State v. Snowman, 94 Me. 99

State v. Snowman

94 Me. 99 | Me. | 1900

Fogler, J.

The respondent was indicted and tried for an alleged violation of the provisions of Section 1 of Chapter 262, Public Laws of -1897, which reads as follows:

Sect. 1. “No person shall engage in the business of guiding, as the term is commonly understood, before he has caused his name, age, and residence to be recorded in a book kept for that purpose by the commissioners of inland fisheries and game, and procured a certificate from said commissioners, setting forth in substance that he is deemed suitable to act as a guide, either for inland fishing or forest hunting, or both, as the case may be. Whoever engages in the business of guiding without having complied with the provisions of this section forfeits fifty dollars and costs of prosecution.” Section 2 of the same chapter is as follows:—

Sect. 2. “Each registered guide shall from time to time, as often as requested by the commissioners, on blanks furnished him by the commissioners, forward a statement to them of the number of persons he has guided in inland fishing and forest hunting during the time called for in said statement, the number of days he has been employed as a guide, and such other useful information relative to the inland fish and game, forest fires and the preservation of the forests in the localities where he has guided, as the commissioners may deem of importance to the state.”

Other sections of the chapter require that the registration provided for by the act, shall take place annually on or before the first day of July ; that when any registered guide shall be convicted *109of any violation of the inland fish and game laws he shall forfeit his certificate; that a fee of one dollar shall be paid by each person registered and that the money thus received shall be and become a part of the fund for the preservation of inland fish and game; and that the act shall not be construed to apply to any person who has not, directly or indirectly, held himself out to the public as a guide, or solicited employment as such.

The indictment alleges that the respondent, Elmer Snowman, at Rangeley in the county of Franklin, “On the second day of July in the year of our Lord one thousand eight hundred and ninety-eight and on divers other days between said second day of July, A. D.-1898, and the day of the finding of this indictment, was then and there engaged in the business of guiding in inland fishing and forest hunting, as the term is commonly understood, said Elmer Snowman not having caused his name, age and residence to be recorded in a book kept for that purpose by the commissioners of inland fisheries and game of the state of Maine, and had not then and there procured from said commissioners a certificate setting forth in substance that he is deemed suitable to act as a guide either for inland fishing or forest hunting, against the peace,” etc.

The jury returned a verdict of guilty, whereupon the respondent filed a motion in arrest of judgment which was overruled by the presiding justice, and to such overruling of the motion the respondent excepts.

The respondent also excepts to an instruction given by the presiding justice to the jury.

The motion in arrest of judgment alleges that the indictment is bad for duplicity and is otherwise insufficient in law; and that the statute under which the respondent is indicted is unconstitutional.

We are of opinion that'the indictment is sufficient in law. But one offense is charged, namely, that of having been unlawfully engaged in the business of guiding, and the indictment is not therefore, bad for duplicity. The indictment follows closely the language of the statute, so that the offense charged and the statute under which the indictment is found can be clearly identified and understood.

*110The counsel for the respondent contends that the statute under which the respondent is indicted is repugnant to that clause of the Declaration of Rights, Section 1, Article 1, of the Constitution of Maine, which declares that, “All men are born equally free and independent, and have certain natural, inherent and unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and of pursuing and obtaining safety and happiness.”

It is argued in support of this contention, that the statute in question deprives the respondent and others from engaging in a lawful vocation, and is therefore in contravention of the provisions of the Bill of Rights, guaranteeing the liberty of all citizens.

It is unquestioned that every person has the natural right to pursue any lawful vocation, but such natural right is subject to the legal maxim, sic utere tuo ut alienum non laedas. So when a vocation, naturally lawful, or the mode of exercising it, inflicts injury to the rights of others, or is inconsistent with the public welfare, it may be regulated and restrained by the State by the exercise of its police power; by which persons and property áre subjected to all kinds of restraints and burdens, in order to secure the general comfort, health and prosperity of the state. Dexter v. Blackden, 93 Maine, 473; Tiedeman’s Lim. of Police Powers, § 1.

The question here is whether the enactment of the statute under consideration by the legislature was a legal and constitutional exercise of such power, or falls within constitutional limitation.

The rule to be observed by the judiciary in determining the constitutionality of a legislative enactment is thus stated in State v. Lubee, 93 Maine, 418: “Every presumption and intendment is in favor of the constitutionality of an act of the legislature. Courts are not justified in pronouncing a legislative enactment invalid unless satisfied beyond a reasonable doubt of its repugnance to the constitution; and nothing but a clear violation of the constitution —a clear usurpation of power prohibited — will warrant the judiciary in declaring an act of the legislature unconstitutional and void.”

The manifest purpose of the statute in this case is the preserva*111tion of the fish in inland waters of the state, and the game in its forests. By the terms of the act a person, to be authorized to act as a guide in inland fisheries and forest hunting, must be registered and certified by the commissioners of inland fisheries and game, whose certificate must set forth in substance that the person to whom it is issued is suitable to act in such capacity. Each person so registered and certified, is required, as requested by the commissioners to furnish certain statistics as to his employment as guide, and also such other useful information relative to inland fish and game, forest fires and the preservation of the forests, as the commissioners may deem important to the state.

