Elliott v. State Fish & Game Commission, 1794

• Decision Date: 06 November 1951
• Docket Number: No. 1794,1794
• Citation: 84 A.2d 588,117 Vt. 61
• Court: Vermont Supreme Court
• Parties: ELLIOTT et al. v. STATE FISH & GAME COMMISSION.

Page 588

84 A.2d 588

117 Vt. 61

ELLIOTT et al. v. STATE FISH & GAME COMMISSION.

No. 1794.

Supreme Court of Vermont.

Nov. 6, 1951.

Ezra S. Dike, Bristol, for plaintiffs.

Clifton G. Parker, Atty. Gen., and Frederick G. Mehlman, Deputy Atty. Gen., for defendant.

Before JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ., and HUGHES, Superior judge.

JEFFORDS, Justice.

This is a petition brought under V.S. 47, §§ 6570 and 6571 requesting, in effect, that additional protection than that provided by statute be given to trout and black bear in the county of Addison. A hearing was duly held on the petition which resulted in two orders. These orders are numbered 24 and 25. The former gives additional protection to trout in that county and the latter such protection to black bear.

The present petitioners (hereinafter called the plaintiffs) appealed from these orders by a petition under the provisions of V.S. 47, § 6572 to the court of chancery of Washington county. By agreement and stipulation of the parties the hearing on the appeal was had upon the bill filed by the plaintiffs and the answer filed by the commission. After such hearing a decretal order was entered by the chancellor dismissing the petition of the plaintiffs and the temporary injunction which restrained the commission from putting into effect the above mentioned orders was dissolved. The case is here on exceptions of the plaintiffs.

The first exception briefed by the plaintiffs is to the refusal of the chancellor to make findings of fact. The ground of this exception as stated in the bill of exceptions is that such findings are required by statute.

By agreement and stipulation of the parties the hearing was had on the bill and answer. In its answer the defendant denied the allegations contained in three paragraphs of the plaintiffs' bill. The plaintiffs claim that there were thus disputed issues of fact in the case making necessary findings of fact.

The plaintiffs in their brief do not point out specifically the claimed statute made a basis of their ground for the exception. Neither do they point out which of the allegations are of facts. Certainly all of them are not such and the defendant says that none which were denied were factual. We will assume for present purposes that some of the allegations which were denied were of facts and we will overlook the somewhat deficient briefing of the plaintiffs in support of this exception.

No replication was filed to the answer. This being so, the facts set forth in the answer, if well pleaded must be taken as true and if the facts so stated constitute a full defense, the bill must be dismissed. Deerfield River Co. v. Wilmington Power & Paper Co., 83 Vt. 548, 551, 77 A. 862; Dyer v. Dean, 69 Vt. 370, 372, 37 A. 1113. There is no suggestion that such facts were not well pleaded.

The situation thus presented to the chancellor was that of facts alleged by the defendant to be taken by him as true and certain facts alleged by the plaintiffs which were denied. It is apparent that he could not make findings as to the denied facts except upon the taking of evidence. Such taking was waived by the plaintiffs when they agreed to have the case decided only on the bill and answer. It follows that the chancellor had as a basis for his order only such facts as were alleged in the bill and not denied and thus to be taken as true, chancery rule No. 21, § 2, and those which were alleged in the answer and not denied by a replication and to be so taken. The chancellor could only have found that the undenied facts alleged by both parties were true. This would have been a useless act, the performance of which the law does not require. The setting of a case for hearing on bill and answer is the equivalent of a demurrer to the answer. 19 Am.Jur., Equity, par. 278; 30 C.J.S., Equity, § 471, note 72. Here, as in the case of a demurrer, the undenied pleaded facts control.

The case of Raithel v. Hall, 99 Vt. 65, 70, 130 A. 749, cited by the plaintiffs in support of this exception is not in point. That case was heard by the chancellor on oral evidence. The statute cited in the opinion G.L. 1511, now V.S. 47, § 1302, which is the one apparently referred to in their ground for this exception does not here apply as it has to do with controverted questions of fact heard by a chancellor on oral testimony.

