Anderson Fish & Oyster Co. v. Olds

• Citation: 277 S.W.2d 344,1 McCanless 604,197 Tenn. 604
• Parties: ANDERSON FISH & OYSTER COMPANY, Inc., and Marvin Hayes, v. Hayden W. OLDS, Director of Game & Fish Commission of the State of Tennessee. 1 McCanless 604, 197 Tenn. 604, 277 S.W.2d 344
• Decision Date: 11 March 1955
• Court: Supreme Court of Tennessee

Page 344

277 S.W.2d 344

ANDERSON FISH & OYSTER COMPANY, Inc., and Marvin Hayes, v. Hayden W. OLDS, Director of Game & Fish Commission of the

State of Tennessee.

1 McCanless 604, 197 Tenn. 604, 277 S.W.2d 344

Supreme Court of Tennessee.

March 11, 1955.

Henry C. Foutch and James M. Glasgow, Asst. Attys. Gen., for appellant.

Charles L. Cornelius, W. Ovid Collins, Jr., James M. Swiggart, Nashville, Miles & Miles, Union City, for appellees.

BURNETT, Justice.

The question here is, can crappie fish be taken from Reelfoot Lake at all times of the year, excluding April 15th to June 15th, and sold generally or is their sale limited to restaurants?

The two lower courts held that they could be sold generally to anyone and everyone and their sale was not limited to restaurants. The Commissioner has seasonably excepted to this holding and has perfected his appeal to this Court via application for certiorari which has heretofore been granted. Able briefs have been filed, arguments heard and we now have the matter for disposition.

There is no dispute about the facts. Anderson is a wholesale dealer in fish. Hayes is a commercial fisherman, operating on Reelfoot Lake. These two parties entered into a contract whereby Hayes agreed to sell Anderson crappie fish to meet Anderson's needs. The Director of Game & Fish Commission of the State takes the position that under the Act crappie fish can only be sold to restaurants while obviously Anderson and Hayes take the position that they can be sold generally. Thus we have a difference.

Chapter 115 of the Public Acts of Tennessee 1951, is a general wild life protection act. Under Section 20 of that Act it is provided in part:

'Provided, that no fish listed as game fish may be sold or offered for sale at any time, except that yellow bass (striped jack), crappie, and all varieties of sunfish, but not including black bass, may be taken commercially from Reelfoot Lake, transported, sold and served in restaurants'. (Emphasis ours.)

This Public Act, Chapter 115 of the Public Acts of 1951, is codified in Williams' Code as Sections 5178.30-5178.103. The Legislature of 1953, Pub.Acts 1953, c. 256, amended this Act in certain particulars. As far as here applicable the amendment to Section 20, which is codified as Code Section 5178.49, reads as follows:

'Provided, that no fish listed as game fish may be sold, or offered for sale at any time or place in the State of Tennessee, except that yellow bass (striped jack), crappie, and all varieties of sunfish, but not including black bass, may be taken commercially from Reelfoot Lake (except between April 15 and June 15), transported, sold and served in restaurants'. (Emphasis ours.)

By comparison the changes can be seen. The paragraph preceding the Section of the Act above quoted declares what fishes are game fish. Among numerous others are 'crappie'. In the same paragraph from which the above-quoted language is taken are provisions for the supervision of this taking by the Game and Fish Commission and provisions that certain metal tabs, labels, etc., be put on these fish. There is a proviso making it a misdemeanor for a violation of this Section of the Act. Then follows a paragraph saying that no crappie shall be taken between 'April 15 and June 15' and other language providing for seines and the size of the mesh in the seines.

Both sides to this litigation agree on nearly all, if not all, the legal principles involved herein. It is agreed first that the legislative intent controls the construction of statutes. Chicago & Southern Airlines, Inc., v. Evans, 192 Tenn. 218, 240 S.W.2d 249, and others. It is also agreed that the statute should be construed as a whole, giving effect to each word. Tiger Creek Bus Line v. Tiger Creek Transportation Ass'n, 187 Tenn. 654, 216 S.W.2d 348; and that we should and will assume that the Legislature used each word in the statute purposely and that the use of these words conveyed some intent and had a meaning and a purpose. Flowers v. Aetna Casualty & Surety Co., 186 Tenn. 603, 212 S.W.2d 595.

It is further agreed that we in construing a statute should give it the construction which promotes the purpose and object of the Act. Knoxtenn Theatres Inc., v. Dance, 186 Tenn. 114, 125, 208 S.W.2d 536; Woodroof v. City of Nashville, 29 Tenn.App. 426, 436-436, 197 S.W.2d 4. One reading this Act immediately arrives at the obvious purpose of the Act which is to conserve game fish. All parties hereto concede that this is the purpose of the Act.

The declarations in the caption of the Act of what the Act is about are definite signposts to tell to the Legislature, and others interested, what the Act is about. It certainly is our duty in trying to determine the intent of the Legislature in enacting an Act to consider the title or declarations in the caption of the Act to determine what the purpose of the Legislature was. Sealed Power Corp. v. Stokes, 174 Tenn. 493, 502, 127 S.W.2d 114. We of course, after considering and reading the caption of the Act, read each section thereof and then by comparing one section with another we get some light on the intent and the general purpose of the Act as enacted by the Legislature. Thus when we look at the caption of Chapter 115 of the Public Acts of 1951, as codified 5178.30 et seq., we see from the caption of this Act that among its other purposes is '* * * to prohibit the sale of game and game fish * * *.'

The petitioner here (Director) interprets the heretofore quoted language from the Act as restricting the sale of crappie and certain other species of game fish therein set forth to restaurants. It seems to us that this interpretation is sound and that such a construction will protect and preserve these fish as is contemplated by the Act because then this would tend to prohibit the sales in abundance. If we take the construction put on this Act by the two lower courts then there is absolutely no restriction on the sale of these fish and consequently if there was no restriction there would be no protection or preservation of such fish.

We think that the courts are entitled to and should review previous legislation on the subject in an effort to somewhat glean the present intent of the Legislature. Sutherland Statutory Construction, 3rd Edition, Horack, Vol. 2, Sec. 5002, page 483. There have been innumerable private acts on the subject. Probably the Legislature sought to find a solution once and for all when it enacted this comprehensive enactment contained in Chapter 115 of the Public Acts of 1951. By 1953 some imperfections had appeared and consequently the 1953 General Assembly made some amendments to the Act among others was the one hereinbefore referred to now pertinent.

As early as 1907 the sale of fish at Reelfoot Lake for eating purposes, but not for resale, was recognized. Section 13, Chapter 489, Public Acts of 1907. This prohibition against the sale of fish generally has long been recognized, but equally well recognized has been the exception that fish may be sold for eating purposes at Reelfoot Lake.

We come on down to the 1935 Legislature which changed the State's policy concerning the prohibition against commercial fishing. The law was known as the 'Reelfoot Lake Law' as contained in Chapter 164 of the Public Acts of 1935. This Act was detailed and created a scheme of royalties to be paid the State upon certain quantities of fish taken commercially.

Again the policy was changed by Chapter 218 of the Public Acts of 1939. In 1941, by Chapters 84 and 127 of the Public Acts of that year, other enactments were offered on this subject. Chapter 127 prohibits the sale or offering for...