Binkley v. Stephens

• Decision Date: 22 May 1909
• Citation: 16 Idaho 560,102 P. 10
• Parties: WILLIAM BINKLEY, Appellant, v. W. N. STEPHENS, State Fish and Game Warden of the State of Idaho, Respondent
• Court: Idaho Supreme Court

102 P. 10

16 Idaho 560

WILLIAM BINKLEY, Appellant, v. W. N. STEPHENS, State Fish and Game Warden of the State of Idaho, Respondent

Supreme Court of Idaho

May 22, 1909

GAME LAWS-RIGHT TO POSSESSION OF GAME-MISDEMEANOR-GAME WARDEN-AUTHORITY OF.

1. Under the provisions of sec. 9 of the game laws (Sess. Laws 1905, p. 257), it is a misdemeanor for any person to have in his possession carcasses, skins, heads or antlers of game animals in excess of the number provided for by said act.

2. Under the provisions of said act, the game warden has general power and authority to take possession of game animals, or any parts thereof, from any person who has in his possession such animals or parts thereof in excess of the number which he may legally have in his possession under the provisions of said law.

(Syllabus by the court.)

APPEAL from the District Court of the Sixth Judicial District, for Fremont county. Hon. J. M. Stevens, Judge.

Action to recover for damages resulting from the taking by the game warden from the appellant of forty-nine elk scalps and one antelope scalp. Judgment for the defendant. Affirmed.

Judgment affirmed, with costs in favor of the respondent.

H. L Fisher, for Appellant.

Our statute gives the game warden no authority to confiscate the plaintiff's property. And even if it did, such statute would be unconstitutional and void without a procedure providing for a judicial hearing and judgment, after due notice, as not being due process of law. (Ieck v Anderson, 57 Cal. 251, 40 Am. Rep. 115; Territory v Evans, 2 Idaho 658, 23 P. 115; McCandlish v. Commonwealth, 76 Va. 1002; Averill v. Chadwick, 153 Mass. 171, 26 N.E. 441; Linden v. McCormick, 90 Minn. 337, 96 N.W. 785; McConnell v. McKillip, 71 Neb. 712, 115 Am. St. 641, 99 N.W. 505, 65 L. R. A. 611; Neal v. Morse, 134 Mich. 186, 96 N.W. 14; Boggs v. Commonwealth, 76 Va. 989; Colon v. Lisk, 153 N.Y. 188, 60 Am. St. 609, 47 N.E. 302; McVeigh v. United States, 11 Wall. 267, 20 L.Ed. 80; The James G. Swan, 77 F. 473; Russell v. Hanscomb, 15 Gray, 166; King v. Hayes, 80 Me. 206, 13 A. 882; Loesch v. Koehler, 144 Ind. 278, 41 N.E. 326, 43 N.E. 129, 35 L. R. A. 682.)

D. C. McDougall, Attorney General, and Soule & Soule, for Respondent.

The right to seize private property when public interest is at stake was a common-law right, and the adoption of the constitution has not taken this right away. (Lawton v. Steel, 119 N.Y. 226, 16 Am. St. 813, 23 N.E. 878, 7 L. R. A. 134; Hornbeke v. White, 20 Colo. App. 13, 76 P. 926; Bittenhaus v. Johnston, 92 Wis. 588, 66 N.W. 805, 32 L. R. A. 380; Selkirk v. Stephens, 72 Minn. 335, 75 N.W. 386, 40 L. R. A. 759.)

