Ex Parte Helton

• Decision Date: 13 March 1906
• Citation: 117 Mo. App. 609,93 S.W. 913
• Parties: Ex parte HELTON.
• Court: Missouri Court of Appeals

93 S.W. 913

117 Mo. App. 609

Ex parte HELTON.

St. Louis Court of Appeals. Missouri.

March 13, 1906.

Rehearing Denied April 10, 1906.

1. GAME—PROTECTION—SHIPMENT—STATUTES.

Laws 1905, pp. 168, 169, provide for the licensing of persons to hunt within the state, and sections 69 and 70, pp. 170, 171, make it unlawful for any person, who has lawfully killed game in the state, to transport it out of or within the state except with a permit, unless it is in his possession or is carried openly as baggage or express by him, and that any person, company, corporation, or common carrier, before shipping or transporting any birds or game, must ascertain if the person offering same for shipment is at the time in possession of a license to hunt issued to him. Held, that no hunter is entitled to ship game without a hunting license issued to him, regardless of the county in which the game is killed, the place where it is offered for shipment or the point of destination.

2. SAME—LAWFUL KILLING—EVIDENCE.

The only evidence that game offered for shipment has been lawfully killed under sections 69 and 70, is that the person having the game in his possession and offering it for shipment has a license to hunt issued to him.

3. STATUTES — CONSTRUCTION — LEGISLATIVE JOURNALS.

In construing a new statute of doubtful meaning, it is proper for the court to resort to the journals of the legislative assembly showing the original bill and amendments made thereto, to ascertain the intent of the Legislature.

4. GAME—LICENSES — STATUTES — CONSTRUCTION.

Laws 1905, pp. 168, 169, § 54, declares that it shall be unlawful for any person to hunt in the state "outside of the county in which he lives" without first obtaining a license permitting him or her to do so, and section 58 declares that any person who has been a bona fide resident of the state for six months may obtain a license provided that the section shall not apply to owners and tenants of farm lands, who may hunt on their lands without obtaining a hunting license. Held, that such act does not require a resident of the state to obtain a hunter's license, as a condition precedent to his right to hunt in the county in which he resides.

Habeas corpus on petition of Virgil Helton. Petitioner discharged.

John G. Cable, for petitioner.

BLAND, J.

On an information, filed before a justice of the peace, charging him with hunting game in his own county (Marion), the petitioner was convicted, fined $25 and committed to jail until he should pay said fine.

In his petition for discharge on writ of habeas corpus, the petitioner alleges that his conviction and imprisonment are without warrant of law. His contention is that there is no law requiring a resident of this state to take out a hunting license to hunt in the county where he resides. This brings up for construction sections 54, 57, 58, 59, and 61, of the act relating to the propagation and preservation of game and fish, approved March 10, 1905 (Laws 1905, pp. 168, 169). Said sections are as follows:

"Sec. 54. It shall be unlawful for any person, after the passage of this act, to hunt in this state outside of the county in which he lives, without first obtaining a license permitting him or her to do so. Such license shall be dated when issued, and shall authorize the person named therein to hunt during that year, and then only subject to the regulations and restrictions provided by law."

"Sec. 57. County clerks and the license collector of the city of St. Louis shall issue resident licenses under the seal of their office to all persons complying with the provisions of this act and shall sign the same and shall require the person to whom the license is issued to sign his name in the margin thereof. He shall keep a correct and complete record of all licenses issued in a book to be furnished by the state game and fish warden, which record shall remain in his office and be open to the inspection of the public at all times. Such clerk and the license collector of the city of St. Louis shall retain out of the moneys received for each license issued the sum of fifteen cents which shall cover the swearing of the applicant to the affidavit herein referred to and all other services under this act, and shall pay the balance to the state treasurer on the first day of each month, and report to the state game and fish warden the number of licenses issued and the amount of money remitted to the state treasurer on the first day of each month. Any person violating any of the provisions of this act shall be deemed guilty of a misdemeanor and upon conviction be fined not less than $25.00 nor more than $100.00 and costs of prosecution.

