Moore v. Bell

• Decision Date: 03 March 1926
• Docket Number: 458.
• Parties: MOORE ET AL. v. BELL ET AL.
• Court: North Carolina Supreme Court

131 S.E. 724

191 N.C. 305

MOORE ET AL. v. BELL ET AL.

No. 458.

Supreme Court of North Carolina

March 3, 1926

Appeal from Superior Court, Mecklenburg County; Webb, Judge.

Bill by A. Wylie Moore and others, on behalf of themselves and of other citizens and residents of the State of North Carolina against B. B. Bell and others, members of the Game Commission of Currituck County. From a temporary restraining order defendants appeal. Order reversed, and bill dismissed.

Action by plaintiffs, citizens and residents of the state of North Carolina, to restrain and enjoin defendants, members of the game commission of Currituck county, from enforcing the provisions of certain statutes enacted by the General Assembly of North Carolina, creating a game commission for Currituck county and conferring upon said commission certain powers relative to the protection of game in said county upon the ground that said statutes are in violation of the Constitution of North Carolina and therefore void. From order restraining and enjoining defendants from acting as members of said game commission, or in any way carrying out or attempting to carry out the provisions of said statutes until the final hearing of the action, defendants appealed to the Supreme Court.

No person has right to fish within state except as such right is conferred by state.

A. M. Simmons, of Currituck C. H., and J. C. B. Ehringhaus, of Elizabeth City, for appellants.

C. A. Cochran and Cansler & Cansler, all of Charlotte, for appellees.

CONNOR J.

Section 1 of chapter 266, Public Local Laws 1921, entitled, "An Act for the Improvement of the Roads and for the Better Protection of Game in Currituck County," is as follows:

"Section 1. That no one shall hunt, shoot, kill or trap any wild duck, geese, brant or other wild fowl, or act as guide to any one so engaged, from shore, marsh, blind, battery or other floating device on or adjacent to the waters of Currituck Sound or its tributaries in Currituck county unless he shall have obtained from the clerk of the superior court of Currituck county a hunter's license as is hereinafter provided."

Section 2 of said chapter prescribes the amounts to be charged for a hunter's license, and makes it the duty of the clerk of the superior court of Currituck county to issue license upon receipt by him of application therefor and payment by the applicant of the amount prescribed by the statute. This amount varies, dependent upon whether or not the applicant is a resident of the state of North Carolina, and, if he is a resident of the state, whether or not he is a resident of Currituck county. The amount to be paid by a nonresident of the state is $75, with a fee of $2 to the clerk; by a resident of the state, who is not a resident of Currituck county, $5, with a fee of 50 cents to the clerk; and by a resident of Currituck county, a fee of 25 cents to the clerk. All applicants for a hunter's license who are not residents of said county are required to furnish information in their applications for the purpose of identification.

Section 3 of said chapter provides that no one but a resident of Currituck county shall own or operate a battery or other floating device used in the hunting of wild fowl on the waters of Currituck Sound or its tributaries in Currituck county, and requires that a resident of said county who owns or operates such battery or other device shall secure from said clerk a battery license, for which the sum of $25, with a fee of 50 cents to the clerk, is to be charged; the number of batteries for any one season is limited to 30, and priority in the issuance of battery licenses is given by the statute to persons who owned and operated batteries during the season of 1919-1920, provided applications are made by such persons not later than October 15. After said date, priority is given to applicants in the order of the filing of their applications. The owner of a battery may sell and transfer his battery, together with his right to priority in the issuance of license for the succeeding season, as provided in the statute.

Section 10 of said chapter provides that:

"The funds received by the clerk of the superior court from the sale of licenses provided for in this act shall be turned over to the treasurer of Currituck county, and from the funds so received the said treasurer shall pay such sums as may be approved by the game commission, hereinafter provided for, as necessary to secure the proper enforcement of the game laws in Currituck county, and shall turn the balance of such money into the road fund of said county."

Section 11 of said chapter prescribes penalties for violations of the provisions of the statute. The minimum penalty is a fine of $25; the court is empowered to impose a fine of twice the amount fixed by statute for a proper license upon any one convicted for such violation. In addition to the fine, a license issued in accordance with the provisions of the statute may be revoked, when the holder of such license has been convicted of a violation of any of the provisions of the statute applicable to him.

Section 12 of said chapter provides for a game commission for Currituck county to consist of five members; three of these are the clerk of the superior court, the chairman of the board of county commissioners, and the chairman of the road commission of said county, who are members ex officio; the other two members are citizens of Currituck county elected by the three members ex officio. It is provided that members ex officio shall serve during the terms of their respective offices; each of the two elected members holds for a term of two years.

"The game commission shall have charge of the enforcement of this and all game laws of Currituck county and the appointment of a game warden or of game wardens and shall fix his or their compensation. The said commission is authorized and empowered to prescribe rules and regulations for the enforcement of the game laws and the protection of the game in said county, not inconsistent with the provisions of this act.

The game commission herein established shall have the power to reduce the license fees named in this act to such sums as they may find to be best from a revenue standpoint for Currituck county. The said game commission shall also have the power, and it shall be its duty to make such additional rules and regulations in regard to applications for and the granting of licenses as the actual operation of this law and its interpretation by the courts may disclose to be helpful in or necessary to the reasonable execution and enforcement of the law: Provided, such rules and regulations shall not be inconsistent with the terms of the act itself, or with the law of the land."

It is further provided that:

"If any section or subsection of this act shall be repealed or held invalid, all the other sections and subsections shall remain in full force and effect."

Chapter 266, Pub. Loc. Laws 1921, was amended by chapter 168, Pub. Loc. Laws Extra Session 1921, and was further amended by chapter 543, Pub. Loc. Laws 1925. Chapter 488, Pub. Loc. Laws 1923, entitled, "An act for the better protection of game in Currituck county," provides:

"That any person or persons using a stationary or float blind in the waters of Currituck Sound for the accommodation of sportsmen shall pay a license tax to said county of five dollars on each and every blind so used. Said license to be issued by the clerk of the superior court of said county. The said clerk's fee shall be fifty cents for each and every set of license used under this act."

Any person convicted of the violation of this act shall pay a fine of $10. All sums collected for licenses under this act shall be applied to the highways of Currituck county.

Plaintiffs allege that said statutes are invalid, for that they are revenue measures; it is admitted that the bills providing for their enactment were not read three several times in each house of the General Assembly, did not pass their three several readings in each house on three different days, and that the yeas and nays on the second and third readings were not entered on the journals as required by article 2, § 14, of the Constitution of North Carolina. Plaintiffs further allege that the statutes are invalid for that they arbitrarily and unlawfully discriminate in favor of residents of Currituck county and against residents of other counties in the state, with respect to the amount of the license fee for hunters in said county, and with respect to the ownership and operation of batteries or other floating devices used in the hunting of wild fowl on the waters of Currituck Sound and its tributaries in said county; and they further allege that said statutes are invalid for that they unlawfully and wrongfully undertake to create a monopoly and perpetuity in the ownership and right to operate batteries and other floating devices to be used in the hunting of wild fowl on the waters of Currituck Sound or its tributaries in said county for the benefit of a favored class, to wit, those persons who owned and operated such batteries or other floating devices during the season immediately preceding the enactment of the act.

Upon motion of plaintiffs, an order requiring defendants to appear before the resident judge of the Fourteenth judicial district, at Charlotte, N. C., to show cause why injunction prayed for in the complaint should not be granted, was served on defendants in Currituck county. At the hearing the court was of the opinion that the statutes are invalid upon all three grounds upon which they are attacked by plaintiffs, and thereupon ordered that:

"Defendants

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