Com. v. Moyers

• Decision Date: 05 November 1954
• Citation: Com. v. Moyers, 272 S.W.2d 670 (Ky. 1954)
• Parties: COMMONWEALTH of Kentucky, Appellant, v. Freeie MOYERS, Appellee.
• Court: Supreme Court of Kentucky

Page 670

272 S.W.2d 670

COMMONWEALTH of Kentucky, Appellant, v. Freeie MOYERS, Appellee.

Court of Appeals of Kentucky.

Nov. 5, 1954.

J. D. Buckman, Jr., Atty. Gen., H. D. Reed, Jr., Asst. Atty. Gen., Roy M. Vance, Commonwealth Atty., Paducah, for appellant.

C. Elwood Gordon, Earl T. Osborne, Benton, for appelle.

SIMS, Justice.

Appellee, Freddie Moyers, and his wife were tried in the quarterly court of McCracken County on a warrant charging them with violating a regulation of the Department of Fish and Wildlife Resources (hereinafter referred to as the Department) it put into effect under the authority of KRS 150.025(2)(d). Mrs. Moyers was acquitted but her husband was convicted and fined $25 and cost. He appealed to the McCracken Circuit Court, where at the conclusion of the Department's evidence the court directed a verdict in his favor. As the punishment under the statute can only be a fine, the Commonwealth has the right to appeal. Upon the judgment being reversed by this court there may be a new trial despite the former judgment of acquittal. Com. v. Williams, 230 Ky. 71, 18 S.W.2d 881, and authorities there cited.

It is provided in KRS 150.025:

'(1) If the commissioner, with the concurrence of the commission, and after giving due regard to the public recreation and sport afforded thereby, the economic value and breeding habits of any species, class, type or breed of wild life, either native or imported, finds that the supply thereof has become unduly depleted or finds that, because of adverse weather conditions, floods, disease, fire, inadequate food supply, breeding conditions, lack of cover, unequal distribution, excessive destruction or widespread violations of the fish and wild life laws or for any other reason, there is serious danger that the continued supply thereof may be depleted, the department shall adopt such regulations as may be necessary and proper to restore supply or to prevent the further depletion thereof. Such regulations may be made to apply to a limited area or to the entire state.

'(2) In carrying out the provisions of this section the department may, by regulations: * * *

'(d) Regulate the size or type of any device used for taking, and regulate any method of taking'.

In pursuance of this statute the Department put into effect this requlation:

'Article V. All commercial fishing with hoop nets and seines and other types of commercial gear, except trotlines and snag lines, are forbidden to be used, or placed, or possessed from the mouth of the Tennessee River where it flows into the Ohio River up to the Kentucky Dam on the Tennessee River.'

In a long and extemporaneous opinion delivered from the bench and reported by the official reporter, the circuit judge held the above quoted regulation was invalid because: 1. It contains no recital of facts to support, or upon which to base, the adoption of the regulation: 2. the regulation is unreasonable and violates § 59 of our Constitution prohibiting the enacting of local and special laws: 3. there was no regulation within the meaning of KRS 13.080, subsection 2, and the purported regulation is of no effect.

The first objection of the learned trial judge to the regulation may be answered in a few words. There is nothing in the statute which requires a regulation of the Department to recite the facts upon which it is adopted unless an emergency exists. In the event of an emergency, the regulation shall state facts and circumstances which give rise to the emergency. KRS 150.025(4). The Legislature in requiring the regulation to state the facts and circumstances which give rise to the emergency made it plain there was no legislative intent to have the regulation incorporate the facts or findings of the Department upon which it based a regulation where no emergency exists. In Pacific States Box & Basket Co. v. White, 296 U.S. 176, 185, 56 S.Ct. 159, 163, 80 L.Ed. 138, 146, a similar attack was made upon a regulation and in answer to it the court said:

'But where the regulation is within the scope of authority legally delegated the presumption of the existence of facts justifying its specific exercise attaches alike to statutes, to municipal ordinances, and to orders of administrative bodies.'

There is nothing unreasonable about the Department's regulation as the statute expressly authorizes the Department to regulate 'the size or type of any device used for taking, and regulate any method of taking' of fish or wild life. Nor is there any force in the argument that the regulation violates § 59 of our Const...