Horne v. State

• Decision Date: 16 June 1930
• Docket Number: No. 7714.,7714.
• Citation: 170 Ga. 638,153 S.E. 749
• Parties: HORNE et al. v. STATE.
• Court: Georgia Supreme Court

170 Ga. 638

153 S.E. 749

HORNE et al.

v.STATE.

No. 7714.

Supreme Court of Georgia.

June 16, 1930.

Syllabus by Editorial Staff.

Laws 1925, p. 308, § 23, empowered state board of game and fish to regulate or prohibit taking of fish from any stream or other waters of state during certain months on recommendation of grand jury.

Laws 1925, p. 308, § 23, provided that, on recommendation of grand jury, board of game and fish are empowered to regulate taking of fish from stream during months in which fish commonly spawn, and that, when recommendation has been made by grand jury, it shall be duty of board of game and fish to pass order carrying out recommendation of grand jury and publish same. Const. art. 1, § 1, par. 23, provided for separation of legislative, judicial, and executive powers.

Laws 1925, p. 308, § 23, provided that order of state board of game and fish, made on recommendation of grand jury that closed fishing season is established, should be advertised in county affected in newspaper of general circulation once a week for four weeks, and shall not be effective until thus advertised.

Error from City Court of Ludowici; D. L. Stanfield, Judge.

M. B. Horne and others were convicted of violating the fishing laws, and they bring error.

Affirmed.

W. C. Hodges, of Hinesville, and H. M. Hodges, of Ludowici, for plaintiffs in error.

Chalmers Chapman, of Ludowici, for the State.

Syllabus Opinion by the Court.

GILBERT, J.

1. The court did not err in overruling the special demurrers. The indictment was not vague, nor indefinite, nor uncertain. It was not necessary that the indictment should name the particular portion of the stream where the defendants had fished. A charge in the indictment that the defendants had fished in the named fresh-water stream within Long county was sufficient. It was not essential that the indictment should specify what was the closed season for fishing in Long county. That was a matter of law and not of fact.

[3} 2. Section 23 of the Act of 1925 (Ga. Laws 1925, p. 308) is not unconstitutional and void on the ground that it is violative of article 1, § 1, par. 23 (Civil Code of 1910, § 6379) of the Constitution of this state, which provides: "The legislative, judicial, and executive powers shall forever remain separate and distinct, and no person discharging the duties of one shall at the same time exercise the functions of either of the others, except as herein provided." Such act does not undertake, as contended, "to confer the right on the grand jury of Long County, Georgia * * * and the State Board of Game and Fish to enact a law prescribing a closed season for Long County." The General Assembly, under its constitutional power, enacted the law, and merely conferred upon the grand jury of the county the right and power to say whether and when such law should become operative in respective counties. Mayor, etc., of Brunswick v. Finney, 54 Ga. 317(6); Murphey v. Educational Board of Burke County, 71 Ga. 856; Caldwell v. Barrett, 73 Ga. 604; Haney v. Commissioners of Bartow County, 91 Ga. 770, 18 S. E. 28; Phinizy v. Eve, 108 Ga. 360, 33 S. E. 1007; Coleman v. Board of Education of Emanuel County, 131 Ga. 643(6), 63 S. E, 41; Southern Ry. Co. v. Melton, 133 Ga. 277, 288, 65 S. E. 665; Early County v. Baker County, 137 Ga. 126, 72 S. E. 905.

3. Other grounds of the general demurrer are mere repetitions of the grounds stated in the next preceding headnote, and the same are without merit.

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