State v. Herwig
| Decision Date | 02 October 1962 |
| Parties | STATE of Wisconsin, Appellant, v. Parker HERWIG, Respondent. |
| Court | Wisconsin Supreme Court |
John W. Reynolds, Atty. Gen., and Albert Harriman, Asst. Atty. Gen., Madison, David H. Bennett, Dist. Atty., Portage, for appellant.
T. J. Sanderson, Portage, for respondent.
The appeal is within the provisions of sec. 958.12(1)(d), Stats., allowing the state to appeal questions of law arising upon the trial of a criminal case which the permission of the trial court and providing a judgment acquitting the defendant of the charge is deemed adverse to the state. This is a test case on a stipulation of facts, and the judgment of conviction or acquittal depended solely upon the constitutionality of the rule. *
Rule 11.06(6)(a) 1 of the conservation commission which was promulgated pursuant to sec. 29.174, Stats., 2 became effective September 1, 1958, and prohibited hunting in an area, now known as the Arlington Closed Area, consisting of about 2800 acres of privately owned land in prairie type terrain attractive to waterfowl in the town of Leeds in Columbia county. Within the boundaries of the area is located a small public lake of some 60 acres known as the Arlington Goose Pond, which is bisected by a public road. Substantially all of the lake east of this road is surrounded by farm land owned by the defendant and his wife in joint tenancy. After a public hearing and over the objection of the defendant and others, the area was closed to all hunting during the open season on waterfowl in the state. The conservation commission has neither purchased nor leased any of the land within the area. As a result of closing the area, the defendant has been damaged to the extent of $500 annually by waterfowl foraging in his corn, alfalfa, and rye fields. On October 7th, 1960, during the open season on waterfowl and while in possession of a hunting license and a duck stamp, the defendant shot a teal duck on his land.
No contention is made the shooting was justified on the ground the defendant was protecting his property. A landowner has a qualified privilege to shoot wild game to protect his property when the shooting is reasonable necessary under the then existing circumstances. State v. Rathbone (1940), 110 Mont. 225, 100 P.2d 86; State v. Burk (1921), 114 Wash. 370, 195 P. 16, 21 A.L.R. 193. However, the duck shot was not damaging the defendant's property at the time and the defendant had no permit from the conservation commission to destroy wild animals causing damage, as required by sec. 59.596, Stats.
The sole issue is whether the rule, which has the force and effect of a statute, is unconstitutional as to the defendant so that he cannot be convicted of its violation. Several constitutional grounds are urged but the only one which has merit is whether as to the defendant the rule was an unreasonable exercise of the police power of the state to the extent that its exercise amounted to an unconstitutional taking of the defendant's property.
The wild animals, including migratory birds, within the state, so far as it can be said such animals and birds are the subject of ownership, are owned by the state in its sovereign capacity in trust for the benefit of the people of the state, and hunting regulations in the interest of conservation may be enacted in the exercise of the police power. These principles contended for by the state are so well established as to leave no room for doubt. State ex rel. Meyer v. Keeler (1931), 205 Wis. 175, 185-186, 236 N.W. 561; State v. Lipinske (1933), 212 Wis. 421, 249 N.W. 289; Krenz v. Nichols (1928), 197 Wis. 394, 222 N.W. 300, 62 A.L.R. 466. It is equally well settled that hunting is a privilege as against the state (commonly called hunting rights in reference to land), which the state can grant, or deny, or regulate,--a privilege of reducing wild life, which the hunter did not own, to possession and to ownership by a means and at a time and place which are lawful. State ex rel. Meyer v. Keeler, supra; Geer v. Connecticut (1895), 161 U.S. 519, 533, 16 S.Ct. 600, 40 L.Ed. 793; 24 Am.Jur., Game, p. 381, sec. 10.
Open and closed seasons and their variations are extensively used in the promotion of conservation policies for the good of the general public; likewise, the device of the closed area, which generally is more permanent in time and may apply to all hunting or to certain species of animals or birds, is used. The narrow question on this appeal is whether the closed area device here involved causes such damage to the defendant's property as must be considered a taking of his property in violation of Art. I, Sec. 13, Wisconsin Constitution. 3
The state contends that this damage should be considered as merely incidental to a reasonable exercise of the state's police power, and therefore not a 'taking' in the constitutional sense. It is the state's position that the reasonableness of the exercise of the police power is solely determined by the ultimate purpose calling for the exercise of power, together with the efficiency or effectiveness of the means used in securing that purpose; any degree of damage resulting from the exercise of such power to a private landowner must be suffered in legal silence. This argument carried to its ultimate conclusion would make unnecessary the power of eminent domain. The damage done by the exercise of the police power must be incidental, which is normally the case. However, the nature and extent of the damage flowing from the act of the government may, in a given case, render the act a taking of private property. There is a limit to the extent to which the state may restrict the use of property or damage property under the police power. What amounts to deprivation of property without due process of law is often difficult to determine, and the determination largely depends upon the nature of the particular case. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322, 28 A.L.R. 1321, 11 Am.Jur., Constitutional Law, p. 1005, sec. 266, and 12 Am.Jur., Constitutional Law, p. 342, sec. 651. See also Piper v. Ekern (1923), 180 Wis. 586, 194 N.W. 159, 34 A.L.R. 32.
If conservation be considered the ultimate purpose of rule 11.06(6)(a), there is no doubt the closed area was an effective means. It has resulted in a significant increase in the concentration of waterfowl in the Arlington Goose Pond. The approximate peak maximum waterfowl concentration in this lake in 1955 was 401, 1956 529, and in 1957 460. After the rule was promulgated, the peak numbers of waterfowl present on certain days during the migratory season was:
1958 3,200
1959 7,000
1960 4,735
These figures include ducks, Canadian, blue and snow geese. In addition, there are other wildfowl. The importance of the continued existence of the closed area in the state's conservation program and the public purpose in establishing the closed area is best set forth in the stipulation of facts as follows:
'G. That the continued existence of the Arlington Closed Area is important to the State's conservation program, because it has a lake located in prairie type area which is a natural attraction to waterfowl. The purpose of this closed area is to attract migratory waterfowl to stop and tarry there in their migratory journey south. Such birds soon learn to use such an area where they are not hunted. They will stop for a while and rest and feed there, and fly in and out of the area for a while before resuming their journey south. The purpose of the closed area device is not to prevent hunting, but provide better hunting opportunities. This is accomplished by attracting the birds away from their high migratory flight patterns so...
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