Rossmiller v. State

• Decision Date: 01 April 1902
• Citation: 89 N.W. 839,114 Wis. 169
• Parties: ROSSMILLER v. STATE.
• Court: Wisconsin Supreme Court

114 Wis. 169

89 N.W. 839

ROSSMILLER

v.STATE.

Supreme Court of Wisconsin.

April 1, 1902.

Syllabus by the Judge.

1. The legislative intent of a law being plain, that intent must be considered the sole purpose of the enactment, however unreasonable or absurd the law may appear when so viewed.

2. An exposition of the meaning of a law in the law itself cannot be departed from by the courts.

3. The title to the beds of navigable lakes within the state of Wisconsin is vested in the state in trust to preserve the same for the enjoyment of the people. The state has no proprietary right in such beds or in the water above the same, nor in the fish that inhabit such water or the fowls that resort thereto, or the ice that forms thereon, which it can deal in by sale or otherwise.

4. The power of the state over navigable waters within its boundaries is limited to the enactment and enforcement of such reasonable police regulations as may be deemed necessary to preserve the common right of all to enjoy the same for navigation by boats or otherwise, and all incidents of navigable waters, including the taking of ice therefrom for domestic use or sale.

5. The rights of the people in the navigable waters of the state are the same as those incident to tidal waters at common law. They are beyond the power of the state to interfere with, except by reasonable police regulations, as before indicated.

6. The state has no greater right to sell ice that forms upon navigable lakes than to sell the water thereof in a liquid state or the fish that inhabit the water. It can do neither, the whole beneficial use of public waters being in the people of the state as a class.

7. When the term “people of the state” is used to designate the beneficiaries of the trust in navigable waters, all the people who may choose to enjoy the same within the state are referred to, whether citizens of the state or persons who come within its territory for the purpose of enjoying such public rights.

8. A law treating some persons within the state differently than others, in respect to the enjoyment of public waters, violates the fourteenth amendment of the national constitution, guarantying to all persons within the jurisdiction of the state the equal protection of the laws.

9. The right to take ice from public waters within the state being a possession of all the people thereof, a law which exacts from any individual a sum of money as a consideration for the enjoyment of such waters, upon the theory that the state is the owner of the ice, violates the fourteenth amendment of the federal constitution, prohibiting any invasion of the right to liberty and property without due process of law, and violates section 13, art. 1, of the state constitution, prohibiting the taking of private property for public use without just compensation.

Error to municipal court of Racine; William Smieding, Jr., Judge.

Henry Rossmiller was convicted of shipping ice without the state, and brings error. Reversed.

Error to the municipal court of Racine county to review the judgment convicting the plaintiff in error for violating chapter 470, Laws 1901, which provides in brief as follows:

Section 1. The cutting of ice from any meandered lake of the state, for shipment out of the state, is prohibited except by those permitted to do so by a license issued by the secretary of state in the manner herein prescribed, on or before the first Monday of September immediately preceding the season for such cutting.

Sec. 2. Such license shall not be issued till the party applying therefor shall file with such secretary a bond in the sum of at least $10,000, with sufficient sureties, satisfactory to such secretary, conditioned that the applicant will comply with this act.

Sec. 3. Every such licensee shall, on or before the first Monday in November succeeding the year covered by his permit, file with such secretary a verified statement of the number of tons of ice cut and shipped out of the state thereunder during such year, and pay into the state treasury, on or before the first day of December thereafter, 10 cents for each such ton.

Sec. 4. Making a false statement under the foregoing section shall constitute the crime of perjury, and the guilty person shall be subject to punishment accordingly.

Sec. 5. Any sum due from any licensee under this act may be collected in an action in any circuit court in the name of the state, commenced at the instance of the attorney general or any citizen thereof.

Sec. 6. The income derived from the execution of this act shall form a part of the common school fund.

