its representative. A copy of said order shall be served upon said witIf it shall appear to the court that said subpoena was regularly issued by the commission or its representative, the court shall thereupon enter an order that said witness appear before the commission or its representative at the time and placed to be fixed in said order, and testify or produce the required papers, and upon failure to obey said order, said witness shall be dealt with as for contempt of court. [Depositions.] The commission or its representative or any party may, in any investigation or hearing before the commission or its representative, cause the deposition of witnesses residing within or without the state to be taken in the manner prescribed by law for like depositions in civil actions in the superior courts of this state and to that end may compel the attendance of witnesses and the production of documents and papers. History: Enacted February 14, 1872; amended March 11, 1891, Stats. and Amdts. 1891, p. 93; by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 476; Act held unconstitutional, see history, § 5, Pen. C.; Code amendment re-enacted February 12, 1903, Stats. and Amdts. 1903, p. 25; amended May 24, 1915, Stats. and Amdts. 1915, p. 820; June 1, 1917, Stats. and Amdts. 1917, p. 1524. In effect July 31, 1917. FISH COMMISSIONER-AUTHORITY AND DUTIES. 1. Authority of state. 2. Implied obligation to maintain fishways. 3. Review of conviction. Running waters 1. Authority of state. of state are public property. One who obstructs them obstructs them under license or permission from state, but only upon such conditions as to their use as the state may impose, and state may impose such conditions as it may see fit.-Schaezlein v. Cabaniss, 135 Cal. 466, 470, 87 Am. St. Rep. 122, 56 L. R. A. 733, 67 Pac. 755. 2. Implied obligation to maintain adequate fishways for passage of fish from the lower to higher level of such streams and their tributaries rests on persons erecting and maintaining dams for milling purposes in streams of state.-West Point W. P. & L. I. Co. v. State ex rel. Moodie, 49 Neb. 218, 66 N. W. 6. 3. Review of conviction. Petition setting up complaint charging defendant with failing to provide and keep in repair sufficient fishways in dam across stream owned by them, which obstructed waters of such stream, before justice of peace, and conviction thereon, held not to present case for issuance of certiorari to justice of peace to review such judgment.-Taylor v. Hughes, 62 Cal. 38. As to carriers of messages, see Kerr's Cyc. Civ. Code (2d ed.), sections 2161, 2162 and notes. § 637a. KILLING OF BIRDS OTHER THAN GAME-BIRDS. MISDEMEANOR. Every person in the State of California who shall at any time kill or catch, or have in his possession, living or dead, any wild bird other than a game-bird, or who shall purchase, offer or expose for sale, transport or ship within or out of the state, any such wild bird after it has been killed or caught, except as permitted by this act, shall be guilty of a misdemeanor. No part of the plumage, skin or body of any bird protected by this section shall be sold or had in possession for sale, irrespective of whether said bird was captured or killed within or without the state. [Game-birds enumerated.] For the purpose of this act the following only shall be considered game-birds: The Anatidæ, commonly known as swans, geese, brant and river or sea ducks; the Rallidæ, commonly known as rails, coots and gallinules; the Limicolæ, commonly known as shore birds, plover[,] surf birds, snipe, sandpipers, tatlers and curlews; the Gallinæ, commonly known as wild turkeys, grouse, prairie chicken, pheasants, partridges, and quails; and the species of Columbidæ, known as wild pigeons and doves. Al other species of wild birds either resident or migratory shall be considered nongame birds; provided, that the English or European house sparrow, the great horned owl, sharp-shinned hawk, Cooper's hawk, duck hawk, butcher bird, bluejay, housefinch, commonly known as the California linnet, are not included among the birds protected by this act; and provided, further, that in fish and game district one, in fish and game district two and fish and game district three the blackbird is not included among the birds protected by this act; provided, further, that nothing in this section shall prohibit the killing of a robin, or other wild bird by the owner or tenant of any premises where such bird is found destroying berries, fruit or crops growing on such premises, but the birds so killed shall not be shipped or sold; and nothing in this act shall prevent a citizen of California from taking or keeping any wild nongame bird as a domestic pet if such bird shall not be sold or offered for sale, or transported out of the state, a permit to keep the same having first been obtained. from the state board of fish and game commissioners. History: Enactment approved March 23, 1901, Stats. and Amdts. 1900-1, p. 573; amended March 18, 1905, Stats. and Amdts. 1905, p. 1014; March 21, 1907, Stats. and Amdts. 1907, p. 762, Kerr's Stats. and Amdts. 1906-7, p. 538; April 16, 1909, Stats. and Amdts. 