State v. Lewis

• Decision Date: 19 April 1893
• Docket Number: 16,191
• Parties: The State v. Lewis
• Court: Indiana Supreme Court

33 N.E. 1024

134 Ind. 250

The State v. Lewis

No. 16,191

Supreme Court of Indiana

April 19, 1893

From the Lake Circuit Court.

Judgment reversed, for further proceedings not inconsistent with this opinion.

W. C McMahan, Prosecuting Attorney, A. G. Smith, Attorney-General A. C. Harris, L. A. Cox, and Fox and Robbins, for appellant.

T. J Wood, for appellee.

OPINION

Olds, J.

This was a prosecution by affidavit and information filed against the appellee in the Lake Circuit Court, charging the appellee with a violation of the statute making it a misdemeanor for a person to have in his possession a gill net or seine in certain cases, and prescribing the penalty therefor.

Section 2 of an act entitled "An act to amend section 209 of an act entitled 'An act concerning public offenses and their punishment,' approved April 14th, 1881, the same being section 2117 of the Revised Statutes of 1881, and declaring an emergency, approved March 5th, 1889," provides that: "Section 2 [p. 103]. It is hereby declared a misdemeanor for any person to have in his possession any gill net or seine (except a minnow net, as prescribed in section 1 of this act, and except for use in Lake Michigan), and any one convicted of having such gill net or seine in his possession shall be fined not less than fifty dollars nor more than two hundred dollars for each offense, to which may be added imprisonment in the county jail for any determinate period, and every day's possession of such gill net or seine shall constitute a separate and distinct offense under this act: Provided, That the provision of this section shall not apply to persons who may have such nets or seines wholly for use in the St. Joseph river or in private ponds."

The charge in the affidavit and information in this case is, "That David Lewis, on the 8th day of April, A. D. 1891, at and in the county of Lake, and State of Indiana, did then and there unlawfully have in his possession a certain gill net, then and there being more than fifteen feet in length, and not then and there used by said David Lewis for catching minnows for bait, and not then and there being for use in Lake Michigan, and the said David Lewis not then and there having said gill net wholly for use in the St. Joseph river, or in private ponds, contrary to the form of the statute," etc.

The appellee moved to quash the affidavit, which motion was overruled. There was a trial before the court, and the appellee was found guilty, and his punishment fixed at a fine of $ 60.

Appellee moved in arrest of judgment, the court sustained the motion, the State excepted to the ruling, and prosecutes this appeal, assigning the ruling on the motion in arrest as error.

The motion in arrest was sustained on the grounds that the statute on which the prosecution is based, which we have quoted, is unconstitutional and void. As to whether or not the court erred in its ruling on the motion in arrest depends upon the validity or invalidity of the statute.

The sole question discussed relates to the constitutionality of the statute, no technical objection being urged to the formal allegations of the affidavit or information, and we discover none.

If the statute can be upheld, it must be on the theory that it is a proper police regulation. Many objections are urged against its validity, on behalf of the appellee, and we are afforded an able discussion of the question by the opinion of the judge who tried the cause, in support of his ruling, which is filed with, and made a part of, the brief of counsel for the appellee, but we are not inclined to agree with the views of the trial court as to the invalidity of the law.

One of the principal objections urged to the law is, that it deprives the citizens of a class or species of property, or the right to own and possess the same, which in itself is harmless, and in which of itself there is no inherent evil.

It is contended, that a seine is a legitimate specie of property, harmless in itself; that it may be manufactured from the same spool of thread that is used in stitching the garments we wear, and that it has lawful uses; that this law wantonly deprives one of the lawful uses and possession of such property; that it makes it unlawful to have it in his possession; that it prohibits the manufacture of seines for lawful purposes within the State, or for use beyond the limits of the State; that it even prohibits the transportation of them across the State by a common carrier, for it makes it unlawful to have one in possession.

The property described in this statute is adapted to a particular use. "Gill net" is defined by Webster as "a flat net so suspended in the water that its meshes allow the heads of fish to pass, but catch in the gills when they seek to extricate themselves." Webster also defines a "seine" as "a large net, one edge of which is provided with sinkers, and the other with floats. It hangs vertically in the water, and when its ends are brought together or drawn ashore incloses the fish." The Century dictionary defines "gill net" as "a net which catches fish by the gills," specifically describing it, while the same dictionary defines a seine as "a fishing net," particularly describing it and the manner in which it is used.

This statute prohibits the use of gill nets and seines, except certain kinds or in certain waters. They are not a species of property adapted to any other use. The fact that they are made of material harmless in itself and valuable for other uses, does not change the right of the State to prohibit the use of or the possession of such material when woven into nets used solely for the purpose of catching fish at times and in waters prohibited by statute. The gill net and the seine are made and used exclusively for catching fish, trapping them, and catching them in large quantities. This method of catching fish the State has a right to prohibit, and if it has the right to so prohibit the catching, why has it not the right, also, to prohibit persons having an article of property in their possession used solely for such unlawful purposes?

In Gentile v. State, 29 Ind. 409, it is held that the Legislature of the State has the power under the constitution to pass laws for the preservation of fish, by limiting the time and mode of taking them. In that case it is said: "Fish are ferae naturae, and as far as any right of property in them can exist, it is in the public or is common to all. No individual property in them exists until they are taken and reduced to actual possession. 2 Black. Com. 392. They are natives of the water; it is there they generate and live and grow, and no individual property in them can attach whilst they remain there free. But, as they are valuable for food, the public has an interest in their protection and growth." We think this states the true rule, and if, as here said, the public has an interest in their protection and growth, and the Legislature has the right to prohibit their being taken from the water during certain seasons of the year and by certain means, then the Legislature has exclusive control over the matter, and may prohibit their destruction, and prohibit their being taken from the waters in any other manner than that prescribed by statu...