155 Iowa 678 | Iowa | 1912
In the provisions of the Code regulating the taking of fish in the waters of the state there is a general exception excluding the waters of the Mississippi river (and certain other boundary rivers) from such regulations. Code, section 2547. But in 1909 a statute was enacted providing that in the boundary rivers thus enumerated there should be no fishing with nets or seines without first procuring from the fish and game warden of this state an. annual license for the use of such nets and seines, the license fee being fixed by the statute, and the taking by any person of fish of a certain description from said rivers except by hook and line during a specified portion of the jear was also prohibited. See chapter 155, Acts of 33d General Assembly, as amended 'by chapter 117, Acts 34th General Assembly. Prior to the enactment of these statutes, the laws of the state regulating fishing were not applicáble to the navigable boundary rivers of the state which were subject to -the concurrent jurisdiction of adjoining states. Little v. Green, 144 Iowa, 492. In the statutes last cited this state has attempted for the first time to regulate fishing in these boundary rivers, and the question now presented is whether the state may legislate in regard to fishing in such rivers in the exercise of the concurrent jurisdiction vested in it; that is to say, the question is whether, in the exercise of such concurrent jurisdiction, the state may regulate the taking of fish in the Mississippi river and punish -a violation of its statutes, although such violation is committed beyond the middle of the main navigable channel of such river, the middle of the navigable channel being the boundary line between this state and the state of Illinois. See preamble to the Constitution, wherein the boundaries of the state are described in accordance with the act of Congress admitting the state into the Union.
The concurrent jurisdiction of this state over the
This exact question has been fully considered by the Supreme Court of Wisconsin in the case of Roberts v. Fullerton, 117 Wis. 222 (93 N. W. 1111, 65 L. R. A. 953). In that case the conclusion of the majority of the court was that, under provisions us to concurrent jurisdiction similar to those involved in our own case of State v. Mullen, the states of Minnesota and Wisconsin could regulate fishing in that portion of the Mississippi river forming the boundary between the two states only so far as the waters of the river were within the actual territorial limits of the state; that is to say, the right to regulate fishing on the west side of the center of the channel was exclusively in the state of Minnesota, while the right of regulation on the east side of that imaginary and uncertain line was exclusively in the state of Wisconsin. In the majority opinion an attempt is made to define concurrent jurisdiction as relating “to matters at least in some way connected
An examination of the various cases relating to the subject of concurrent jurisdiction over boundary rivers develops ■the fact that great difficulty has been experienced in determining its nature and scope. We think that the meaning of' the term as used in the acts of Congress conferring such concurrent jurisdiction upon the various states maybe ascertained with some reasonable accuracy by taking into account the difficulties evidently intended to be avoided.
The whole question seems to turn ultimately on the meaning to be given to the phrase “concurrent jurisdiction.” If the purpose of Congress was to give to.each of the states bordering on the river no other power than to enforce its laws with reference to transactions on that part of the river included within its boundary line, then no purpose whatever was served beyond that which would have been accomplished by fixing the boundary line itself, for complete jurisdiction up to that boundary line would thereby have been vested in the adjoining states. Certainly something more was intended, and the thing evidently intended was that all the jurisdiction which might otherwise have been exercised by the state with reference to transactions on the river within the boundary line should be possessed and exercised by the state with reference to like transactions on any part of the river without regard to the boundary. This conclusion is in accordance with the great preponderance of authority in relation to similar questions. Keator
■Congress might, no doubt, legislate with reference to acts or transactions on the navigable rivers. It has done so to the extent of defining and providing for the punishment of crimes committed upon navigable waters within the admiralty jurisdiction of the United States and out of • the jurisdiction of any particular state; see United States v. Rodgers, 150 U. S. 249 (14 Sup. Ct. 109, 37 L. Ed. 1071), but it has evidently deemed it advisable that the general criminal jurisdiction over navigable rivers so far as they are within state limits be exercised by the
Several of the cases already cited illustrate this application of the concurrent jurisdiction which Congress has provided for in such cases. But we are unable to see any distiction which can be drawn between the power to provide a punishment for acts of an essentially criminal nature committed upon the waters of a boundary river and the power to provide for and enforce a criminal punishment for acts not inherently or essentially criminal, but which are in violation of the police regulations of the state. In Welsh v. State, and Harrell v. Speed, supra, it was held that the liquor laws of one state might be enforced as to sales of liquors upon a boundary river over whitih it had jurisdiction, and in Dugan v. State, supra, the Sunday laws of the state were held applicable to persons pursuing a business on the river over which the state was given jurisdiction, although beyond its boundary line. In our own case of State v. Mullen, supra, approved and followed in State v. Metcalf, supra, it was held that criminal nuisances committed anywhere upon the river over which the state has common jurisdiction may be punished in' accordance with the laws- of such state, regardless of the locality of the nuisance with reference to the boundary line. We see
In -short, we reach the conclusion that the views expressed by the majority of the Supreme Court of Wisconsin in the case of Roberts v. Fullerton are inconsistent with those expressed by this court in State v. Mullen, supra, and against the substantial -weight of authority. The trial court erred, -therefore, in making the conviction of the -defendant in this case dependent upon a finding of the jury that the act which he was charged with having committed in violation of the laws of the state with regard to fishing was committed on that portion of the Mississippi river west of the boundary line of the state.
On this appeal by the state we have no authority to do more than announce the law which should have been followed by the lower court in the trial of the case, but to this extent we reach the conclusion that for the error committed the judgment should be — Reversed.