Bittenhaus v. Johnston, 66 N.W. 805

Oassoday, O. J.

This is an action of replevin, commenced August 9, 1895, before a justice of the peace in Oshkosh, to recover twelve gill nets, of the value of $60, alleged to have been unjustly taken and detained by the defendants. The defendants answered by way of denials, and justified the seizure and destruction of the nets as fish and game wardens of the. state, under ch. 221, Laws of 1895. On the trial before the justice the plaintiff proved the ownership and value of the nets, and admitted that he had placed the nets in the waters of Lake "Winnebago for the purpose of fishing, and that the defendants were such fish and game wardens. The •defendants admitted that they, as such fish and game wardens, took the nets from such waters and destroyed them. A trial by jury having resulted in a verdict in favor of the defendants, judgment was entered thereon accordingly, from which the plaintiff appealed to the county court. TJpon the trial in that court it was stipulated that the case be decided by the court upon the record certified by the justice; and it was thereupon decided accordingly by that court in favor of the defendants. From the judgment entered therein, in favor of the defendants, and upon the certificate of the trial judge as required by ch. 215, Laws of 1895, the plaintiff (brings this appeal.

Ch. 221, Laws of 1895, appears first on pages 367-896, in-olusive, and again on pages 397-426, inclusive. There are some discrepancies between the chapter as thus first presented and as thus subsequently presented; but they both purport to have been approved and published on the same •day, and they both have the same title, and are numbered the same, and are the same throughout except in certain particulars not material on this appeal, since the portions of the act here involved are the same in both publications. 'Counsel contend that the act in question is unconstitutional .and void upon several grounds.

1. It is claimed that certain clauses of the act are repugnant to the constitutional provisions which declare that: ■“No ... ex post faeto law . . . shall ever be passed.” Const. Wis. art. I, sec. 12. “ No state shall . . . pass any . . . ex post facto law.” Const. IT. S. art. I, sec. 10. “ By an ex post facto law,” said Field, J., “ is meant one which imposes a punishment for an act which was not punishable at the time it was committed, or" imposes additional punishment to that then prescribed, or changes the rules of evidence, by which less or different testimony is sufficient to convict than was then required.” Cummings v. Missouri, 4 Wall. 325, 326. See, also, Medley, Petitioner, 134 U. S. 160 Duncan v. Missouri, 152 U. S. 377. This rule is uniformly recognized in all well-considered adjudications upon the subject. It is equally well settled that a general law for the punishment of offenses, which endeavors by retroactive operation to reach acts before committed, and also provides a like punishment for the same acts in the future, is void only so-far as it is retrospective, and valid as to future cases within the legislative control. Jaehne v. New York, 128 U. S. 189. In the case at bar the act complained of was committed nearly four months after the passage and publication of the law in question, and hence that chapter cannot be regarded as an ex post facto law as to that act. This being so, we are not called upon to determine whether any provision of the chapter was thus retroactive, and hence, to that extent, an ex post facto law.

2. Counsel contend that the law in question is class legis- ‘ lation, and therefore void. This seems to be put on the ground that the act makes certain “regulations for the outlying waters of the state ” (secs. 12-15), and certain other “regulations for the inland waters” of the state (sec. 16), and certain “provisions applying to certain localities or waters only ” (secs. 33-38a); and particularly because “ the waters of Rush Lake ” are thereby “ exempted from the provisions” of the “act relating to regulations upon the methods or times of talcing, catching or killing fish ” (sec. 36). We are referred to no clause of our state constitution which condemns such legislation as class legislation, and we have found none. It certainly does not belong to any of the nine classes of cases in regard to which “ the legislature is prohibited from enacting any special or private laws.” Const, art. IY, sec. 31. The constitutions of some of the states expressly prohibit every kind of local or special legislation. As indicated, such prohibition in this state is only partial. As often said and always conceded, our state constitution is not so much a grant as a limitation of powers; and hence the state legislature has authority to exercise any and all legislative powers not delegated to the federal government nor expressly or by necessary implication prohibited by the national or state constitution. State ex rel. Graef v. Forest Co. 14 Wis. 615; State ex rel. Lamb v. Cunningham, 83 Wis. 146. The law in question is entitled “An act to revise, amend and consolidate the laws of the state relating to game and its preservation, fish and the preservation and propagation thereof.” To legislate intelligently upon such a subject there must be a legislative discretion as to the different kinds of fish and as to the different waters in which they are or may be found. The exercise of such legislative discretion in the instant case does not seem to be condemned as class legislation by any clause of our state constitution.

3. But it is claimed to be class legislation within the meaning of the clause of the federal constitution which declares that “ no state shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Amendm. art. XIY, sec. 1. This clause was clearly intended to prevent hostile discrimination against any individual, or class of individuals, by the statutes of any state. Slaughter-House Cases, 16 Wall. 36; Pembina C. S. M. & M. Co. v. Pennsylvania, 125 U. S. 188; In re Kemmler, 136 U. S. 448. “ Class legislation, discriminating against some and favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if, within the sphere of its operation,, it affects alike all' persons similarly situated, is not within the amendment.” Barbier v. Connolly, 113 U. S. 32. In speaking of that constitutional provision, it was said by Mr. Justice Field that it “ does not prohibit legislation which is. limited either in the objects to wbicb it is directed or by the territory within which it is to operate. It merely requires that all persons subject to such legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.” Hayes v. Missouri, 120 U. S. 71. There is no pretense that the act in question contains any hostile discrimination against any person or any class of persons. True, it makes certain things unlawful, and prescribes certain penalties, forfeitures, and punishments for violations of the law, but they are alike applicable to any and all persons who violate the law. Under the authorities cited, it is very clear that the mere fact that the statute in question is applicable to certain localities and waters, and discriminates between different kinds of fish, does not make it class legislation, within the meaning of the clause of the federal constitution quoted.