This exception is not sustained.

The next exception briefed is to the order of the chancellor on the ground that it is not supported or warranted by the pleadings or supported by findings.

At the close of the hearing which resulted in the orders above referred to the chairman of the commission made the following statement: 'Inasmuch as there was no opposition to either of the petitions this commission has granted both of these petitions. I think you are making a forward step in conservation and certainly are in accord with the other three counties in the state.'

The only claim of error briefed by the plaintiffs in support of this exception is based on the first sentence of the above quotation. They say that it is obvious that the petitions were granted by default; that it clearly appears from the record that the reason for granting the petitions was that no one appeared in opposition to them.

There was no denial of the answer by way of replication. Thus the facts therein set forth, if well pleaded, must be taken as true. Deerfield River Co. v. Wilmington Power & Paper Co., supra; Dyer v. Dean, supra. The defendant in its answer set forth in detail what transpired at the hearing from which the orders in question resulted. The evidence there taken is fully recited. In addition, in its answer the defendant alleges that consideration was given by it to its records relating to claims for damage caused by bear in Addison county. These claims covered the years 1941 to 1949 inclusive. The records showed that for the last 3 years of the period covered there had been no such claims made. The plaintiffs make no claim that these evidentiary facts were not well pleaded. They admit in their brief that the evidence pleaded could show, as they claim, that the orders were not properly made or, as the defendant claims, that they were proper.

In each of the orders it is stated that the commission has determined that for the public good and for the preservation of trout in one order and of black bear in the other, additional protection for such fish or animal is necessary in Addison county and therefore the orders are made.

In view of the foregoing facts and circumstances we do not believe that the statement of the chairman should be given the force and meaning contended for. Facts were pleaded to support each of the orders. In the case of the order relating to black bear it is shown that in its making consideration was given to records of the commission. In each of the orders it is stated that the commission has determined, as the reasons for issuing the orders, that they are for the public good and for the preservation of the subject matters of the orders. These reasons are in substantial compliance with those set forth in V.S. 47, § 6570 as the basis for such orders. It seems to us to be inconceivable that the commission as a basis for its determination wrongfully disregarded all of the evidence heard by it and what appeared from its own records and issued the orders on no factual basis but only because no one appeared in opposition. The language used by the chairman in closing the hearing was not well chosen but, for the reasons stated, it is not to be taken literally. This exception is not sustained.

The third and final exception briefed by the plaintiffs is to the chancellor's order. The ground of this exception is that 'the order is invalid because it is based on V.S. 47, §§ 6570-6574 inclusive which are unconstitutional delegations of power by the Legislature to the defendant commission to regulate hunting and fishing.' It is unnecessary to set forth in full these sections. For present purposes it is sufficient to say, as already indicated, that they authorize the fish and game commission upon a petition and after a hearing thereon to give protection, in addition to that afforded by chapter 279 of V.S. 47, to any species of game bird, quadruped or fish. If the commission determines that such additional protection should be given for the reasons stated in the statutes it 'may regulate or prohibit the taking of such species as the public good may require.' It is provided that the commission may make an order applying to any county or any part thereof.

The constitutional provision which the plaintiffs claim is here violated is § 63 of chapter 2 of our constitution which reads as follows: 'The inhabitants of this State shall have liberty in seasonable times, to hunt and fowl on the lands they hold, and on other lands not inclosed, and in like manner to fish in all boatable and other waters (not private property) under proper regulations, to be made and provided by the General Assembly.'

The plaintiffs say that in the case of hunting and fishing the constitution provides that all the regulations are to be made and provided by the General Assembly. In other words, they claim that the Legislature, because of the wording of § 63, cannot legally delegate any authority or power to the fish and game commission to make such regulations. This is their sole ground here relied upon in support of the exception now under consideration.

The only case cited us by either party and the only one which we have been able to find where this question was squarely raised is that of State v. Hall, 96 Vt. 379, 119 A. 884. In that case the question apparently was raised but it was not passed upon as it was not necessary that it be decided in order to make a final...