On the Merits.
[4] Act 189, p. 302, of 1910 authorizes the leasing of the oyster lands of the state, and allows a certain percentage of the natural oyster reefs to be included in each lease. Section 18 of the act provides:
“It shall be unlawful for any person to knowingly or willfully take oysters, * * * or eultch, bedded or planted by a lessee under this act, or any oysters deposited by such lessee” under this act.
Section 24 makes any violation of the act a crime.
The indictment against defendant charges him with having feloniously taken and carried away oysters of the value of $5 of the goods and chattels of the Pelican Lake Oyster & Packing Company from grounds leased by the state to said company where oyster shells and cultch had been planted, bedded, and deposited by said company. In other words, it charges a violation of said statute, and also charges larceny.
This including in one count of two offenses requiring different punishments was not objected to.
As we understand, the defendant and a great number of other oyster fishermen went together and took the oysters openly, for the purpose of testing the right of the state to *1076confer upon one or more persons the exclusive right to take oysters from the natural oyster reefs.
The bill of exceptions No. 2 shows that the court refused to hold that in order to show a violation of said Act 189 the state must prove that the oysters taken had been bedded or planted by the said lessee, and refused also to hold:
That “the defendant, claiming an inalienable right, could not be held guilty,” and that, “when the defendant is shown to have an equitable right, he cannot be held before the court as a criminal, but the question at issue must be determined by civil action on the part of the person alleged to have been injured.”
The said statute does not make it an offense to take oysters from a natural oyster reef, but only such oysters as may have been bedded or planted by a lessee. Proof that the oysters taken by the defendant had been so bedded or planted was therefore necessary to be made. The failure so to have held is reversible error.
[5] By the other above-recited legal proposition which the trial court refused to hold, we understand the defendant’s learned counsel to have asked the court to hold that, if the defendant took the oysters not as a thief, but under a belief of right — in other words, under a bona fide claim of right — his act was not larceny. This proposition is well settled law. 25 Oye. 49. The refusal to hold it is reversible error.
[6] The main point submitted by the learned counsel for defendant, the point for the testing of which, as we understand, the prosecution was provoked, is whether the state has the right to lease the natural oyster reefs, not by way of administration and conservation, but as absolute owner, and for revenue. But the question of whether the state would have this right does not come up in this case, since the state has not, by said Act 189, undertaken to exercise that right, but only to authorize the making of leases by way of conservation and administration, as is shown by section 1 of the said Act 189, which declares that “no one shall hold in fee simple any bottoms,” etc., and section 6, which provides that no more than 20 per cent, of the leased area shall be of natural reefs, and that no lessee shall hold more than 150 acres of natural reefs.
The question presented therefore is whether the state, as trustee for the public in the administration of these oyster reefs and of the adjoining water bottoms fit for the propagation of oysters, may, as an act of intelligent and wise administration, include in the area leased a certain proportion of the natural reefs, and, if so, whether that proportion may be as large as 20 per cent, without ceasing to be mere administration and becoming a disposition dependent for its validity upon perfect ownership. The learned trial judge in that connection said:
“That the- state had and has the power to enact the legislation attached, I think, admits of no serious doubt.
“The game and fish in the state, including shellfish of all kind, belong to the people of the state in their collective capacity, and are held in trust by the sovereign for the benefit of its people.
“The people, acting through their constitutional authority, the state government, can regulate the taking of the game and fish, or they can prohibit entirely the taking, because they can do what they please with their own. The people through their supreme lawmaking power, the Legislature, can make such rules and regulations as they deem proper for the conservation, propagation, and development of their fisheries, and in the exercise of such power can create such state agencies as they think proper and expedient to secure the desired end. Hence they can create commissions to take charge of the fisheries of the state, with power under the law to execute the mandate of the people speaking through their supreme lawmaking authority, the Legislature.
“The Legislature, not the courts, are the judges as to what those regulations shall be; whether wise or unwise is no concern of the courts. The people enact their laws through the medium they have selected as proclaimed in their Oonstitution, the supreme law of the land. The courts merely interpret and enforce such laws.
“The state has the power to lease such part of the natural oyster reefs as it sees fit and *1078necessary for the conservation and development of the oysters of the state.
“The conservation commission or other state agency had the power under the law to select, survey, and set apart the portion of the natural reefs as required by law.
“Their selection cannot be set aside by the court in a criminal prosecution.
“See MCCready v. Virginia, 94 U. S. 395, 24 L. Ed. 248; Manchester v. Mass., 139 U. S. 240, 11 Sup. Ct. 559, 35 L. Ed. 159; Geer v. Connecticut, 161 U. S. 533, 16 Sup. Ct. 600, 40 L. Ed. 793; Plumley v. Mass., 155 U. S. 473, 15 Sup. Ct. 154, 39 L. Ed. 223, 32 L. R. A. 270; 19 Cyc. P. 100 et seq.
“State can parcel out shell fisheries. Manchester v. Mass., 139 U. S. 262, 11 Sup. Ct. 559, 35 L. Ed. 159; Stockton v. Baltimore & N. Y. R. Co. (C. C.) 32 Fed. 9; State v. Shaw, 67 Ohio St. 157, 65 N. E. 875, 60 L. R. A. 481 et seq.
“The notes to this decision are elaborate, and treat exhaustively every phase of the question at bar and fully sustains by citations of federal and state decisions with copious quotations therefrom the power of the state to enact the legislation under consideration.
“See, also, Ingraham v. Wilkinson, 4 Pick. (Mass.) 268, 16 Am. Dec. 342; Martin v. Waddell, 16 Pet. 367, 10 L. Ed. 997; Rogers v. Jones, 1 Wend. (N. Y.) 237, 19 Am. Dec. 493, and notes; McCready v. Virginia, 94 U. S. 391, 24 L. Ed. 248; People v. Lowndes, 130 N. Y. 455, 29 N. E. 751; Commonwealth v. Vincent, 108 Mass. 441; Pollard Lessee v. Hagan, 3 How. 214, 11 L. Ed. 565.
“Map by Commission is conclusive evidence of oyster bedding grounds. Fraser v. State, 112 Ga. 13, 37 S. E. 114; Rogers v. Jones, 1 Wend. (N. Y.) 237, 19 Am. Dec. 493; State v. Morgan, 133 La. 1038, 63 South. 509.”
And in the per curiam to the bill of exceptions No. 2 the learned trial judge said;
“The court makes the same statement of facts in connection with this bill as made in bill No. 1, and adds further that the court in point of fact held that the natural reefs were the property of all the people of the state, and merely held in trust by the state, for the people of the state, for the reasons stated in the written opinion filed herein to which special reference is made in connection with this bill.”
Like our learned Brother, we are not prepared to hold that the lease thus made under and by virtue of the said Act 189 was not purely and simply an act of administration; and, as such, clearly within the powers of the Legislature.
The judgment is set aside, and the case remanded to he tried in accordance with the views herein expressed.
See concurring opinion of O’NIELL, J., 72 South. 741.