State v. Hill

53 So. 411 | Miss. | 1910

Anderson, J.,

delivered the opinion of the court.

The appellee, Jim Hill, was charged in an affidavit before a justice of the peace with violating an ordinance •of the board of supervisors of Itawamba county prohibiting non-residents from fishing in the 'waters of that •county, and was convicted, and appealed to the circuit court, where he was tried and acquitted, and from that judgment the state prosecutes this appeal.

The case was tried on an agreed state of facts, as follows:

“It is agreed by and between Greorge T. Mitchell, district attorney, for the state, and Clayton, Mitchell & Clayton, attorneys for the defendant, that the following is a true statement of the facts in the above-styled case, to. wit: That Jim Hill, the defendant, is a resident citizen •of Lee county, Miss.; that he fished in Twenty Mile creek, within the Second district of Itawamba county, Miss., ■on land not his own, and that he did not own any land in said county of Itawamba; that he did said fishing on. or about the--day of September, 1908; that the only question for the court to decide is whether the order of the board of supervisors of said county, passed on the --day of--, to prohibit non-residents from ■fishing in said county, would include residents of the said state who were not residents of said county of Itawamba, •and also whether or not the said order is violative of the law or the Constitution of the state or the United States, ■and whether or not said order is valid.

“This 28th day of November, 1908.”

The court gave a peremptory instruction to the jury to find the defendant not guilty, which they did, and .judgment entered accordingly.

The ordinance in question is as follows:

“It is ordered by the board that non-residents shall not fish and hunt in Itawamba county, Miss., except those who own land in said county. It is further ordered that any person violating this order shall be fined the sum of ten dollars,' one half of said fine to be placed in the •county treasury, and the other half to be retained by the person who reports the same to a proper officer.

“In Matters of Amendments to Game Law. — After •careful consideration by the board of the game law, passed at the May meeting of said board, that the said •game law be amended as to non-residents fishing and hunting in said county. It is ordered by the board that non-residents be allowed to fish and hunt on their own land and none other. This act to take effect on and after its passage.”

Section 2305, Code 1906, expressly conferred on the board of supervisors power to pass the ordinance in question. The language is: “The board of supervisors rare given full jurisdiction and authority for the protection and preservation of game and fish in their respective counties, and to conserve the same for the use and consumption of the inhabitants.” By “inhabitants” is evidently meant the inhabitants of the county, as distinguished from the other inhabitants of the state.

It is contended on the part of appellee that the granting of such power is violative of the clause of section 2 of the Fourteenth Amendment to the Constitution of the United Statés, which prohibits, a state from denying “to any person within its jurisdiction the equal protection of the laws.” In determining this question, it is well to have in view the relation of the state and its inhabitants to the game and fish within its borders. They belong to the sovereign. The title is in all the inhabitants of the state, and no person can acquire any absolute title, as against all others, except by capture and subjection to his own control. In a very able opinion in Ex parte Louis Fritz, 86 Miss. 210, 38 South. 722, 109 Am. St. Rep. 700, Justice Cox uses- this language: “By reason of the migratory habits of fish, their ownership is in the public, and no individual has any absolute property right in them until they have been subjected to his control. It is not only the right of the state, but also its duty, to preserve for the benefit of the general public the fish in its waters, in their migration and in their breeding places, from destruction or undue reduction in numbers-, through the caprice, improvidence, or greed of the riparian proprietors as well as trespassers.” And again, in State v. Buckingham, 93 Miss. 846, 47 South. 501: “It is now settled that the sovereignty is the owner of wild game, on the idea that animals, birds, and fishes, wild by nature, may be preserved as a food supply for all the inhabitants.” So it is clear that the fish and game in Itawamba county belong to the state, and the people of that county have no greater right in them than the balance of the people of the state. The state holds the title in trust for all the people, and, in making distributions of the benefits arising therefrom, must do so with an equal hand, disregarding county lines or other subdivisions.

The right to take game and fish is a valuable one, and the state is without power to confer this right on the people of one section and deny it to the balance of the state. Now, the question is whether the state can make a law (or authorize the board of supervisors to do so, which amounts to the same thing) providing that the game and fish within the borders of each county in the state shall be protected and conserved alone for the inhabitants thereof? Or, putting the concrete case, say to the people of Itawamba county, “You may take the game and fish found within your borders,” but to the balance of the people of the state, “You shall not”? A more palpable denial of the equal protection of the law is hardly conceivable. State v. Higgins, 51 S. C. 51, 28 S. E. 15, 38 L. R. A. 561; Gustafson v. State, 40 Tex. Cr. R. 67, 45 S. W. 717, 48 S. W. 518, 43 L. R. A. 615.

Affirmed.