State Ex Rel. Sofeico v. Heffernan.

• Decision Date: 22 December 1936
• Docket Number: No. 4159.,4159.
• Parties: STATE ex rel. SOFEICOv.HEFFERNAN.
• Court: New Mexico Supreme Court

41 N.M. 219

67 P.2d 240

STATE ex rel. SOFEICO

v.HEFFERNAN.

No. 4159.

Supreme Court of New Mexico.

Dec. 22, 1936.Rehearing Denied April 23, 1937.

Appeal from District Court, Sierra County; Harry P. Owen, Judge.

Habeas corpus proceeding by the State, on the relation of Lester Sofeico, against Claude Heffernan. From an order discharging the relator from custody, the defendant appeals.

Affirmed.

Ordinances may vest discretion in public officials without prescribing specific rule of action, where it is difficult or impracticable to lay down definite comprehensive rule, or discretion relates to administration of police regulation and is necessary to protect public morals, health, safety, and general welfare Const. art. 3, § 1.

Frank H. Patton, Atty. Gen., and Edward P. Chase, Asst. Atty. Gen., for appellant.

Edward D. Tittmann, of Hillsboro, for appellee.

ZINN, Justice.

This is an appeal prosecuted to this court from an order of the district court discharging appellee from custody on his petition for a writ of habeas corpus. Appellee was arrested on April 13, 1935, on a charge of having in his possession part of a game animal, to wit, the skin of a bear, contrary to the provisions of Laws 1931, c. 117, § 8.

Appellee had theretofore been arrested on March 31, 1935, charged with killing a bear out of season. He was sentenced to a fine and imprisonment, from which, however, on the 5th day of April, 1935, appellee was discharged on a writ of habeas corpus. No appeal was prosecuted from such discharge. The writ was allowed on the theory that there is no such crime in the state of New Mexico as described in the complaint, to wit: “Killing a bear out of season.” The bearskin in the instant case is of the said bear.

Appellee contends below and here that the crime now charged is a part of the same crime for which he was originally sentenced to imprisonment and from which imprisonment he was released by the lower court on April 5, 1935, and that such finding precludes any new prosecution for any alleged crime, to prove which it would be necessary to prove the same facts as would have had to be proved in the former charge. In other words, if it is not a crime to kill a bear in New Mexico, the possession of the hide of such bear cannot be a crime, and in any event, having been discharged and no appeal prosecuted on the charge of killing a bear, he cannot be again prosecuted for possessing the skin of the bear.

The prosecution of the appellee in both instances in the justice court was based on certain rules and regulations made by the State Game Commission. These rules were promulgated by the Game Commission pursuant to Laws 1931, c. 117.

Two very interesting and clear-cut issues of law are presented to us for disposition. Disposing of the first question in favor of appellee eliminates any necessity of treating the second question.

The first question presented is simply this:

Appellee questions the constitutionality and validity of Laws 1931, c. 117, on the theory that it delegates legislative powers to the State Game Commission. The Attorney General contends that the statute merely confers on the Game Commission power to determine certain facts and then act upon these facts in accordance with the legislative direction.

In considering this proposition of law, it becomes necessary to set forth herein the pertinent parts of the statute under consideration.

Chapter 117 of the Session Laws of 1931, under which this prosecution was had, is entitled, in part: “An Act Relating to Game and Fish: Authorizing the Making and Promulgation of Regulations by the State Game Commission, and Providing Penalties for the Violation of Such Regulations.”

Sections 1, 2, and 3 read as follows:

“Section 1. It is the purpose of this act and the policy of the State of New Mexico to provide an adequate and flexible system for the protection of the game and fish of New Mexico and for their use and development for public recreation and food supply, and to provide for their propagation, planting, protection, regulation and conservation to the extent necessary to provide and maintain an adequate supply of game and fish within the State of New Mexico.

