Lipinski v. Gould
| Decision Date | 17 February 1928 |
| Docket Number | 26,494 |
| Citation | 218 N.W. 123,173 Minn. 559 |
| Parties | M. N. LIPINSKI v. JAMES F. GOULD |
| Court | Minnesota Supreme Court |
Defendant appealed from an order of the district court for Ramsey county, Richard D. O'Brien, J. overruling his demurrer to the complaint, the trial court having certified the questions presented as important and doubtful. Affirmed.
Authority of game and fish commissioner to conduct fishing operations not terminated.
1. In conducting the fishing operations authorized by L. 1919, c 341, as amended, the game and fish commissioner was not acting as agent of the commission of public safety, and abolishing that commission did not terminate his authority to conduct such operations.
Act does not violate the constitution.
2. This act does not contravene the constitutional provision forbidding the state to engage in works of internal improvement.
Demurrer correctly overruled because commissioner bought fish.
3. The act does not authorize the commissioner to buy fish for the purpose of reselling them; and, as the complaint charges that he has been and intends to continue doing so, the demurrer was correctly overruled.
Moneys in state fish revolving fund are public funds.
4. The moneys appropriated to the state fish revolving fund are public funds.
States, 36 Cyc. p. 845 n. 66 New; p. 895 n. 43 New.
Clifford L. Hilton, Attorney General, and Chester S. Wilson, Assistant Attorney General, for appellant.
Alexander Fosmark, for respondent.
This is an appeal from an order overruling a demurrer to plaintiff's complaint, the trial court having certified that the questions presented are important and doubtful.
Plaintiff is a resident taxpayer of this state and is engaged in the business of buying and selling fish. Defendant is the state game and fish commissioner. Plaintiff alleges that acting under and pursuant to L. 1919, p. 365, c. 341, defendant has been, and intends to continue, conducting "state fishing operations," and has been and intends to continue, buying and selling in the open market game fish taken from Red Lake, and asks the court to enjoin defendant from engaging in state fishing operations and from buying and selling fish in the open market.
L. 1919, p. 365, c. 341, is included in G.S. 1923 as §§ 5604 to 5609, inclusive, and the references herein will be to those sections.
Plaintiff contends that the act merely authorized defendant to conduct state fishing operations as agent of the Minnesota commission of public safety which was established during the World War, and that defendant's authority to engage in such operations terminated when that commission passed out of existence December 31, 1920. The act cannot be given such a restricted operation. It contains nothing indicating that proceedings under it were in any way dependent upon or connected with the act establishing the commission of public safety or the doings of that body. On the contrary its provisions plainly show that it was intended as an independent act complete in itself, for it covers the entire subject matter with which it deals without regard to any other act and repeals all inconsistent acts. The fact that in § 5604 it directed that all moneys collected by the game and fish commissioner as agent of the commission of public safety in state fishing operations should be placed in the created by that section does not warrant the inference which plaintiff would draw therefrom.
Plaintiff further contends that the act contravenes the provision of Const. art. 9, § 5, which declares that, "The state shall never contract any debts for works of internal improvements, or be a party in carrying on such works," and is void for that reason. We are not of that opinion.
Fish in the public waters of the state are held by the state in its sovereign capacity for the benefit of the people of the state; and the state may adopt and carry out any measures necessary or proper for preserving them as a valuable food supply, and for increasing and improving such supply, and preventing its undue or unnecessary depletion. Bohman v. Gould, 169 Minn. 374, 211 N.W. 577; Schmidt v. Gould, 172 Minn. 170, 215 N.W. 215, and cases cited in these opinions. This is the plainly expressed purpose of the act. It authorizes the taking and removal of certain fish when necessary or advisable in order to cultivate, propagate and preserve the game fish.
"Works of internal improvements" within the meaning of the constitution do not include "works" constructed for and used by the state itself in the performance of its governmental functions. Rippe v. Recker, 56 Minn. 100, 57 N.W. 331, 22 L.R.A. 857; State ex rel. Smith v. Van Reed, 125 Minn. 194, 145 N.W. 967; 6 Ann. Cas. 307, note. The constitutional prohibition does not preclude the state from exploring for minerals and operating mines on state lands, although doing such work is not in the performance of a governmental function. State v. Evans, 99 Minn. 220, 108 N.W. 958, 9 Ann. Cas. 520. It does not preclude the state from furnishing funds for and carrying into effect measures intended to promote the public safety, preserve the public health or suppress disease. Schulte v. Fitch, 162 Minn. 184, 202 N.W. 719. If it prohibited such activities, the work carried on by the state to prevent forest fires, which in the past have taken a heavy toll of life and property, would be illegal. The employment of physicians and others to enforce quarantine regulations and carry into effect the measures adopted to guard against and suppress disease and the expenditure of state funds therefor would also be illegal.
The fish found in the public waters constitute a natural and valuable source of food. They are not private property in any sense, nor subject to the rules governing such property. They belong to the state in its sovereign capacity as the representative of all the people of the state; and the right of the state to control and prescribe the manner in which and the extent to which they may be taken springs from its duty to safeguard and conserve this source of food supply for the benefit of the people of the state. Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793. If the class of activities designated in the constitution as "works of internal improvements" were to be extended to include operations carried on by the state in its governmental capacity for the purpose of promoting the propagation...
To continue reading
Request your trial