The fish in the waters of the state and the game in its forests belong to the people of the state in their sovereign capacity who, through their representatives, the legislature, have sole control thereof and may permit or prohibit their taking. Martin v. Waddell, 16 Pet. 410; Geer v. State of Conn., 161 U. S. 519, and cases there cited; Ex parte Maier, 103 Cal. 476; State v. Redman, 58 Minn. 393.

In the case last cited the court says: “We take it to be the correct doctrine in this country that the ownership of wild animals, so far as they are capable of ownership, is in the state, not as a proprietor, but in its sovereign capacity, as the representative and for the benefit of all its people in common.”

In Ex parte Maier, supra, it is said : “ The wild game within a state belongs to the people in their collective sovereign capacity. It is not the subject of private ownership except in so far as the people may elect to make it so; and they may, if they see fit, absolutely prohibit tbe taking of it, or traffic and commerce in it, if it is deemed necessary for the protection or preservation of the public good.”

When the state permits the taking of fish and game, it has full power and authority to regulate such taking. It may impose such conditions, restrictions and limitations as it deems needful or *112proper. Greer v. State of Conn., supra, in which Mr. Justice White, who delivered the opinion of the court, exhaustively examined and discussed the question here involved, citing an array of authorities, says, p. 528 : “ In most of the states laws have been passed for the preservation and protection of game. We have been referred to no case where the power to so regulate has been questioned although the books contain cases involving controversies as to the meaning of some of the statutes.” See also Manchester v. Massachusetts, 139 U. S. 240; Roth v. State, 51 Ohio St. 209; Allen v. Wyckof, 48 N. J. L. 90 ; Phelps v. Racy, 60 N. Y. 10 ; Moulton v. Libbey, 37 Maine, 494; State v. Whitten, 90 Maine, 55.

It has been for many years the policy of this state to protect and preserve its fish and game, and to that end the legislature has annually appropriated and caused to be expended large sums of money, and has enacted numerous statutes. Under this wise policy the fish and game within its borders have become of great importance and value to the state. The statute here in question is a further enactment in pursuance of such policy.

It is well known that most sportsmen who frequent remote streams and lakes, and traverse the trackless forests which cover large portions of the state, do so under the guidance and direction of guides. Guides may be regarded as instrumentalities in fishing and hunting. Guides should possess such skill, experience, sagacity and probity that not only-the safety of the sportsman but the welfare of the state can be properly intrusted to them. They should be under such restrictions that it shall be for their interest to discountenance violation of the fish and game laws. The legislature has deemed it wise to create such a body of men who shall pursue such vocation under the supervision of the commissioners of inland fisheries and game, and shall assist the commissioners in protecting and preserving the property of the state. The privilege of hunting and fishing is granted by the state freely and without price; and it is reasonable and proper that all who avail themselves of such privilege, whether they be fishermen, hunters or guides, should conform and be amenable to such regulations as the state may impose. We are of opinion that the legislature has the *113constitutional power to x’egulate the employment of guides in fishing and hunting as provided in the statute here in question.

The learned counsel for the respondent further contends that, assuming the statute to be otherwise constitutional, the requirement that each person registered and certified under the provisions of the act, shall pay a fee of one dollar, is repugnant to the constitution, and that the statute is for that reason unconstitutional and void. We do not sustain that contention. It is well settled that when the state issues a license to any person to carry on any business or to engage in any vocation, it may exact a reasonable fee therefor. Tiedeman on Lim. of Police Powers, § 101, p. 274, et seq., where the authorities upon this point are collated and examined. The fee required by this statute is certainly reasonable, being no more than is sufficient to defray the expense of registering and certifying and maintaining necessary supervision.

We, therefore, hold that the statute under which the respondent is indicted is not repugnant to the constitution of the State, but is constitutional and valid.

The defendant excepts to the following instructions given to the jury by the presiding jnstice, viz: “And I think I will say to you, for the purposes of this case, as it will undoubtedly go forward to the law court, if he acts as guide one or more times, not being licensed, he falls within the provisions of the statute as being engaged in the business of guiding. I think the statute intended to prohibit all guiding unless by licensed guides.”

This instruction was erroneous and the exception thereto must be sustained.

The respondent is charged in the indictment with having been unlawfully engaged in the business of guiding. Whether he was so engaged, as a business, was a question exclusively for the jury. A single act of guiding with proof of other cii’cumstances might satisfy them of the truth of the charge: while, on the contrary, proof of two or more acts of guiding, with other circumstances proved, might fail to so satisfy them. Moreover, the statute, chapter 262, § 5, P. L. 1897, provides that, “This act shall not be construed to apply to any person who does not directly or indi*114rectly, hold himself out to the public as a guide or directly or indirectly solicit employment as such.”

Exceptions as to sufficiency of indictment and as to constitutionality of statute overruled.

Exceptions to instructions of presiding justice sustained. New trial granted.