While agreeing wholeheartedly with the aims and purposes of Ohio conservation laws, I must dissent from the judgment reached by my colleagues in this case.
The defendant in this case was a marked man from the time he loaded the fish in question upon his trucks in Canada. One of the game agents who testified for the prosecution admitted that Canadian authorities contacted Ohio state authorities, who relayed the information to the witness, to advise that defendant had purchased the walleye pike.
It is significant to me that this witness stated that, when the fish passed through customs into United States, Michigan authorities "did not touch them because of the interstate commerce."
Subsequently, this witness said, "Yes, you could take them through Ohio."
Although it is theorized that these pike spawn in Lake Erie and swim to Lake St. Clair from which body of water apparently they were taken to be sold to defendant, there is absolutely no proof in the record that these were at any time before capture Ohio fish.
We must, then, ask ourselves if they ever became such.
It is uncontroverted that the fish were never unloaded until seizure but always remained in the tanks upon the trucks. The Ohio Legislature contemplated, in enacting Section 1533.301 (A), Revised Code, that fish so contained would not become Ohio fish. In part, Section 1533.301 (A) provides:
"* * * A fish is not to be considered unloaded for purposes of this section if it remains under the control of a common carrier."
It seems clear to this writer that the Division of Wildlife seized these fish on the assumption that they were to be delivered in Ohio.
Let it be understood that there is no quibble with the law cited in the majority opinion, but the case at bar upon its facts not in dispute does not come within the purview *Page 187 of those authorities. Certainly, it is clearly distinguishable from the situation in Salasnek Fisheries, Inc., v. Cashner,9 Ohio App.2d 233, upon which my brothers rely. In the latter case, the fish of illegal size were under control of Ohio authorities because they were packaged and placed for wholesale and retail sale in Ohio.
The conclusion reached by this writer rests upon the facts established and must not be interpreted to forecast what might be the result had the fish been placed in a lake. But, the circumstances under which the seizure in the case at bar was accomplished, coming as it did at 1:30 a. m. upon a public highway at a point relatively close to Ohio's border, with the arresting authorities having full knowledge of the wildlife possessed by the defendant, no warnings having been given defendant before he was interrogated and the fish inspected, nothing having been adduced to rebut his testimony that the fish were never to be taken off the trucks in Ohio and were beyond doubt then in interstate commerce, compel the reversal of the judgment below.
Since 1533.301, Revised Code, under the facts here, provides that no transportation permit was needed by defendant, his conviction of failure to have a transportation permit is contrary to law.
The conviction of defendant of the charge of possession of undersized fish is contrary to law because the seizure thereof constituted an interference with interstate commerce and had no reasonable connection with the conservation of Ohio wildlife.
The fact that the trial judge mitigated the penalty by suspending the fines is of no moment. The convictions are clearly erroneous and should be set aside and the defendant dismissed. *Page 188