"Sec. 58. Any person who has been a bona fide resident of this state for six months then last past may procure a license for himself or herself by filing his (or her) affidavit with the clerk of the county where he or she resides, stating his or her name, age, place of residence, post office address, the color of his (or her) hair and eyes, and the fact of whether he or she cannot write his or her name, paying to said clerk the sum of $1.00: Provided, that this section shall not apply to owners and tenants of farm lands, who may hunt on their lands without obtaining a hunting license.

"Sec. 59. For the purpose of carrying out the provisions of this act, the license collector of the city of St. Louis shall correspond to the county clerks of the various counties of this state. Such license collector shall be provided with the necessary license blanks and affidavit blanks and license record. He shall issue resident hunters' licenses and collect therefor a fee of $1.00 each, and for each license issued such license commissioner shall collect and retain for issuing the same a fee of fifteen cents. He shall keep such records relating to licenses issued and make such reports to the state game and fish warden concerning the same as the provisions of this act required of county clerks."

"Sec. 61. Any person who shall hunt in this (state) without being at the time of such hunting in possession of a license, as herein provided, duly issued to him or her, which license shall cover the period in which he or she shall be so hunting or who shall furnish to another person a license issued to him or her, shall be fined not less than $25.00 nor more than $100.00 and costs of prosecution."

As indicated by its title, the purpose of the act is to propagate and protect game animals, birds, and fish; the ownership and title to which, by the first section of the act, is declared to be in the state. The Legislature, having so declared, proceeded to make provisions for the propagation and protection of this species of property of the state. The office of state game warden, at a salary of $2,000 per annum, was created, and provisions made for the appointment of deputy game wardens. The duties of these officers were defined and the sum of $50,000 appropriated to pay their salaries and expenses incurred in seeing that the act is enforced. Section 64 provides that all licenses, fines, penalties and forfeitures, collected under the act, shall be turned over to the state treasurer to constitute a fund to be known as the "Game Protection Fund." This fund is only available for the payment of salaries and expenses of the game warden and his deputies. The act regulates the shipment of game, and prohibits the shipment of any game not lawfully killed. Section 69 makes it unlawful for any person, who has lawfully killed game in the state, to ship or transport out of or within the state (except under permit) any protected game, unless the same is in his possession or carried openly as baggage or express by him. Such owner must have in his possession at the time, a resident or nonresident license to hunt, duly issued to him under the provisions of the act. Section 70 provides that any person, company, corporation, or common carrier, before shipping or transporting any birds or game, must ascertain if the person offering such birds or game for shipment is at the time in possession of a hunting license duly issued to him. These sections make it obvious that no hunter can lawfully ship game without he has a hunting license, regardless of the county in which the game was killed or the place where offered for shipment or the point of destination. No person can receive for shipment, and no common carrier can carry game or birds unless they have been lawfully killed; and the sole and only evidence that they have been lawfully killed, under the provisions of the two sections above, is that the person having the game in his possession and offering it for shipment has a license to hunt issued to him. The license to be issued is not a county or local license; whether issued to a nonresident, under the provisions of section 56, or to a resident under the provisions of sections 58 or 59, it authorizes the holder to hunt in any county in the state. There is no provision whatever in the act for the issuance of a license by the county clerk of one county to a resident of another county. The resident can only obtain a license from the clerk of the county where he lives. To obtain this license he must have been a bona fide resident of the state for at least six months next before his application for the license. He must make the required affidavit and pay the license fee of $1. This section contains the following proviso: "Provided, that this section shall not apply to owners and tenants of farm lands, who may hunt on their lands without obtaining a hunting license."

It is declared by section 61 that "any person who shall hunt in this (state) without being at the time of such hunting in possession of a license, as herein provided, duly issued to him," etc., "shall be fined not less than $25.00 nor more than $100.00 and costs of prosecution." "As herein provided," means and can mean nothing else, than that the hunter must have in his possession a hunting license,...