Sec. 7. Any person, whether acting as principal, agent or employé, who shall cut and ship ice out of the state in violation of this act, in addition to any other penalty incurred under the foregoing provisions, shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than $100 nor more than $1,000, or imprisonment for not less than 30 days nor more than one year, or both such fine and imprisonment, in the discretion of the court.

Sec. 8. Any licensee under this act failing to comply with section 2 hereof shall forfeit the sum of $5,000 for each offense, and the attorney general shall enforce such forfeiture by an action upon the licensee's bond.

Sec. 9. Ice formed upon the meandered lakes of the state is the property of the state. The design of this act is to prevent such cutting and shipping except upon condition of the state being compensated for the ice to the amount of 10 cents per ton.

After the passage of such act by the legislature, it received the approval of the governor upon the theory, solely, that the ice formed upon navigable lakes of the state is state property, which it may sell as a means of adding to the public revenues. The plaintiff in error cut and shipped ice out of the state without complying with the act. He was informed against therefor as being guilty of a misdemeanor under section 7 thereof. Upon the trial counsel for plaintiff in error insisted that he was not guilty of having committed any offense under the laws of this state, because the act attempting to make conduct such as he was charged with an offense is unconstitutional and void for several reasons specified. The court decided otherwise. Under such decision the evidence established the guilt of the accused. He was found guilty, and a judgment was rendered accordingly, requiring him to pay a fine of $100 and costs.

Kearney, Thompson & Myers, for plaintiff in error.

E. R. Hicks, Atty. Gen., for the State.

MARSHALL, J. (after stating the facts).

Is chapter 470, Laws 1901, valid? That is the only question involved in this case. An affirmative answer would require an affirmance of the judgment, and a negative answer a reversal thereof and a direction to the trial court to discharge the plaintiff in error.

There is no room for controversy, either as to the intent of the lawmaking power in the enactment here called in question, or but that both the legislative and executive idea, in placing the same on the statute book, was that it dealt with a subject of vast importance to the state. There are some striking features in the act indicating that with all the certainty of a mathematical demonstration. The severe penalties and forfeitures provided for, of themselves, clearly evidence the magnitude of the state interest which those concerned in the legislation supposed they were conserving. The act allows no one to cut ice on the meandered lakes of the state for shipment beyond its borders, regardless of the extent of his operations, without first giving a bond to the state in the sum of $10,000. A person who makes a false statement of the extent of his operations, to the secretary of state, whether willfully or otherwise, is made guilty of the crime of perjury and subjected to punishment therefor under the criminal laws of the state which were designed to deal with that serious offense. Any citizen of the state is armed with authority to set judicial machinery in motion in any of its circuit courts, to collect any indebtedness that may accrue to it for ice taken from its meandered lakes by any licensee. A person concerned in cutting any such ice and shipping the same out of the state, contrary to such act, regardless of his part in the operations, even though it be that of a mere employé, and regardless of whether he acts with or without knowledge that no license has been obtained to authorize such operations, and of the extent of his work, is made guilty of a misdemeanor in addition to all other offenses he may be guilty of under the act, and is made subject to punishment for such independent offense by a fine of not less than $100 nor more than $1,000; or imprisonment, presumably in the county jail, of not less than 30 days; or such imprisonment, presumably in the state prison, for the full term of one year, and at hard labor we must assume, and, as in other cases of imprisonment in the state prison, with a reasonable period of solitary confinement. If any person fails to make a report to the secretary of state of the extent of his operations, regardless of the cause of such failure, or to pay the purchase price for the ice taken by him, regardless of the amount in default, he is made liable upon his bond, filed with the secretary of state, in the sum of $5,000. Those drastic provisions cannot be made to harmonize at all with reason and common sense, except upon the theory that it was supposed a source of great wealth, for the state to draw from to meet its legitimate expenses, existed in the ice which annually forms upon its navigable waters; that such source had remained undiscovered and unenjoyed by the rightful owner so long, and the importance of laying hold thereof for its legitimate use was so great, and the right of the matter was so plain in fact, yet so misunderstood by those who had for years enjoyed the opportunity apparently open to all as of right, that it...