State v. Lipinske

• Decision Date: 29 June 1933
• Citation: 212 Wis. 421,249 N.W. 289
• Parties: STATE v. LIPINSKE.
• Court: Wisconsin Supreme Court

212 Wis. 421

249 N.W. 289

STATE

v.LIPINSKE.^a1

Supreme Court of Wisconsin.

June 29, 1933.

Questions certified from Circuit Court, Trempealeau County; R. S. Cowie, Circuit Judge.

Mike N. Lipinske was convicted for unlawfully taking, catching, and killing fish by the use of a seine, and the circuit court certified questions to the Supreme Court.--[By Editorial Staff.]

One question answered, and other question not answered.James E. Finnegan, Atty. Gen., and J. E. Messerschmidt, Asst. Atty. Gen., for the State.

M. L. Fugina, of Fountain City, and Morris J. Owen, of Winona, Minn., for defendant.

ROSENBERRY, Chief Justice.

Certain incidental questions which will be referred to in the disposition of this matter were dealt with in Merwin v. Houghton, 146 Wis. 398, 131 N. W. 838, and Delta Fish & Fur Farms, Inc., v. Pierce, 203 Wis. 519, 234 N. W. 881, to which reference is made for the matters there dealt with and for a fuller statement of the facts forming the backgroundof this controversy. Following the decision in Delta Fish & Fur Farms, Inc., v. Pierce, the Legislature enacted chapter 484 of the Laws of 1931, which created a wild life, fish, and spawning refuge, embracing certain territory therein more specifically described; about one-half, or three thousand acres, belonged to the Delta Fish & Fur Farms, Inc., hereinafter referred to as Farms, Inc. Chapter 484 further provides: “All provisions of subsection (4) of section 29.57 shall be applicable to such refuge and in addition no person shall take or catch any fish or spawn or fish for fish within the boundaries of such refuge; provided, however, that any person licensed to operate a muskrat farm in this area shall not be denied any of his rights pertaining to the operating of such farm and the catching and killing of muskrats.”

The defendant was brought to trial in the circuit court upon an information charging him with a violation of chapter 484 (section 29.572) in that he did unlawfully take, catch, and kill fish and by the use of a seine, fish for fish in and upon the lands described in said act. To this information the defendant pleaded not guilty. The facts were stipulated, and upon the facts so stipulated the court found the defendant guilty, but being of the opinion that important questions of law were raised under the provisions of section 358.08, reported the case with the following questions:

“Question number one: Is chapter 484, Laws of 1931, constitutional?”

“Question number two: Were the acts committed by the defendant a violation of said act?”

By the stipulation the defendant admitted that on the day alleged in the information he did take, catch, and kill fish, and by the use of a seine, fish for fish upon the land described in said act as charged in the information. By the stipulation it was further admitted that the defendant was the president and employee of Farms, Inc., and that as such he performed the act set forth in the information; that the defendant in taking dog fish and carp was acting for the company and in carrying on the business of the company; that in the conduct of a fish farm by the company, it was necessary from time to time to take and market fish in order to provide an income to the company from its operations, to prevent overstocking of the fish-ponds maintained by the company and to prevent fish dying or becoming diseased because of such overstocking; that the company has no license or permit from the state to propagate fish or animals other than muskrats, or to conduct a fish or fur farm except its license to conduct a muskrat farm.

The stipulation further recites the fact with reference to the acquirement of title to the lands owned by Farms, Inc.; that the lands owned by Farms, Inc., are now wholly disconnected from outside waters; that the waters lying within the boundaries of the lands owned by Farms, Inc., have not been stocked with fish by the state of Wisconsin or any of its agencies; that the fish and fur operations of the company are carried on on the lower two-thirds portion of its land, which portion is now on the average, by reason of the company dam and wells, kept from a third to a half submerged, and...