1. Among other things, the statute in question provides that “ the powers and duties of such fish and game wardens shall be ... to seize, remove and forthtoith destroy any net, pound or other devic e found i/n the inland waters of this state or in the possession of any person or persons intending, to use the same for fishing, or having removed or being in the act of removing the same from any of the waters where the fishing with nets or devices or the setting of the same is prohibited or illegal under this act, or any law of the state, cund which are declared to be public nuisances.” Sec. 9, subd. 4. “ No person shall be allowed to se,t, place or use any gill, fyke, pound, seine, dip or other net or snare, or trap, in any of the inland waters of the state of Wisconsin for the purpose of catching fish of any variety,” except as therein otherwise provided, and which is not material here. Sec. 16. “ Any net of any kind prohibited by law, while set or found in any waters where such net is prohibited by law from being set or used,” is therein “ declared to be a public nuisance.” Sec. 19, subd. 1. The illegal use of such net contrary to the provisions of the act forfeits the same to the state. Id. subd. 10. It is thereby made the duty of such wardens to destroy the same forthwith, as a public nuisance, “ when found or taken in the unlawful use, ■ and no liability shall be incurred to the owner or to any other person for such destruction.” Sec. 20.

It is conceded that the plaintiff’s nets were seized by the defendants, as such wardens, while they were in such unlawful use, and thereupon forthwith destroyed by them. Counsel for the plaintiff frankly admits that “the only issue involved is the constitutionality of said law.” But, in addition to the grounds stated, they contend that the statute in question is repugnant to that clause of the federal constitution which declares, “ nor shall any state deprive any person of life, liberty or property without due process of law.” Amendm. art. XIY, sec. 1.

“ Due process of law,” said Waite, C. J., “ is process due according to the law of the land. This process, in the states, is regulated by the law of the state.” Walker v. Sauvinet, 92 U. S. 90, 93. In other words, in matters of state jurisprudence the law of the state is the law of the land. “ Legislation is not open to the charge of depriving one of his rights without due process of law, if it be general in its operation upon the subjects to which it relates, and is enforceable in the usual modes established in the administration of government with respect to kindred matters; that is, by process or proceedings adapted to the nature of the case.” Dent v. West Virginia, 129 U. S. 114. “ Due process of law, and the equal protection of the laws, are secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.” Duncan v. Missouri, 152 U. S. 377; Leeper v. Texas, 139 U. S. 462. But neither that provision nor any other provision of the constitution of the United States “ was designed to interfere with the power of the state,: sometimes termed its £ police power,’ to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state,-develop its resources, and add to its wealth and prosperity.” Barbier v. Connolly, 113 U. S. 31; Mugler v. Kansas, 123 U. S. 623; In re Kemmler, 136 U. S. 448; State v. Heinemann, 80 Wis. 253. “The police power of a state is as broad and plenary as the taxing power.” Kidd v. Pearson, 128 U. S. 1.

In the recent case of Lawton v. Steele, 152 U. S. 133, 136 (affirming 119 N. Y. 226), Mr. Justice BeowN, speaking for the court, has, enumerated a great variety of cases which have been sustained under the police power, and adds, “ Beyond this, however, the state may interfere wherever the public interest demands it, and in this particular a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests.” The decision in that case sustained the validity of a statute substantially like the one in question, and it was there held that such seizure and destruction of the nets was a lawful exercise of the police power of the state, and did not deprive the citizen of his property without due process of law; and such decision was put upon the ground that “ it is within the power of a state to preserve from extinction fisheries in waters within its jurisdiction, by prohibiting exhaustive methods of fishing, or the use of such destructive instruments as are likely to result in the extermination of the young as well as the mature fish.”

The plaintiff, having voluntarily put the nets to an unlawful use which made them public nuisances under the statute, is in no position to recover damages from the defendants for having, as public officials, obeyed the law in abating the nuisances by seizing and destroying the nets. Of course, the plaintiff had his right of action to determine whether the nets were or were not in such unlawful use. We must •hold that tbe plaintiff has not been deprived of Ms property without due process of law.

The right to compensation for property destroyed in abating a public nuisance is considered in a note to Orlando v. Pragg (31 Fla. Ill) in 19 ii. B. A. 196.— Bep.

5. The reasons given for holding that the statute in question is not repugnant to the federal constitution in the particulars mentioned make it sufficiently clear that it is not repugnant to that clause of our state constitution which declares that “ every person is entitled to a certain remedy in the laws, for all injuries ” to his property; nor that other clause, cited by counsel, which declares that “no distinction •shall ever be made by law, between resident aliens and citi■zens, in reference to the possession, enjoyment or descent of property.” Const, art. I, secs. 9, 15.

It will be observed that we have confined our opinion to the validity of so much of the chapter in question as is applicable to the particular facts here present, and have carefully refrained from expressing any opinion as to the validity of the act in other respects.

By the Court.— The judgment of the county court of Winnebago county is affirmed.

Case Details

Case Name: Bittenhaus v. Johnston

Court Name: Wisconsin Supreme Court

Date Published: Mar 27, 1896

Citations: 66 N.W. 805; 32 L.R.A. 380; 92 Wis. 588; 1896 Wisc. LEXIS 331

Court Abbreviation: Wis.