Bohman v. Gould

• Decision Date: 17 December 1926
• Docket Number: No. 25685.,25685.
• Parties: BOHMAN et al. v. GOULD, State Game and Fish Com'r.
• Court: Minnesota Supreme Court

211 N.W. 577

169 Minn. 374

BOHMAN et al. v. GOULD, State Game and Fish Com'r.

No. 25685.

Supreme Court of Minnesota.

December 17, 1926.

Appeal from District Court, Koochiching County; C. W. Stanton, Judge.

Suit by Frank Bohman and others against J. F. Gould, State Game and Fish Commissioner, for an injunction. From an order sustaining a demurrer to their complaint, plaintiffs appeal. Affirmed.

David Hurlburt, of International Falls, for appellants.

C. L. Hilton, Atty. Gen., for respondent.

WILSON, C. J.

Plaintiffs appealed from an order sustaining a demurrer to their complaint as not stating facts sufficient to constitute a cause of action.

Chapter 195, Laws 1925, amending G. S. 1923, § 5598, became effective April 13, 1925. It authorized the taking of fish from certain lakes therein named, provided a license to do so should first be obtained from the commissioner, and "provided further, no commercial fishing shall be authorized by the commissioner in Kabetogama Lake after January 1, 1926."

For several years plaintiffs have been engaged in commercial fishing in this lake. In their business they own boats, nets, building, docks, and other equipment. On May 27, 1925, the commissioner in form licensed plaintiffs to use nets in said lake in commercial fishing to May 15, 1926, excepting the months of November, April, and May.

Plaintiffs seek to restrain the commissioner from enforcing the restriction on the use of the lake after January 1, 1926, and ask that we hold this statute, in this particular, void.

Plaintiffs contend that the law is invalid because it deprives them of their property without due process of law, and that total prohibition of commercial fishing on this lake is an unwarranted exercise of police power.

1. The police power of the state authorizes it to pass any law reasonably necessary to prevent the extermination or undue depletion of game or fish. Waldo v. Gould, 165 Minn. 128, 206 N. W. 46; State v. Mrozinski, 59 Minn. 465, 61 N. W. 560, 27 L. R. A. 76; State v. Rodman, 58 Minn. 393, 59 N. W. 1098; State v. Shattuck, 96 Minn. 45, 104 N. W. 719, 6 Ann. Cas. 934; State v. Tower Lbr. Co., 100 Minn. 38, 110 N. W. 254; Geer v. Connecticut, 161 U. S. 519, 16 S. Ct. 600, 40 L. Ed. 793. The title to fish and game is vested in the state in its sovereign capacity for the benefit of the people. Waldo v. Gould, supra; G. S. 1923, § 5496; Geer v. Connecticut, supra; State v. Shattuck, supra.

2. Whether there is a necessity for such measure and whether the particular enactment tends to accomplish the purpose are primarily legislative questions. State v. Fairmont Creamery Co., 162 Minn. 146, 202 N. W. 714, 42 A. L. R. 548; State v. Adams, 142 Ark. 411, 218 S. W. 845; Rast v. Van Deman & Lewis, 240 U. S 342, 36 S. Ct. 370, 60 L. Ed. 679, L. R. A. 1917A, 421, Ann. Cas. 1917B, 455. The legislative determination of what is proper exercise of its police powers is neither final nor conclusive, but subject to the supervision of the courts. Lawton v. Steele, 152 U. S. 133, 14 S. Ct. 499, 38 L. Ed. 385. The record is free from anything calling for judicial interference. There is nothing involved that is purely arbitrary and unreasonable. Nelson v. City of Minneapolis, 112 Minn. 16, 127 N. W. 445, 29 L. R. A. (N. S.) 260.

3. The Legislature is to determine the extent and manner in which fish may be taken. Hence it may, if it sees fit, make legislation applicable only to a particular lake. Lewis v. State, 110 Ark. 204, 161 S. W. 154; Stinson v. State, 63 Fla. 42, 58 So. 722; State v. Savage, 96 Or. 53, 184 P. 567, 189 P. 427.

4. Appellants' license was issued after the enactment of this law. It was erroneously made to cover a part of the prohibited time. To this extent the license was void. The plaintiffs apparently face a loss in the diminution of the value of their property which they can no longer use on the...