81 P. 640 | Idaho | 1905
— The appellant was convicted of the crime of offering for sale and selling certain fish protected by the laws of the state of Idaho, to wit, trout. The trial before the district court was without a jury, upon an agreed statement of facts. The defendant was found guilty and sentenced to pay a fine of $10 and costs. The appeal is from the judgment. The general assignment of error is that the decision of the court is against the law and contrary to the agreed statement of facts, which constitute all of the evidence in the case. The agreed statement of facts is as follows:
“It is hereby stipulated and agreed by and between counsel for the respective parties hereto that the facts in this case, and upon which the judgment and decision of this court are desired, are as follows, to wit: That on the fifteenth day of May, 1905, at Boise, in the county of Ada, state of Idaho, the defendant, W. F. Dolan, had in his possession for the purpose of selling, and did expose, offer and sell certain fish, to wit, trout. That prior to said fifteenth day of May aforesaid, said trout were shipped by express to this defendant at his special instance and request by one Robert Osborn of Fremont county Idaho. That said Osborn is the owner of artificial ponds or lakes on premises owned by him, situated near Island Park, Fremont county, Idaho, the same having been constructed and in use prior to January 1, 1905, in which he propagates and raises trout; and said trout so sold were the original product of the water contained in said ponds or lakes, and neither said fish nor the spawn were taken from any of the lakes or streams of this state, but said fish so exposed, offered for sale and sold by this defendant as aforesaid were each and all of them propagated and grown in said private ponds or lakes of said Robert Osborn. That the map*259 hereto attached marked Plaintiff’s Exhibit “A,” and made a part hereof, is approximately correct as to the location of said ponds or lakes with reference to certain natural streams and rivers. That one of said ponds or lakes is constructed upon a small stream (marked “1” and “2” on map), which flows into the north fork of Snake river, said stream being about eight (8) miles long; and said pond or lake is constructed about one mile from the mouth of said stream where the same flows into the north fork of Snake river. Circle No. three (3) upon said map represents such pond or lake. Line No. four (4) represents a ditch constructed by said Osborn from said pond for about one-half mile and which changes the course of waters of said stream “1” and “2” and empties the same into a spring creek (No. five (5) on map), said spring creek being about forty (40) rods long and emptying into said north fork of Snake river, said spring creek being fed by a spring (No. six (6) on map). That said spring creek does not freeze in winter; that said Osborn has constructed a dam about two hundred (200) feet from the mouth of said spring creek and has constructed a lumber trap in said creek (marked No. seven (7) on map), the purpose of which is to prevent the fish raised in said ponds from getting into Snake river. That one of said ponds or lakes for raising and propagating fish is situated upon said spring creek above said dam, and is marked No. 13 on map. Line eight (8) on said map represents the north fork of Snake river. Lines nine, ten and eleven (9, 10, 11) represent small streams close by, emptying into said Snake river. That all of said small streams, including the stream upon which said Osborn has constructed said ponds or lakes, are natural spawning grounds for trout and other fish, and contain at all times trout and food fishes, as such streams very seldom get roily during the high water and during the spawning season of such fish. That the area of each of the ponds or lakes so constructed and owned by said Osborn does not exceed five (5) acres. ’ ’
Counsel for the appellant contend that the law does not prohibit the sale of trout which are the original product of
It is admitted by counsel for the state that if said section contained the only provision in the law relative to the sale of fish, there might at least be some ground for the appellant’s contention, and also contend that the law referred to contains other provisions in connection with which said section 3 must be construed. Section 4 of said act provides, among other things, as follows: “It shall be unlawful for any person to catch more than twenty pounds of trout, bass, catfish, grayling or sunfish, in any one day, or have in their possession more than thirty pounds at any time.” And section 9 of said act provides, among other things, as follows: “It shall be unlawful for any person or persons, company or corporation, or the agent or employee of such company or corporation to sell, offer or expose for sale, or have in his, its or their possession, for the purpose of selling or offering for sale, any species of fish or birds protected by this act, or any part
The evident object and purpose of the said law was to protect certain species of fish therein named, and it is apparent from the following provisions of said section 3 (to wit, “and shall not be construed so as to permit any person or persons to barter or sell at any time of the year any fish not the original product of the waters contained in said pond”), that the owner of such a private pond as therein specified and such fish raised as therein specified, that the owner thereof might sell such fish, but under the other provisions of said act quoted, no person not owning, such private pond could legally barter or sell at any time any of such fish, nor could any person or persons, company or corporation, or the agent or employee of such company or corporation, lawfully sell, offer or expose for sale, or have in his, its or their possession for the purpose of selling or offering for sale any of the species of fish protected by said act. That construction goes to the very limit, and those provisions construed with other provisions of said act could reasonably be construed to prohibit the sale
A map or plat is attached to the stipulated facts and marked exhibit “A” and made a part thereof, and it is agreed that said plat is approximately correct as to the location of the ponds or lakes from whence the fish in question were taken, with reference to certain natural streams and river. After describing particularly said ponds and streams, it is stipulated as follows: “That all of said small streams, including the stream upon which Osborn has constructed said ponds or lakes, are natural spawning ground for trout and other fishes, and contain at all times trout and food fishes, as such streams very seldom get roily during the high water and during the spawning season of such fish.”
That stipulation shows clearly that the pretended private pond or ponds from which the fish in question were taken does not come within the meaning of the term private pond, as used in said section 3. In that section one is prohibited from establishing a private pond on water where food fishes naturally abound. Under said stipulations, it is agreed that the ponds from whence said fish were taken are natural spawning grounds for trout and other food fishes. So under the law said pretended private ponds are not private ponds within the provisions of said section.
Such pretended private ponds are only devices for the evasion of tbe said law, and are not private ponds within the meaning of the provisions of said section.
The judgment of the court below must be affirmed.
