People v. Zimberg

• Decision Date: 14 June 1948
• Docket Number: No. 68.,68.
• Citation: 33 N.W.2d 104,321 Mich. 655
• Parties: PEOPLE v. ZIMBERG. PEOPLE v. GENOFF.
• Court: Michigan Supreme Court

321 Mich. 655

33 N.W.2d 104

PEOPLE

v.ZIMBERG.

PEOPLE

v.GENOFF.

No. 68.

Supreme Court of Michigan.

June 14, 1948.

Appeal from Recorder's Court of Detroit; W. McKay Skillman, judge.

Sam Zimberg and Mary Genoff were convicted of having in their possession with intent to sell in the City of Detroit yellow pickerel of less than a certain length taken from the waters of Lake Erie, and they appeal.

Affirmed.

Before the Entire Bench.

Harry H. Wachs, of Detroit, for appellants.

Edmund E. Shepherd, Sol. Gen., of Lansing, and James N. McNally, Pros. Atty., for Wayne County, Robert N. Smiley and Herbert Burdick, Asst. Pros. Attys. for Wayne County, all of Detroit, for the People.

DETHMERS, Justice.

Defendants were convicted of violating Act No. 84, § 14, Pub. Acts 1929, as amended by Act 323, Pub. Acts 1945 (Comp.Laws Supp. 1945, § 6320, Stat. Ann. 1947 Cump.Supp. § 13.1505), which reads in part as follows:

‘It shall be unlawful to market, have in possession, transport or offer for sale * * * (i) pike-perch (yellow pickerel), of a less length than 15 1/2 inches * * * Provided, That pike-perch (yellow pickerel not less than 13 inches in length may be taken from Lake Erie: Provided further, That pike-perch (yellow pickerel) not less than 13 inches in length taken from the waters of Lake Erie may be sold or offered for sale at a dock or docks along Lake Erie: Provided further, That any such pike-perch (yellow pickerel) of a length less than 15 1/2 inches shall not be otherwise offered for sale, bartered or sold within the limits of the state * * *.’

The fish which defendants were charged with having in their possession in the city of Detroit with intent to sell were pikeperch (yellow pickerel), all over 13 and under 15 1/2 inches in length, taken from Lake Erie during open season and sold, by the fishermen who caught them, at docks along Lake Erie to the American Fish Company, which resold them to defendants.

Defendants assail the constitutionality of the act and contend that after permitting the taking and sale at docks along Lake Erie of 13 inch pike-perch the Legislature may not prohibit the resale thereof elsewhere in the state.

It is universally held in this country that wild game and fish belong to the state and are subject to its power to regulate and control; that an individual may acquire only such limited or qualified property interest therein as the state chooses to permit. In People v. Soule, 238 Mich. 130, 213 N.W. 195, 197, we said:

‘This conservation legislation is clearly an exercise of the police power inherent in the state. The wild game and fish (ferae naturae) within its confines belong to the state. No private ownership or private property rights are involved in this inquiry. McKinney v. Farnsworth, 121 Me. 450, 118 A. 237.’

For cases involving the exercise of the state's powers to regulate and control the having in possession or taking of fish from waters within the jurisdiction of this state see Osborn v. Circuit Judge, 114 Mich. 655, 72 N.W. 982;People v. Dornbos, 127 Mich. 136, 86 N.W. 529;People v. Lassen, 142 Mich. 597, 106 N.W. 143;People v. Setunsky, 161 Mich. 624, 126 N.W. 844, and cases cited therein.

In Ex parte Maier, 103 Cal. 476, 37 P. 402, 404,42 Am.St.Rep. 129, it is said:

‘The wild game within a state belongs to the people in their collective, sovereign capacity. It is not the subject of private ownership, except in so far as the people may elect to make it so; and they may, if they see fit, absolutely prohibit the taking of it, or traffic and commerce in it, if it is deemed necessary for the protection or preservation, of the public good.’

To the same effect see Magner v. People, 97 Ill. 320;Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793, and cases therein cited.

As owner of wild game and fish the state may permit the taking thereof on terms and conditions and restrict their subsequent use.

‘The general doctrine is well stated in 19 Cyc. p. 1006. The rule is there thus laid down: ‘It is well established that, by reason of the state's control over fish and game within its limits, it is within the police power of the state Legislature, subject to constitutional restrictions, to enact such general or special laws as may be reasonably necessary for the protection and regulation of the public's right in such fish and game, even to the extent of restricting the use of or right of property in the game after it is taken or killed; and such statutes have been enacted in probably all jurisdictions. * * *’' Ex parte Blardone, 55 Tax.Cr. 189, 115 S.W. 838, 839.

In Geer v. Connecticut, supra, the court upheld the constitutionality of an act prohibiting the killing or possession of game birds for the purpose of transporting them beyond the state, quoting with qpproval from State v. Rodman, 58 Minn. 393, 59 N.W. 1098, 1099, the following:

“* * * and it is within the police power of the state, as the representative of the people in their united sovereignty, to enact such laws as will best preserve such game, and secure its beneficial use in the future do the citizens, and to that end it may adopt any reasonable regulations, not only as to time and manner in which such game may be taken and killed, but also imposing limitations upon the right of property in such game after it has been reduced to possession. Such limitations deprive no person of his property, because he who takes or kills game had no previous right of property in it, and, when he acquires such right by reducing it to possession, he does so subject to such conditions and limitations as the legislature has seen fit to impose.”

See, also, State v. Northern Pac. Exp. Co., 58 Minn. 403, 59 N.W. 1100;State v. Dow, 70 N.H. 286, 47 A. 734,53 L.R.A. 314;State v. Heger, 194 Mo. 707, 93 S.W. 252;State v. Leavitt, 105 Me. 76, 72 A. 875, 26 L.R.A., N.S., 799.

In Thompson et al. v. Dana et al., D.C., 52 F.2d 759, it was held that the privileges and immunities guaranteed to citizens of the United States by the 14th amendment to the federal constitution do not include the right to fish in the waters of a state nor may citizens of the state assert such right under that amendment unless the right is one guaranteed thereby to every citizen of the United States. With ownership of wild game reposing in the state, and individuals enjoying only such limited ownership as the state may grant, the state's refusal to grant unqualified ownership with all the incidents of ownership, such as the right of sale, is not, as defendants urge, the taking of property without due process of law.

Defendants also contend that the act is unconstitutional on the ground that its restriction of the sale of such fish to sales made at docks along Lake Erie denies defendants equal protection under the law, constitutes class legislation and amounts to an arbitrary, unreasonable and capricious classification.

In Thompson et al. v. Dana et al., supra, the court held constitutional an Oregon act prohibiting angling from boats on some of the state's streams or portions thereof and permitting it on others. In ...