1909, p. 935; May 18, 1917, Stats. and Amdts. 1917, p. 656. In effect July 27, 1917. Note: The Code Commission enacted a section which they numbered § 637a, prohibiting injuring, destroying, or obstructing fish-ways or fish-ladders, but the act was held unconstitutional, see history, § 5, Kerr's Cyc. Pen. C., also, ante, § 171a. § 637b. APPLICATION OF PROHIBITION. The provisions of this chapter prohibiting any person from having in his possession any fish or game or parts thereof at any time, or during the seasons herein specified, shall, unless express provisions be made herein to the contrary, apply to all such fish or game or parts thereof, whether the said fish or game or the fish or game from which the parts were taken were caught or killed in the state of California, or the said fish or game or parts thereof were shipped into this state from any other state, territory or foreign country. History: Enacted March 21, 1907, Stats. and Amdts. 1907, p. 762, § 637c. SEALS AND SEA-LIONS IN SANTA BARBARA CHANNEL. PRESERVATION OF. Every person who shoots or otherwise kills, destroys, wounds, maims, takes, captures or cripples, by seines, set-nets, nets, traps, nets [sic] or any other kind of fixed, permanent or loose trap or contrivance, any seal or sea-lion in the waters of the Santa Barbara channel, or on, near or about any lands adjacent thereto, is guilty of a misdemeanor, and upon conviction thereof is punishable by a fine of not less than one hundred dollars or by imprisonment in the county jail not less than sixty days, or by both such fine and imprisonment; provided, that the state fish commission may grant permission to any person whom it deems fit, to kill, trap, net, or capture alive, seals or sea-lions for scientific or exhibition purposes, the number allowed to be killed or captured to be specified in said permit. History: Enacted March 13, 1909, Stats. and Amdts. 1909, p. 326. § 637d. SHIPPING RESIDENT OR MIGRATORY NON-GAME BIRDS, PROHIBITED. Every person or corporation acting as a common carrier, its officers, agents or servants, who shall ship, carry, take or transport whether within or beyond the confines of the state any resident or migratory non-game bird, except as permitted by this code, shall be guilty of a misdemeanor. History: Enacted April 16, 1909, Stats. and Amdts. 1909, p. 936. § 637e. CERTIFICATE GIVING RIGHT TO TAKE BIRDS, ETC., FOR SCIENTIFIC PURPOSES. Sections six hundred and thirty-seven a, six hundred and thirty-seven c, and six hundred and thirty-seven d, shall not apply to any person holding a certificate giving the right to take birds, their nests or eggs for scientific purposes only, as hereinafter provided. Certificates may be granted by the board of fish commissioners to any properly accredited person permitting the holder thereof to collect birds, their nests or eggs for scientific purposes only. All certificates authorized by this act shall expire on the 31st day of December of the year issued, and shall not be transferable. On proof that the holder of such certificate has killed any bird, or has taken the nest or eggs of any bird for other than strictly scientific purposes his certificate shall become void, the birds, nests or eggs collected under such certificate shall be forfeited, and shall be delivered by the board of fish commissioners to some public museum of natural history in the state, and the holder of the certificate shall be guilty of a misdemeanor. History: Enacted April 16, 1909, Stats. and Amdts. 1909, p. 936. § 637f. NEEDLESSLY TAKING OR DESTROYING, ETC., NESTS OR EGGS. MISDEMEANOR. Every person who shall with the State of California take or needlessly destroy, or attempt to take or destroy, the nests or eggs of any wild bird protected by this code, or have such nests or eggs in his possession, except as permitted by this code is guilty of a misdemeanor. History: Enacted April 16, 1909, Stats. and Amdts. 1909, p. 936. § 6372[g]. PREDATORY ANIMALS. [WHAT ARE.] Where the words "predatory animals" occur in this chapter, the following animals only shall be considered predatory animals: The order Insectivora (moles, shrews), the family Canidae (wolves, coyotes, foxes), the family Procyonidæ (ringtail cats, coons), the family Mustelida (martins, fishers, wolverines, weasels, minks, skunks, badgers), the family Felidae (cougars, wild cats, jack rabbits), the order Rodentia (rats, mice, gophers), except the families Seuirida and Petauristida (tree squirrels, flying squirrels), the black-tailed jack rabbit of the order Lagomorpha; the cottontail rabbit and the brush rabbit of the family Leporidæ in fish and game districts four, nineteen and twenty-one; and the following species of birds: blue jays, English or European house sparrow, great horned owl, sharp-shinned hawk, Cooper's hawk, duck hawk and house finch, commonly known as California linnet. History: Enactment approved April 14, 1915, Stats. and Amdts. 1915, p. 68; amendment approved April 9, 1917, Stats. and Amdts. 1917, p. 44; amendment approved May 18, 1919, Stats. and Amdts. 