Smith v. State

Hadley, J.

— Appellant was convicted before a justice of the peace, under §2209 Bums 1894, §2107 Horner 1897, which reads as follows: “Whoever shoots or destroys * * * or has. in his possession any quails * * * during the period from the first day of Tanuary of any year to the tenth day of November of .the same year, * * * shall be fined,” etc., upon an affidavit charging him with having in his possession on the 5th day of February, 1900, one quail. Upon appeal to the criminal court the appellant, having pleaded not guilty, was again convicted and fined upon the following evidence: “Said defendant admitted in open court that on the 5th day of February, 1900, he did have in his possession, at Marion county, in the State of Indiana, one quail, as charged in the affidavit filed herein, but that said quail had come to his possession on the 30th day of December, 1899, at which time he received it and placed it in his refrigerator where it had remained from said date continuously until said 5th day of February, 1900. And this was all the evidence given in the cause.”

Under the assignment of errors the appellant affirms two propositions: (1) The unconstitutionality of the statute, and (2) the guiltlessness of the act proved within the true meaning of the statute. The appellant contends that if the statute is to receive a literal construction, and make guilty one who rightfully receives possession of quail in the permissive season, and becomes vested with the right of property in a wholesome article of food, to compel a disposition of the property by a fixed date, without reference to the use it can be put to, is practical confiscation and violative of the fourteenth amendment of the federal Constitution, which provides that “no state shall make or enforce any law which shall * * * deprive any person of * * * property without due-process of law”, and of §21, article 1., of the State Constitution, which provides that “no man’s property shall be taken by law without just compensation.”

It is important to note that American quails are game birds and as such belong to the State in its sovereign ca-' paeity as the trustee of the citizens in common. Such game is a valuable and wholesome article of food diffused and accessible to all, and its preservation a matter of general interest to the people. The primary object of government is mutual safety and benefit, and to promote these ends it has long been held that the State possesses such police power as enables it to employ drastic measures to protect the public health, morals, safety, and such .other concerns as affect the happiness and general welfare of the citizens. To deny such power is to deprive the government of one of its essential forces. Nor is it apparent how there can exist any real ground of complaint. 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. The power to grant embodies the power to impose conditions; and in granting the privilege of reducing quail to possession, with proprietary right, it is competent for the State to prescribe such conditions of enjoyment as are deemed reasonable and necessary to protect the common interest. The citizen, when he accepts the State’s grant, accepts it impressed with all the restrictions and limitations laid upon it, and when he acquires property under such license he does so with full notice of his qualified right, and so, if he loses that which he has taken or held possession of upon forbidden terms, he has lost nothing that belonged to him, and there has been no taking of property without due process of law or without just compensation.

Quails not only supply a delicate and nutritious food highly valued by the people, but from their wild and agile nature offer alluring sport to hunters, which if unrestrained would probably lead to their ultimate extinction; hence, any measure which in the judgment of the legislature is reasonably calculated to avoid such result and preserve these food birds for future benefit, even to the extent of restricting the use of, or right of possession in the birds after they have been taken, or killed, must be held to be a legitimate exercise of legislative power. State v. Rodman, 58 Minn. 393, 59 N. W. 1098; Phelps v. Racey, 60 N. Y. 10; Haggerty v. St. Louis, etc., Co., 143 Mo. 238, 44 S. W. 1114, 40 L. R. A. 151; State v. Judy, 7 Mo. App. 524.

Other decisions which uphold the validity of such legislation but which turn upon the defense that the game was lawfully acquired outside the state are as follows: Magner v. People, 97 Ill. 320; American Ex. Co. v. People, 133 Ill. 649, 24 N. E. 758, 9 L. R. A. 138; Ex Parte Maier, 103 Cal. 476, 37 Pac. 402; Roth v. State, 51 Ohio St. 209, 37 N. E. 259; Stevens v. State, 89 Md. 669, 43 Atl. 929; Geer v. Connecticut, 161 U. S. 519, 16 Sup. Ct. 600, 40 L. ed. 793.

Decisions of the State sustaining legislation for the protection and preservation of fish rest upon the same principle. See Gentile v. State, 29 Ind. 409; State v. Lewis, 134 Ind. 250, 20 L. R. A. 52.