“Sec. 2. The State Game Commission is hereby authorized and directed to make such rules and regulations and establish such service as it may deem necessary to carry out all the provisions and purposes of this act, and all other acts relating to game and fish, and in making such rules and regulations and in providing when, to what extent, if at all, and by what means game animals, birds and fish may be hunted, taken, captured, killed, possessed, sold, purchased and shipped, the State Game Commission shall give due regard to the zones of temperatures, and to the distribution, abundance, economic value and breeding habits of such game animals, birds and fish. ***

“Sec. 3. The State Game Commission, in addition to the powers now vested in it, and not as a limitation of such powers, is expressly authorized and empowered by regulation adopted and promulgated in the manner hereinafter provided, to: (a) Define game birds, game animals and game fish; (b) Establish open and closed seasons for the killing or taking of all kinds of game animals, game birds and game fish, and to change such open seasons from year to year, and to fix different seasons for different parts of the state; (c) Establish bag limits covering all kinds of game animals, game birds and game fish, and the numbers thereof which may be killed or taken by any one person during any one day or during any one open season; (d) Authorize or prohibit the killing or taking of any game animals, game birds or game fish of any kind or sex; (e) Prescribe the manner, methods, and devices which may be used in hunting, taking, or killing game animals, game birds, and game fish.”

Section 4 reads as follows:

“Any regulation of the State Game Commission reduced to writing, adopted by an affirmative vote of a majority of the members of the State Game Commission, signed by the President and attested by the Secretary of the State Game Commission, filed in the office of the State Game Warden, and published as provided by Section 11, Chapter 35, Session Laws of 1921 (Section 57-111, Compilation of 1929) shall be deemed to have been duly adopted and promulgated, and shall become effective fifteen (15) days after such publication.

“A copy of any such regulation certified by the State Game Warden to be a true copy and to have been adopted, signed, filed and published as aforesaid, shall be prima facie evidence in any court in this State of the adoption, publication and promulgation of such regulation.

“The State Game Warden shall furnish a true copy of any such regulation to any person, firm or corporation, on request.”

[1] The record before us does not disclose whether the regulations under which the appellee was prosecuted were properly promulgated. We assume such regulations were properly promulgated and that a certified copy as provided by said section 4 was properly introduced at the prosecution of appellee. Such assumption is based on the fact that appellee does not question on that score the validity of the conviction in the justice of the peace court.

Section 7 reads in part as follows: “Any person who shall violate or fail to comply with regulations adopted and promulgated by the State Game Commission, pursuant to the provisions of this Act, or any other act, or who shall violate any of the provisions of any act relating to game or fish, now or hereafter in force, shall, upon conviction, be fined not less than twenty-five ($25.00) dollars nor more than three hundred ($300.00) dollars, or imprisoned not less than one day nor more than ninety days, or both such fine and imprisonment, in the discretion of any court.”

Under authority conferred upon the State Game Commission by said statute, bear are defined as big game animals by regulation No. 57, section 2, which regulation was published according to law March 15, 1934. This statement is also from the brief of the Attorney General and not controverted by appellee. We accept its truth for the purpose of this opinion.

Seasons for game are subject to change, and therefore are contained in a digest published each year by the Department of Game and Fish. The open season for bear as established by the State Game Commission, under authority conferred upon it by said Laws 1931, c. 117, § 3, is from October 1st to December 10th of each year. A copy of the digest of game and fish laws is found in the brief of the Attorney General, and its accuracy is not questioned by appellee. We accept it as such. It reads as follows:

“Under authority conferred upon the State Game Commission by Chapter No. 117 of the 1931 Session Laws of the Tenth Legislature of the State of New Mexico, the following open seasons and bag limits for game animals, game birds, and game fish are hereby established, effective April 1, 1934, and this regulation shall remain in effect until changed by order of the State Game Commission.

“Section 1. The Seasons and Bag Limits For Big Game Shall Be:

“Bear: One per season, October 1 to December 10, inclusive.

“Dogs shall not be used in hunting bear during the deer season, and traps shall not be permitted at any time.

“Deer: (Mule deer, Virginia White Tail and Arizona White Tail). October 25 to November 15, inclusive.

“Turkeys and Squirrels: October 25 to November 15, inclusive.

“Bag limit, one buck deer with horns six inches or more in length, two turkeys and five squirrels.

“Elk: There shall be a special permit season on elk on the Pecos River watershed, north of a line drawn east and west through the town of Pecos and not to exceed 100 special permits at $10 each shall be issued. Applications shall be received up to September 30, and permittees shall then be determined by a public drawing if there are more than 100 applicants. The season shall be October 25 to November 15, inclusive, with a...