70 Neb. 722 | Neb. | 1904
This is a proceeding in error prosecuted from a judgment of the district court for Boone county by D. B. McMahon, W. E. Harvey and P. E. McKillop, who were convicted of having in their possession, contrary to law, certain prairie chickens during the closed season. It is contended first, that the judgment is not sustained by sufficient evidence; second, the defendants Avere found jointly guilty of having in their possession five prairie chickens, and the court imposed a fine of $25 against each defendant, making $75 in all, and it is claimed this fine is excessive; third, it is contended that the act under which the conviction Avas had violates that portion of the constitution which provides, “all penalties shall be proportioned to the nature of the offense”; fourth, that the act is unconstitutional, in that it contravenes the constitutional provision that no act shall contain more than one subject, which shall be clearly expressed in the title; fifth, that the act is in violation of section 2G, article Y, which declares, “No other executive state officer shall be continued or created, and the duties now developing upon officers not provided for by this constitution shall be performed by the officers herein created.”
These objections, so far as necessary, will be considered
A fine of $5 was imposed upon each defendant for each of the five ehickehs found, and it is contended that this is excessive. The settled rule, as we understand, is that, Avhere two or more persons concur in the commission of an
We do not think the objection that the act, in providing for a fine of $5 for each chicken, violates the constitutional provision against excessive fines. The fixing of penalties for the violation of statutes is primarily a legislative function, and the courts hesitate to interfere, unless the fine provided; iov. is so far excessive as to shock the sense of mankind. In Southern Express Co. v. Walker, 92 Va. 59, as also in State v. Rodman, 58 Minn. 393, and in State v. De Lano, 80 Wis. 259, this rule is adhered to. In Minnesota, an offense like that under consideration, in addition to a fine, was punishable by a sentence to the county jail for not less than 10 or more than 30 days for each bird found in possession or under control of the defendant. Discussing the question in State v. Rodman, supra, the court said:
“While the fines imposed are certainly large, yet we can not say that they are excessive in a constitutional sense. A large discretion is necessarily vested in the legislature to impose penalties sufficient to prevent the commission of an offense, and it would have to be an extreme case to warrant the courts in holding that the constitutional limit had been transcended.”
It is next contended that the act is violative of the constitution in that the title contains more than one subject, namely, first, the protection of game, by which is understood quadrupeds; second, the protection of song, insectivorous and other birds. Or, in other words, “song and insectivorous birds, and “deer having horns and antelope having horns” are not cognate subjects. A careful consideration of this objection has led us to the conclusion that it is without merit. It is manifest to us that the
It is finally urged that the act creates a new executive office, and is thereby in violation of the constitutional provision in that regard. The question here raised is identical with that passed upon and settled by this court in many prior decisions. State v. Eskew, 64 Neb. 600; Merrill v. State, 65 Neb. 509. We do not think that a reexamination of the question is called for at this time. It is recommended that the judgment be affirmed.
For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.