Bittenhaus v. Johnston

• Decision Date: 27 March 1896
• Citation: 92 Wis. 588,66 N.W. 805
• Parties: BITTENHAUS v. JOHNSTON ET AL.
• Court: Wisconsin Supreme Court

92 Wis. 588

66 N.W. 805

BITTENHAUS

v.JOHNSTON ET AL.

Supreme Court of Wisconsin.

March 27, 1896.

Appeal from Winnebago county court; C. D. Cleveland, Judge.

Action by C. Bittenhaus against C. W. Johnston and others. From a judgment of the county court affirming a judgment for the defendants, plaintiff appeals. Affirmed.W. W. Waterhouse and H. J. Gerphide, for appellant.

Thompson, Harshaw & Thompson and C. E. Whelan, for respondents.

CASSODAY, C. J.

This is an action of replevin, commenced August 9, 1895, before a justice of the peace in Oshkosh, to recover 12 gill nets, of the value of $60, alleged to have been unjustly taken and detained by the defendants. The defendants answered by way of denials, and justified the seizure and destruction of the nets as fish and game wardens of the state, under chapter 221, Laws 1895. On the trial before the justice the plaintiff proved the ownership and value of the nets, and admitted that he had placed the nets in the waters of Lake Winnebago for the purpose of fishing, and that the defendants were such fish and game wardens. The defendants admitted that they, as such fish and game wardens, took the nets from such waters and destroyed them. A trial by jury having resulted in a verdict in favor of the defendants, judgment was entered thereon accordingly, from which the plaintiff appealed to the county court. Upon the trial in that court it was stipulated that the case be decided by the court upon the record certified by the justice; and it was thereupon decided, accordingly, by that court, in favor of the defendants. From the judgment entered therein, in favor of the defendants, and upon the certificate of the trial judge as required by chapter 215, Laws 1895, the plaintiff brings this appeal. Chapter 221, Laws 1895, appears first on pages 367-396, inclusive, and again on pages 397-426, inclusive. There are some discrepancies between the chapter as thus first presented and as thus subsequently presented; but they both purport to have been approved and published on the same day, and they both have the same title, and are numbered the same, and are the same throughout, except in certain particulars, not material on this appeal, since the portions of the act here involved, are the same in both publications. Counsel contend that the act in question is unconstitutional and void upon several grounds.

1. It is claimed that certain clauses of the act are repugnant to the constitutional provisions which declare that: “No * * * ex post facto law * * * shall ever be passed.” Const. Wis. art. 1, § 12. “No state shall * * * pass any * * * ex post facto law.” Const. U. S. art. 1, § 9. “By an ex post facto law,” said Field, J., “is meant one which imposes a punishment for an act which was not punishable at the time it was committed, or imposes additional punishment to that then prescribed, or changes the rules of evidence, by which less or different testimony is sufficient to convict than was then required.” Cummings v. Missouri, 4 Wall. 325, 326. See, also, Medley, Petitioner, 134 U. S. 160, 10 Sup. Ct. 384;Duncan v. Missouri, 152 U. S. 377, 14 Sup. Ct. 570. This rule is uniformly recognized in all well-considered adjudications upon the subject. It is equally well settled that a general law for the punishment of offenses, which endeavors by retroactive operation to reach acts before committed, and also provides a like punishment for the same acts in future, is void only so far as it is retrospective, and valid as to future cases within the legislative control. Joehne v. New York, 128 U. S. 189, 9 Sup. Ct. 70. In the case at bar the act complained of was committed nearly four months after the passage and publication of the law in question, and hence that chapter cannot be regarded as an ex post facto law, as to that act. This being so, we are not called upon to determine whether any provision of the chapter was thus retroactive, and hence, to that extent, an ex post facto law.

2. Counsel contend that the law in question is class legislation, and therefore void. This seems to be put on the ground that the act makes certain “regulations for the outlying waters of the state” (sections 12-15), and certain other “regulations for the inland waters” of the state (section 16), and certain “provisions applying to certain localities or waters only” (sections 33-38a), and particularly because “the waters of Rush Lake” are thereby “exempted from the provisions” of the “act relating to regulations upon the methods or times of taking, catching or killing fish” (section 36). We are referred to no clause of our state constitution which condemns such legislation as class legislation, and we have found none. It certainly does not belong to any of the nine classes of cases in regard to which “the legislature is prohibited from enacting any special or private laws.” Const. art. 4, § 31. The constitutions of some of the states expressly prohibit every kind of local or special legislation. As indicated, such prohibition in this state is only partial. As often said, and always conceded, our state constitution is not so much a grant as a limitation of powers; and hence the state legislature has authority to exercise any and all legislative powers not delegated to the federal government, nor expressly or by necessary implication prohibited by the national or state constitution. State v. Forest Co., 74 Wis. 615, 43 N. W. 551;State v. Cunningham, 83 Wis. 146, 53 N. W. 35. The law in question is entitled “An act to revise, amend and consolidate the laws of the state relating to game and its preservation, fish and the preservation and propagation thereof.” To legislate intelligently upon such a subject, there must be a legislative discretion as to the different kinds of fish, and as to the different waters in which they are or may be found. The exercise of such legislative discretion in the instant case does not seem to be condemned, as class legislation, by any clause of our state constitution.

3. But it is claimed to be class legislation within the meaning of the clause of the federal constitution, which declares that “no state shall make or enforce any law which shall * * * deny to any person within its jurisdiction the equal protection of the laws.” Amend. art. 14, § 1. This clause was clearly intended to prevent hostile discrimination against any individual, or class of individuals, by the statutes of any state. Slaughterhouse Cases, 16 Wall. 36;Pembina Con. Silver Mining & Milling Co. v. Pennsylvania, 125 U. S. 188, 8 Sup. Ct. 737;In re Kemmler, 136 U. S. 448, 10 Sup. Ct. 930. “Class legislation, discriminating against some and favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if, within the sphere of its operation, it affects alike all persons similarly situated, is not within the amendment.” Barbier v. Connolly, 113 U. S. 32, 5 Sup. Ct. 357. In speaking of that constitutional provision, it was said by Mr. Justice Field that it “does not prohibit legislation which is limited either in the objects to which it is directed, or by the territory within which it is to operate. It merely requires that all persons subject to such legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.” Hayes v. Missouri, 120 U. S. 71, 7 Sup. Ct. 350. There is no pretense that the act in question contains any hostile discrimination against any person, or any class of persons. True, it makes certain things unlawful, and prescribes certain penalties, forfeitures, and punishments for violations of the law, but they are alike applicable to any and all persons who violate the law. Under the authorities cited, it is very clear that the mere fact that the statute in question is applicable to certain localities and waters, and discriminates between different kinds of fish, does not make it class legislation, within the...