288 S.W. 50 | Mo. | 1926
Lead Opinion
An amended information was filed charging that defendant, having procured a hunter's license in Benton County, refused to permit the deputy game-and-fish commissioner to inspect and count the number of quail in defendant's possession on November 10, 1925. The court sustained a motion to quash the information on the grounds that Section 5645, Revised Statutes 1919, is in conflict with the provisions of Sections 11 and 23 of Article 2 of the Constitution of Missouri; that it "deprives the defendant of the equal protection of the law," and because the information does not state facts sufficient to constitute an offense under the Constitution and laws of Missouri. An exception was saved, the defendant was discharged, and the State appealed.
The applicable provisions of the Fish and Game Act (R.S. 1919) are:
"Sec. 5581. Title to birds, fish and game in state. — The ownership of and title to all birds, fish and game, whether resident, migratory or imported, in the State of Missouri, not now held by private ownership, legally acquired, is hereby declared to be in the State, and no fish, birds or game shall be caught, taken or killed in any manner or at any time, or had in possession, except the person so catching, taking, killing or having in possession shall consent that the title of said birds, fish and game shall be and remain in the State of Missouri, for the purpose of regulating and controlling the use and disposition of the same after such catching, taking or killing. The catching, taking, killing or having in possession of birds, fish or game at any time, or in any manner, by any person, shall be deemed a consent of said person that the title of the State shall be and remain in the State, for the purpose of regulating the use and disposition of the same, and said possession shall be consent to such title in the State."
Section 5596 limits the number of quail, etc., that a licensed hunter may kill or have in his possession in any one day or at one time.
"Sec. 5598. License to hunt or fish. — It shall be unlawful for any person after the passage of this article to hunt or fish in this State without first obtaining a license permitting him or her to do so; such license shall be dated when issued and shall authorize the person named therein to hunt and fish during the calendar year of issue, and then subject only to the regulations and restrictions as provided by *1271 law: Provided, no license shall be required to fish in privately owned lakes or ponds where a fee is charged for the privilege of fishing. [Laws 1919, p. 346.]"
"Sec. 5645. Inspection and counting of birds, animals, andgame — penalty. — It is hereby made the duty of every person participating in the privileges of taking or possessing fish, birds, animals, and game, as permitted by this article, to permit the game and fish commissioner or his deputies to inspect, and count such fish, birds, animals, and game, to ascertain whether the requirements of this article are being faithfully complied with. Any person who shall refuse to comply with a demand to permit such inspection and count by any authorized officer of this State, or who shall interfere with such officer or obstruct such inspection or count shall be guilty of a misdemeanor, and upon conviction, shall be fined not less than twenty-five dollars nor more than one hundred and fifty dollars. [Laws 1915, p. 295.]"
It is argued by respondent that Section 5645, supra, is repugnant to the provisions of Sections 11 and 23 of Article 2 of the Constitution of Missouri, that the people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures, and that no person shall be compelled to testify against himself in a criminal case.
In Boyd v. United States,
The Boyd case, supra; State v. Owens,
Section 5581, supra, provides: "The catching, taking, killing or having in possession of birds, fish or game . . . by any person, shall be deemed a consent of said person that the title of the State shall be and remain in the State for the purpose of regulating the use and disposition of the same, and said possession shall be consent to such title." The license issued to the defendant authorized him to *1272 hunt and kill subject to the regulations and restrictions provided by law. Section 5645 makes it the duty of every person participating in the privilege of taking or possessing fish, birds, etc., to permit the game and fish commissioner or his deputies to inspect and count such fish, birds, etc., to ascertain whether the requirements of the article are being faithfully complied with, and imposes penalties for a refusal to permit such inspection and count. The State contends these are reasonable police regulations to prevent evasions of and for the effectual enforcement of the act; that defendant had no interest whatever in the quail that he may have taken; that he simply had a privilege to kill or have in his possession a limited number on any one day; that he accepted his license under the terms, restrictions and limitations of the law, and consented in advance that the game warden might at any time count the quail in his possession and that such inspection and count of the quail in the defendant's possession, so taken and accepted under the provisions of the act, were not an unreasonable search or seizure, but that such requirement was a reasonable and necessary police regulation for the enforcement of the statute.