"The ownership acquired in game or fish is not such an ownership as one acquired in chattels or lands, but is merely a qualified ownership, and the possession of fish and game is at all times subject to such regulations as the legislature may see proper to make, subject to the provisions of the constitution." (Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793; State v. Rodman, 58 Minn. 393, 59 N.W. 1098; Lawton v. Steele, 151 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385; State v. Snowman, 94 Me. 99, 80 Am. St. 380, 46 A. 815, 50 L. R. A. 544; Stevens v. State, 89 Md. 669, 43 A. 929.) Our statute applies to game wherever killed, and is not unconstitutional, and the enactment is within the police power of the state. (Ex parte Maier, 103 Cal. 476, 42 Am. St. 129, 37 P. 402; Phelps v. Racey, 60 N.Y. 10, 19 Am. Rep. 140; Stevens v. State, supra; American Ex. Co. v. People, 133 Ill. 649, 23 Am. St. 641, 24 N.E. 758, 9 L. R. A. 138; Roth v. State, 51 Ohio St. 209, 46 Am St. 566, 37 N.E. 259; State v. Randolph, 1 Mo.App. 15.)

SULLIVAN, C. J. Stewart and Ailshie, JJ., concur.

OPINION

SULLIVAN, C. J.

This action was brought by the plaintiff, Binkley, who is appellant here, against W. N. Stephens, the state fish and game warden of the state of Idaho, who is respondent, to recover the alleged value of forty-eight elk scalps, one antelope scalp and one calf elk scalp, said scalps consisting of the skin of the heads and necks of such animals.

The case was tried upon a stipulation of facts, which stipulation is as follows:

"1. That the defendant W. N. Stephens is and at all times mentioned in the pleadings herein was the duly appointed qualified and acting state fish and game warden of the state of Idaho, and in relation to all matters referred to in the pleadings in this case the said defendant was acting in his said official capacity.

"2. That on the 1st day of October, 1906, the plaintiff had in his possession in the state of Wyoming the personal property described in his complaint herein, to wit: Forty-eight elk scalps and one antelope scalp and one calf elk scalp, which scalps were taken from the carcasses of wild elk and antelope killed in Jackson's Hole, Unita county, state of Wyoming. Said scalps were by plaintiff on or about October 1, 1906, closely packed in a dry-goods box in Jackson's Hole, Uinta county, Wyoming, in the condition they were in when taken from the wild animals, and the box was nailed up so that the contents of the box could not be discovered except by breaking the box open. The box with the scalps in it was then loaded into a wagon in said Jackson's Hole and hauled by team from there to the shipping station of the Oregon Short Line Railroad Company at Sugar City, in Fremont county, Idaho, the nearest railroad station to the point where said elk and antelope were killed, and plaintiff herein person delivered said box with the scalps concealed in it as above stated to the agent of said Oregon Short Line Railroad Company at Sugar City, on the 4th day of October, 1906, and upon being asked what the box contained, the plaintiff informed said agent, G. F. Johnson, that the same contained 'household goods,' and that he desired the same billed and shipped as 'household goods' over said railroad from Sugar City, Idaho, to Los Angeles, California, and thereupon the said agent, in order that the said scalps might be shipped over said railroad as directed by plaintiff, billed the same as 'household goods,' and marked on the said box the address and words 'household goods.'

"3. The said defendant upon learning the foregoing facts went to said station of the Oregon Short Line Railroad Company, on the 5th day of October, 1906, at Sugar City, Ida., and opened said box and found in said box the scalps referred to in the complaint in this cause and seized and took the same into his possession as said state fish and game warden, and still retained the same in his possession; that when the defendant took said scalps out of said box, they had no marks or tags of any kind on them and there were no other marks on the box except the ones indicated, and the plaintiff had never disclosed to anyone in Idaho what the box contained; the said shipment and scalps were not accompanied by a sworn statement of the plaintiff or anyone else showing that the said scalps were not procured contrary to any of the provisions of the fish and game laws of the state of Idaho. Said scalps were not stuffed nor were there any mounted heads among the scalps in question, and no work of any kind had been performed on any of them. The plaintiff is not, and was not at the time said scalps were seized by said game warden, a taxidermist, and he did not receive said scalps or any one of them as a taxidermist, and said scalps were not accompanied by an affidavit showing that the same were taken from animals killed in compliance with the game laws of the state of Idaho.

"4. That prior to the commencement of this action on or about the 1st day of June, 1907, the plaintiff...