Moore v. Bell, (No. 458.)

• Docket Nº: (No. 458.)
• Citation: 131 S.E. 724
• Case Date: March 03, 1926
• Court: United States State Supreme Court of North Carolina

131 S.E. 724

MOORE et al.
v.
BELL et al.

(No. 458.)

Supreme Court of North Carolina.

March 3, 1926.

(191 N.C.)

[131 S.E. 725]

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.

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

[131 S.E. 726]

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...