Aikens v. State Dept. of Conservation

• Decision Date: 20 June 1972
• Docket Number: No. 28,28
• Citation: 387 Mich. 495,198 N.W.2d 304
• Parties: Sam AIKENS, for himself and on behalf of all commercial perch fishermen in Saginaw Bay, during the year 1965, Plaintiffs-Appellees, v. STATE of Michigan, DEPARTMENT OF CONSERVATION, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 304

198 N.W.2d 304

387 Mich. 495

Sam AIKENS, for himself and on behalf of all commercial perch fishermen in Saginaw Bay, during the year 1965, Plaintiffs-Appellees, v. STATE of Michigan, DEPARTMENT OF CONSERVATION, Defendant-Appellant.

No. 28.

Supreme Court of Michigan.

June 20, 1972.

Abba I. Friedman, Southfield, for plaintiffs-appellees.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Jerome Maslowski, Curtis G. Beck, Asst. Attys. Gen., Lansing, for defendant-appellant.

Before the Entire Bench.

SWAINSON, Justice.

Plaintiffs are commercial perch fishermen who pursue this occupation in the Saginaw Bay area. In the summer of 1965, officers of the Michigan Department of Conservation ¹ seized certain catches of perch taken by the fishermen on the basis that the fish were undersize and, therefore, illegal under M.C.L.A. § 308.14(d) (Stat.Ann.1967 Rev. § 13.1505(d)).

Plaintiffs instituted suit in the Court of Claims seeking $6,000 in damages, alleging that the fish had been illegally confiscated by representatives of the State. Both parties moved for summary judgment, and the Court of Claims granted defendant's motion for summary judgment. A majority of the Court of Appeals reversed, holding that the Court of Claims improperly interpreted M.C.L.A. § 308.14(d) (Stat.Ann.1967 Rev. § 13.1505(d)), and that, in addition, the State failed to follow the proper statutory condemnation procedure provided by M.C.L.A. § 300.1 et seq. (Stat.Ann.1967 Rev. § 13.1211 et seq.). The Court of Appeals remanded to the Court of Claims with an order to that court to grant, upon motion, a change of venue to the appropriate circuit court to make determination of whether the fish met the weight requirements of M.C.L.A. § 308.14(d) (Stat.Ann.1967 Rev. § 13.1505(d)). The majority opinion of the Court of Appeals held that if it was found that the weight requirement was met, the circuit court should find that the Department of Conservation wrongfully confiscated the property and that plaintiffs would be entitled to damages, since it was no longer possible to return the property. Judge McGregor dissented, holding that the opinion of the Court of Claims should be affirmed. 28 Mich.App. 181, 184 N.W.2d 222. We granted leave to appeal. 384 Mich. 805.

Two basic issues are presented in this appeal: The first involves the interpretation of M.C.L.A. § 308.14(d) (Stat.Ann.1967 Rev. § 13.1505(d)). Plaintiffs contend that if the defendant is correct in its interpretation of this statute, such interpretation would violate the equal protection provisions of the U.S. Constitution and the Michigan Constitution. The second issue is whether the Court of Appeals was correct in its ruling that the State should follow the statutory condemnation procedures provided by M.C.L.A. § 300.1 et seq. (Stat.Ann.1967 Rev. § 13.1211 et seq.).

M.C.L.A. § 308.14(d) (Stat.Ann.1967 Rev. § 13.1505(d)), provides:

'It shall be unlawful to market, have in possession, transport or offer for sale at any time in this state, whether caught within or without this state, any: * * *

'(d) Perch, of a less length than 8 1/2 inches in the round and filleted perch of a less weight than 1 3/4 ounces; perch with heads and tails off of a less length than 5 1/2 inches; * * *

'The measurement of the length of a fish within the meaning of this act shall be taken in a straight line from the tip of the snout to the utmost end of the tail fin. For the purpose of this act a 'fish in the round' shall be deemed to be a fish that is entirely intact as it was taken out of the water with no part removed by dressing. A 'dressed fish' shall be deemed a fish with the head attached but with the gills and the entire gut or viscera (stomach, liver, intestine, gonads) removed, and a 'filleted fish' shall be deemed to be a fish with the entire head, gut or viscera, gills, bones, scales and all fins removed. The measurements of length and weight as prescribed in this act shall apply without any allowance made for the shrinkage of the fish.'

It is well settled that the proper construction of any statute is for the court. Albert v. Gibson (1905), 141 Mich. 698, 105 N.W. 19; Smith v. City Commission of Grand Rapids (1937), 281 Mich. 235, 274 N.W. 776; Webster v. Rotary Electric Steel Co. (1948), 321 Mich. 526, 33 N.W.2d 69. The purpose of the court in interpreting a statute is to give effect to the legislative intent. People v. Gould (1926), 237 Mich. 156, 211 N.W. 346; Attorney General, ex rel. Whitcomb v. Lau (1931), 256 Mich. 13, 239 N.W. 273; Bankers Trust Co. v. Russell (1933), 263 Mich. 677, 249 N.W. 27; Ballinger v. Smith (1950), 328 Mich. 23, 43 N.W.2d 49. If there is a conflict, the spirit and purpose of the statute should prevail over its strict letter. Township of Stambaugh v. Iron County Treasurer (1908), 153 Mich. 104, 116 N.W. 569; Smith v. City Commission of Grand Rapids, Supra; Webster v. Rotary Electric Steel Co., Supra.

