Defendant, after trial in the Municipal Court of Franklin, was found guilty of (1) the possession of undersized walleye pike and (2) the transportation of walleye pike without a transportation permit, in violation of Sections 1533.63 and1533.301, Revised Code, respectively.
The facts are not in dispute that the defendant purchased 2,757 legal size walleye pike fish in Tilbury, Ontario, Canada, where the legal length is 14 inches, and transported them from Canada, through customs, and the states of Michigan and Indiana into Ohio from where he was intending to resell the fish for stocking purposes. He had no transportation permit, and the legal length for walleye pike in Ohio as fixed in accordance with the provisions of Section 1533.63, Revised Code, by the Chief of the Division of Wildlife is 15 1/2 inches.
Agents of the Wildlife Conservation Department of Ohio stopped defendant in transit to Morrow, Ohio, where he planned to change the water on the fish and hold them for resale anywhere he could find a market, measured the fish, determined they were undersized and confiscated the same.
Defendant contends that, because the fish were legally purchased in Canada and transported through customs and two states, the regulations contained in Sections 1533.63 and1533.301, Revised Code, may not be legally enforced against him and that he is being deprived of his property without due process of law.
The holdings in similar cases of similar regulations in different states and jurisdictions are not uniform. The court has examined all the citations on both sides.
The court must conclude that the police power of the state extends to a proper regulation of the handling of fish although purchased legally outside the state and that Sections 1533.63 and 1533.301, Revised Code, are a proper exercise of that power. The rationale of the exercise of the power to the Division of Wildlife is that it operates as a shield against covert depletion of the local supply, thus tending to effectuate the policy of the law by rendering *Page 185 evasion of it less easy. See Bayside Fish Flour Co. v. Gentry,297 U.S. 422, 80 L. Ed. 772, 56 S. Ct. 513.
The defendant herein testified that he knew of all the legal requirements as to length, permits, etc., and had previously obtained permits in Ohio and other states.
In Roth v. State, 51 Ohio St. 209, the court upheld a statute making it an offense to sell quail out of season although lawfully killed outside the state, and that the statute was constitutional. In Salasnek Fisheries, Inc., v. Cashner, 9 Ohio App.2d 233, the syllabus states:
"1. The ownership of wildlife is in the state, which has the power and duty to preserve it for the benefit of all the people; individual rights therein are limited and are subject to police regulation. To that end, the state may regulate possession of fish and game within its borders, whatever their point of origin.
"2. The state may, in the exercise of its police power, forbid by statute the possession of fish smaller than a specified size, even though legally taken and possessed outside the state and thereafter brought into the state.
"3. In the proper enforcement of state conservation measures, any effect upon interstate commerce is incidental and inconsequential."
Also, see body of opinion at page 235 and citations set forth therein.
We are aware of State v. Euclid Fish Co., 95 Ohio Law Abs. 1, and are able to distinguish it on its facts which involved frozen fish packed in boxes impossible of inspection.
Whatever of harshness in upholding the judgments of conviction herein based on the reasoning and authority contained in the citations, supra, is tempered by the wisdom of the trial court in suspending the fines assessed herein.
The judgments of the trial court are affirmed.
Judgments affirmed.
LONG, P. J., concurs. *Page 186