In Haggerty v. St. Louis Ice Mfg. Storage Co.,
Again, on page 244:
"This prerogative of the king as an attribute of government recognized and enforced by the common law of England by appropriate and often times by severe penalties and forfeitures, was vested in the Colonial governments of this country, and when these governments threw off the yoke of the mother country, that right of sovereignty passed to and was vested in the respective States. This sovereign attribute and power as existent in the States of this Union has often been exercised by them by passage of laws in the most of these States, for the protection and preservation of game; and it seems never to have been called in question. Numerous adjudications attest this fact. In such cases the common ownership of game which otherwise *1273 would remain in the body of the people, is lodged in the State to be exercised like all other governmental powers in the State in its sovereign capacity, to be exercised in trust for the benefit of the people and subject, of course, to such regulations and restrictions as the sovereign power may see fit to impose. Such regulations appropriately fall within the domain of the police power of the State.
"In Ex parte Maier,
And again, on page 247:
"In this case the statute makes no exceptions to the rigid rule which it prescribes. The acts therein mentioned are unconditionally and absolutely forbidden, and this is so because the Legislature doubtless thought that the best way of accomplishing the result they desired and the only means of accomplishing it. They therefore resorted to arbitrary prohibition. Had scienter been required by the statute, its very object would have been defeated, as scienter would be in the majority of instances impossible of proof. [1 Whart. Crim. Law (9 Ed.) sec. 88, p. 117.]
"It was to prevent the easy evasions of the statute that the law was passed in its present shape. And on this ground it is analogous to statutes prohibiting the manufacture or sale of oleomargarine (State v. Bockstruck,
See also Geer v. Connecticut,
In State v. Weber,
In State v. Davis,
In a recent case we held that an ordinance requiring every junk dealer to keep a book in which shall be recorded the names and addresses of those from whom he purchases any article, and requiring that said book shall at all times be kept open for the inspection of the police or any citizen, does not authorize unreasonable searches and seizures for private purposes, and is not violative of the constitutional provisions concerning unreasonable search and seizure; that no one *1275
has an inalienable right to conduct a junk shop; it is a privilege which may be denied or regulated under the police power for the protection of the public health and the prevention of easy thefts. [St. Louis v. Baskowitz,
It was held in Ohio that an ordinance regulating and licensing chattel mortgage and salary loan brokers, requiring them to file with the auditor of the city weekly statements of loans, to remain on file and open to inspection was not violative of the bill of rights as an unreasonable search. [Sanning v. City of Cincinnati,
From a consideration of the foregoing rulings and many others that might be cited, we are of the opinion that the defendant, by taking out a license to hunt and kill game, the title to which was in the State, acquired a mere privilege to hunt, subject to the restrictions and limitations of the statute; that the statute requiring him to permit the game commissioner or his deputies to inspect and count the fish, birds, animals and game in his possession to ascertain whether the requirements of the statute were being faithfully complied with is a proper and necessary police regulation to discover and prevent easy evasions of the statute, and is not violative of the constitutional provisions invoked; that the statute, being of general application to all persons alike, is not repugnant to the due-process and equal-protection clauses of the Constitution (Duncan v. Missouri,
In Diaz v. United States,
The foregoing are all the questions discussed in the brief of learned counsel for the respondent. The information clearly advised the defendant of every element of the misdemeanor charged and is sufficient.
The judgment is reversed and the cause remanded. Railey, C., not sitting.
Addendum
This cause coming into Court en Banc, the foregoing opinion of HIGBEE, C., delivered in Division Two, is adopted as the opinion of the court. All concur, except Graves, J., absent, and Otto,J., not sitting. *1276