1919, p. 719. $ 638. CHAPTER II. OF OTHER AND MISCELLANEOUS OFFENSES. Neglect or postponement of tele- § 650. Sending letters threatening to expose graphic or telephonic messages. $639. Employee using information contained in telegraphic or telephonic mes- another. $650. Seriously injuring persons or property, etc. A misdemeanor. Exposure of paroled prisoners, etc., prohibited. § 650a. § 640. Clandestinely learning contents of telegraphic or telephonic messages. § 651. $ 652. § 653. § 653 $ 653b. § 653c. § 646. Aiding apprentices to run away, or § 647. Vagrants, who are. Penalty. § 653d. § 648. § 649. Issuing, or circulating paper money. Requiring wards or apprentices to failing to attend parade, obey or- Member of national guard failing to § 653e. Blacklisting former employees pro- $ 654. [Supplanted by § 653b.] § 638. NEGLECT OR POSTPONEMENT OF TELEGRAPHIC OR TELEPHONIC MESSAGES. Every agent, operator, or employee of any telegraph or telephone office, who wilfully refuses or neglects to send any message received at such office for transmission, or wilfully postpones the same out of its order, or wilfully refuses or neglects to deliver any message received by telegraph or telephone, is guilty of a misdemeanor. Nothing herein contained must be construed to require any message to be received, transmitted, or delivered, unless the charges thereon have been paid or tendered, nor to require the sending, receiving, or delivery of any message counseling, aiding, abetting, or encouraging treason against the government of the United States or of this state or other resistance to the lawful authority, or any message calculated to further any fraudulent plan or purpose, or to instigate or encourage the perpetration of any unlawful act, or to facilitate the escape of any criminal or person accused of crime. History: Enacted February 14, 1872, founded on § 4 Act April 18, 1862, Stats. 1862, p. 289; amended by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 477, act held unconstitutional, see history, 5, ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 690. § 639. EMPLOYEE USING INFORMATION CONTAINED IN TELEGRAPHIC OR TELEPHONIC MESSAGES. Every agent, operator, or employee of any telegraph or telephone office, who in any way uses or appropriates any information derived by him from any private message passing through his hands, and addressed to any other person, or in any other manner acquired by him by reason of his trust as such agent, operator, or employee, or trades or speculates upon any such information so obtained, or in any manner turns, or attempts to turn, the same to his own account, profit, or advantage, is pun ishable by imprisonment in the state prison not exceeding five years, or by imprisonment in the county jail not exceeding one year, or by fine not exceeding five thousand dollars, or by both such fine and imprisonment. History: Enacted February 14, 1872, founded on § 3 Act April 18, 1862, Stats. 1862, p. 289; amended by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 477, act held unconstitutional, see history, § 5, ante; amendment re-enacted March 21, 1905, Stats. and Amdts. 1905, p. 690. § 640. CLANDESTINELY LEARNING CONTENTS OF TELEGRAPHIC OR TELEPHONIC MESSAGES. PENALTY. Every person who, by means of any machine, instrument, or contrivance, or in any other manner, wilfully and fraudulently, or clandestinely taps, or makes any unauthorized connection with any telegraph or telephone wire, line, cable, or instrument under the control of any telegraph or telephone company; or who wilfully and fraudulently, or clandestinely, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any telepgrah or telephone. wire, line, or cable, or is being sent from, or received at any place within this state; or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained; or who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, to cause to be done any of the acts or things hereinabove mentioned, is punishable as provided in section 639. History: Enacted February 14, 1872, founded upon § 6 Act April 18, 1862, p. 289; amended by Code Commission March 16, 1901, Stats. and Amdts. 1900-1, p. 477, act held unconstitutional, see history, § 5 Pen. C. Commission amendment re-enacted March 21, 1905, Stats. and Amdts. 1905, p. 691; amended April 26, 1915, Stats. and Amdts. 1915, p. 210. In effect August 8, 1915. 38. Oklahoma. 39. Rhode Island. 41, 42. Virginia. 43. Washington. 45, 46. Rule of construction in this state. As to disclosing contents of telegraph or telephone message, see, ante, section 619 and note. As to opening telegraph or telephone message, see, ante, section 621. I. INTRODUCTORY STATEMENT. 1. In general.—It is not the province of a legal editor to take cognizance of every "point" a resourceful attorney may present, or of every question an ill-advised criminal prosecution may raise. But in those cases in which a great fundamental principle of the law is involved.-and especially where the exact point presented has not been decided directly or indirectly by any of the courts in this state, or of any other state, for that matter,-an editor is justified in presenting the fundamental principles and authorities which do, or should, govern |