Both parties have discussed the issue of whether that part of the statute reading:

'Perch, of a less length than 8 1/2 inches in the round And filleted perch of a less weight than 1 3/4 ounces;' (emphasis added.)

should be read in the disjunctive or conjunctive. In Klug v. Auditor General (1916), 194 Mich. 41, 45, 160 N.W. 589, 590, the Court stated:

'Relator's position is based largely upon the punctuation and upon rules of grammatical construction, and, while these rules have been applied for the purpose of ascertaining the meaning of a statute, nevertheless they must yield to a clearly disclosed legislative intention.'

In Heckathorn v. Heckathorn (1938), 284 Mich. 677, 681, 280 N.W. 79, 81, the Court said:

'The popular use of 'or' and 'and' is so loose and so frequently inaccurate that it has infected statutory enactments. While they are not treated as interchangeable, and should be followed when their accurate reading does not render the sense dubious, their strict meaning is more readily departed from than that of other words, and one read in place of the other in deference to the meaning of the context.'

See, also, Darling Co. v. Water Resources Comm. (1955), 341 Mich. 654, 662, 67 N.W.2d 890.

The preamble of the commercial fishing law (M.C.L.A. § 308.1 et seq.; Stat.Ann.1967 Rev. § 13.1491 et seq.) clearly expresses the legislative intent to protect and preserve the fisheries of the State of Michigan. Thus, conservation is the legislative intent of this enactment and, indeed, both parties agree with this proposition. The State of Michigan was attempting to protect the fisheries by insuring that undersize fish would not be removed from the waters. The statute clearly sets up three separate tests to determine the unlawful possession of perch: (1) If they are of a less length than 8 1/2 inches in the round; (2) if when filleted they are of a less weight than 1 3/4 ounces; and (3) if when the head and tails are removed, they are of a less length than 5 1/2 inches.

We agree with the construction of the statute given by the Court of Claims and disagree with that of the Court of Appeals. The test provided by the Court of Appeals would require the Department of Conservation to fillet and weigh every one of the fish caught that were of a less length than 8 1/2 inches. We believe a careful reading of the statute indicates that the legislature intended to set up three separate tests. The different tests were to be utilized depending upon the condition in which the perch were found by the Department of Conservation. The Department of Conservation would not have to weigh the fish unless they were found in a filleted state. If the fish failed to meet any one of the three tests, then the possession would be illegal. We, therefore, hold that the Court of Appeals erred in its interpretation of the statute.

Plaintiffs contend that if the Court of Claims was correct in its interpretation of the statute, that the application of the statute to them was unconstitutional as a violation of the equal protection clause. The Court of Appeals in its opinion correctly pointed out that the plaintiffs' constitutional rights would not be violated unless the statute gave them explicit statutory right to have possession of the fish. The court stated (28 Mich.App. pp. 183--184, 184 N.W.2d p. 223):

'In order for the plaintiffs to maintain a cause of action upon which relief could be granted, it is necessary to establish that they either had legal title to, or a right to possession of, the fish. It has long been recognized that animals Ferae naturae are not objects of private ownership, but rather belong to the State, which in effect holds the fish in a trust for all of the people of the State in their collective capacity. See Geer v. Connecticut (1930), 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793; Fleming v. United States (1965), 352 F.2d 533, 173 Ct.Cl. 426; People v. Zimberg (1948), 321 Mich. 655, 33 N.W.2d 104; People v. Collison (1891), 85 Mich. 105, 48 N.W. 292. The State, representing the people, has the authority to regulate or even prohibit the taking of animals Ferae naturae if such action is deemed necessary for the public good. See People v. Dornbos (1901), 127 Mich. 136, 86 N.W. 529; People v. Lessen (1906), 142 Mich. 597, 106 N.W. 143.

'In People v. Zimberg, Supra, 321 Mich. p. 658, 33 N.W.2d p. 106, the Court stated:

"It is universally held in this country that wild game and fish belong to the state and are subject to its power to regulate and control; that an individual may acquire only such limited or qualified property interest therein as the state chooses to permit. In People v. Soule (1927), 238 Mich. 130, 213 N.W. 195, 197, we said:

"'This conservation legislation is clearly an exercise of the police power inherent in the State. The wild game and fish (ferae nature) within its confines belong to the State. No private ownership or private property rights are involved in this inquiry. McKenney v. Farnsworth (1922), 121 Me. 450, 118 A. 237."

'Since the...