Upon the second point it is contended that if the law is constitutional, the words “Whoever has in his possession any quails” should not be construed to embrace quails rightfully acquired in the open season, and continuously kept by the owner in his possession to a period within the close season. We must assume that the lawmakers rightfully apprehended the meaning of the words employed by them in stating their intention, and in the absence of some fact relating to the subject-matter legislated upon, or other provisions of the act inconsistent with the ordinary meaning of the language used, we must conclusively presume the meaning to be that which is usually conveyed by the words. To arbitrarily give an unusual meaning to the word would be to change the law, and this we have no power to do. It has long been the policy of the State to preserve its fish and food birds from destruction or immoderate diminution. In 1857 there was passed “An act to provide for the protection of wild game defining the time in which the same may be taken and killed.” Acts 1857, p. 39. In this first act it was provided by section three that it should be unlawful to shoot, trap or net quails and pheasants between February 1st and November 1st of each year, and by section six it was made Unlawful to have in possession any quails or pheasants killed or taken within the prohibited season. It will be perceived that at the beginning of legislation upon this subject the legislature limited the wrongful possession to birds taken or killed within the forbidden season. This act was amended by contracting the permissive season in 1861 and again in 1863. In 1867 the first act, “To provide for the protection of fish, defining the time in which they may be trapped, netted or seined”, was enacted making a violation of the provisions of the act a misdemeanor. Acts 1867, p. 128. At the same session another act was passed entitled “An act to provide for the protection of wild game”. By this act it was made unlawful to shoot or trap quails or pheasants between Eebruary 1st and October 1st, and to net quails at any time, and unlawful to transport quails killed or taken in violation of the act. In 1871 another act “To provide for the protection of fish” was passed. Acts 1871, p. 24. And in 1877 still another act “To provide for the protection of wild game”, by which act the netting and trapping of quails is absolutely prohibited at all times. Acts 1877, p. 69. Again in 1879 another step was taken by the legislature “To provide for the protection of wild game,” section nine of which act reads as follows: “It shall be unlawful to sell, keep or expose for sale, or have possession of any quail or pheasant between the fifth day of January and the first day of November in any year; * * *. Any person or persons violating the provisions of this section shall be fined $1 for each and every quail, * * * so unlawfully kept, sold, exposed to sale, or possessed.” Acts 1879, p. 242.

Other laws relating to the same subject were passed in 1881. See Acts 1881, p. 218, §§2106, 2112-2115, R. S. 1881, inclusive, prohibiting the destruction of quails, the selling or possession of quails in a particular season, the selling or posession of quails at all times that have not been killed by shooting, the transportation of quails within the State killed or taken in violation of law, and their transportation out of the State at any time.

In 1893 the method of protection was again emphasized by the act set out at the beginning of this -opinion and under which this prosecution is had.

In 1897 there was passed “An act to prevent the destruction of quail” which makes it unlawful to kill any quail for the purpose of sale, or to sell, barter or offer to sell any quail caught or killed in the State.

The enacting clauses of the foregoing laws clearly disclose the general purpose of the State, and the progress made in restrictive measures affirms the inadequateness, in legislative opinion, of previous provisions to accomplish the purpose intended. At the beginning, more -than forty years ago, it was made unlawful to shoot, trap, or net quails between February 1st and November 1st, and to have quails in possession that had been taken or killed in the close season. Next it was made unlawful to shoot or trap them between February 1st and October 1st and to net -them at any time, and, as the next step, trapping wag prohibited altogether. For twenty years it had been a good defense to a charge of wrongful possession to prove that the birds had been taken or killed in the open season, but in 1879 it was made unlawful, not only to sell, but to offer for sale, or have in posses-session, within the close season, any quail, without reference to when killed or acquired. As a further step, in 1881 the right to sell or have quails in possession in the open season was confined to such birds only as had been killed by shooting, and in 1897 the right to sell at any time was wholly denied.

The constantly increasing stringency in repressive measures illustrates the difficulty encountered by the legislature in framing a law that was effective for the protection of quails, and the provision under review, making the act of possession within the close season, ipso facto, a crime, after its adoption in 1879 and its reaffirmance three times in the same words, must be accepted as evidencing legislative opinion that such provision is an essential means of preventing an evasion of the law. As was well said in State v. Rodman, 58 Minn. 393: “What this provision aims at is not the mere fact of possession of game lawfully obtained, but to prevent its being unlawfully taken or killed. If it were permitted to have possession during the closed seasop without limitation of game taken or killed during the open season, it would inevitably result in frequent violations of the law, without the least probability of a discovery. Game is usually found in secluded places, away from habitations of men, with no one to witness the killing but the hunter himself. The game would have no earmarks to show whether it .was taken or killed in the open or close season, and hence conviction under this statute would ordinarily be impossible, and the law would become practically a dead letter. In these days of cold storage warehouses, the mere lapse of time after the expiration of the open season would furnish little aid in an effort to prove that the game had been taken or killed out of season.”

In such misdemeanors the motive is of no consequence. It is the act, and the act only, that constitutes the offense. State v. Engle, (Ind. Sup.) 58 N. E. 698. The simple words are: “Whoever has in his possession .any quail” is guilty. The language is so clear and unambiguous .as to leave no room for construction. How or when the possession was acquired is not made material by the legislature, and we have no power to make it so. See cases above cited.

Judgment affirmed. Jordan, J., dissents.