Lead Opinion
— 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 * * *
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
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.
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
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 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 prevent
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.
Dissenting Opinion
Dissenting Opinion.
— I can not concur in the majority opinion in this case so far as it in effect holds that the possession of the quail by the appellant, under the facts, was a penal offense in the meaning and spirit of the statute in controversy. The admitted facts conclusively show that the quail in question had come into the possession of the accused on the 30th day of December, 1899, the same being a day
This act, under its provisions, neither assumes nor professes to deal with or to have any reference or application to quails which were lawfully taken and reduced to possession by the taker during the open season. From my view of the law it would certainly appear to be a very harsh and unreasonable interpretation of this statute to hold that the legislature thereby intended to make the possession of quail, when such possession was lawful at the taking, a criminal offense by the mere lapse of time, or, in other words, that a continuation of such possession over into the close season should constitute a crime. In the absence of an express declaration to that effect, can it be asserted that the legislature intended, by this statute, not only to make the possession of quails killed or taken during the forbidden time an unlawful act, but, under its provisions, it was intended to go further, and trace, if necessary to constitute the offense, the possession of such game back into the open season, and forbid, under a penalty, a continuation of such possession over into the close season ? Before a judgment of a court in
It is a well settled canon in respect to the construction of laws that where the language of the legislature is fairly susceptible of two meanings, the one which excludes or prevents consequences which are mischievous and unjust will be preferred and adopted by the court. In fact, statutes are not always, nor should they be, literally construed. Donnell v. State, 2 Ind. 658; Hooper v. State, 56 Ind. 153. The rule is well settled that in the construction or interpretation of a criminal statute all reasonable doubt which may arise in respect to its meaning must be resolved in favor of the person accused thereunder.
I recognize the rule of the law which affirms that the title or right to all animals, birds, fowls, or fish, ferae naturae is held by the State, the sovereign power, in trust for the benefit of all the people of the State, and that the latter, by its legislature, may impose such conditions, regulations, or restrictions as may be deemed proper or necessary in respect to the taking or having in possession any of such animals, birds, fowls, or fish, and that he who acquires the ownership or possession, under such imposed conditions, regulations, or restrictions, will be held to be subject thereto, and his title or right of possession will be controlled thereby.
A statute of the state of Maine prohibited, under penalty, the hunting or killing of deer between the 1st of January and the 1st of October. By this act it was also made an offense for any person to carry or transport the carcass or hide of any deer during the prescribed close period. One Young was prosecuted under the statute for transporting on February 17, 1883, the carcasses of two deer. It was shown by the evidence that he killed ‘and came into the possession of one of the animals in the state of Maine on the 30th day of the previous December, and of the other animal on the 31st day of the same month; that the carcasses of the deer were taken by him from the place where he had killed them in that state to his own home, and there remained until February 17th following, and then transported by him to the railroad station to be shipped by rail to Boston, Massachusetts, for the purpose of sale. The case was appealed to the supreme court of Maine. See Allen v. Young, 76 Me. 80. In deciding the question as therein involved, which was identical with the one in issue in the
In the case of the State v. McGuire, 24 Ore. 366, 33 Pac. 666, 21 L. R. A. 478, the defendant was prosecuted, under a statute of that state, for having in his possession certain fish during the period when the law made it unlawful for any person to receive or have any such fish in his possession. The defendant offered to prove,- as a defense to the prosecution, that the fish in controversy had been lawfully caught in the open season and belonged to fish dealers in the city of Portland and had been by such dealers placed in his possession only for the purpose of cold storage. It was held in that case that by reason of the fact that the fish were caught in the open season, the possession thereof thereafter
In the case of People v. O’Neil, 71 Mich. 325, 39 N. W. 1, the defendant was accused of having in his possession, in violation of a statute of the state of Michigan, a number of quail in the month of April, 1888, this latter month, under the law, being within the close season in that state. The evidence established that he had purchased these birds in the state of Missouri and had received them into his possession in the month of December, 1887, this latter month being within the open season in' the state of Michigan. The su
Commonwealth v. Wilkinson, 139 Pa. St. 298, 304, 21 Atl. 14; James v. Wood, 82 Me. 173, 19 Atl. 160, 8 L. R. A. 448; Commonwealth v. Hall, 128 Mass. 410, also sustain the doctrine asserted and adhered to, in the cases from which I have quoted. It can not be said that there is any real merit in one of the reasons given for the construction placed upon the statute by the majority opinion, which reason is to the effect that such a construction is necessary in order to prevent an evasion of the law, or, in other words, to enable the State more successfully to secure convictions thereunder. That is a question more properly for the consideration of the legislature.
Under the holding in the prevailing opinion, the hunter who kills any quail on December 31st, the end of the open season, intending to eat them at his New Year’s dinner, will discover that he is in a position of peril. He will be compelled either to eat the birds on the day he killed them, cremate them, or in some other manner destroy them, or, at least, he must in some way rid himself of their possession ere the clock strikes the hour of midnight, otherwise if he continues the possession of the birds over until the beginning of the next day he will be a violator of the law and liable to be subjected to its penalty.
In many of the cases cited in the majority opinion, the legislature appears, in the particular statute, by some provision to have emphasized its intention to make the law apply to and include game, without regard to the question as to when, where, or how the same had been killed, taken, or received.
Without further commenting upon the question, I am convinced that the conviction of the appellant in the trial court, under the facts, was wrong, and that the judgment ought to be reversed.