State v. Miller

• Decision Date: 09 November 1928
• Docket Number: 21401.
• Citation: 271 P. 826,149 Wash. 545
• Parties: STATE v. MILLER.
• Court: Washington Supreme Court

271 P. 826

149 Wash. 545

STATE v. MILLER.

No. 21401.

Supreme Court of Washington

November 9, 1928

Department 2.

Appeal from Superior Court, Kitsap County; H. G. Sutton, Judge.

S. V B. Miller was convicted of engaging in game farming without a license, and he appeals. Affirmed.

J. W Lindsay, of Port Angeles, for appellant.

J. W Bryan, of Bremerton, and John H. Dunbar and E. W. Anderson, both of Olympia, for the State.

ASKREN J.

The defendant was tried and convicted on a charge of engaging in game farming without securing a license as required by law. The action evidently being a test case, the defendant was fined $10 and costs, whereupon he entered his appeal.

The facts substantially are as follows: Appellant has been breeding foxes for a number of years, and, at the time of trial had in Kitsap county, 36 pairs of the animals; one-half being silver and the others blue foxes. The animals are raised for their pelts and for sale for breeding purposes. Silver and blue foxes are a rare species of the fox, and are very valuable. The particular foxes owned by appellant had been bred and raised in captivity for many years. Their ancestors were originally native of Alaska or Canada, and, although propagation of silver and blue foxes was begun in 1874, the industry never attained prominence until 1900. Appellant's foxes are registered with a national and also a Northwest fox breeders' association, and for at least 15 years they or their ancestors have been in captivity. They are commonly kept in a large inclosure covered with small pens for each pair of foxes, and are fed prepared food. By reason of this fact, some of them become more or less tame. These foxes have been assessed each year as personal property by the county assessor.

Turning now to the law necessary to be applied to these facts, we find that the Legislature of this state, by chapter 178, Laws Ex. Sess. 1925, § 106, provided for the licensing of game farms in the following language:

'Sec. 106. For the purpose of encouraging game farming and the domestication and propagation of wild animals, game fish and game birds, a game farmer's license, which shall authorize the licensee to engage in the business of purchasing, breeding and selling game animals, fur-bearing animals, and game fish, as defined by this act, game birds or non-game birds, shall be issued, subject to the provisions of this act by the supervisor of game and game fish to any responsible resident person duly applying therefor, such license to expire on March 31st following the date of its issuance. The fee for such license shall be twenty dollars ($20.00). After such license has been issued, it shall be valid as long as said licensee pays the supervisor of game and game fish, for the benefit of the game fund, an annual fee of ten dollars ($10.00), unless otherwise determined under the provisions of this act. * * *'

Section 2 of the same act provides:

'Sec. 2. For the purposes of this act wild animals shall be classified as follows: Game animals, fur-bearing animals and predatory animals.

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'The words 'fur-bearing animal,' wherever used in this act, shall be held to mean and include the beaver, otter, muskrat, mink, martin, fisher, sable, fox, skunk, and civet cat.'

It will thus be seen that the Legislature has by complete and explicit terms provided that any one engaged in the business of purchasing, breeding or selling foxes must have a license therefor. The provisions are too plain to require interpretation, and, since appellant's business comes strictly and wholly within the mandate of the statute, it is clear that, unless the act be declared void, there can be no escape for appellant from its requirements and penalties.

Appellant has presented a very interesting and instructive argument designed to establish the fact that these particular foxes by reason of their long captivity and that of their ancestors, have become no longer wild, but domestic animals. Grounded upon this theory, he builds the further argument that the statute discriminates against fox farmers in favor of all persons raising other domestic animals, and is therefore unconstitutional. In determining the question of the constitutionality of this statute, we cannot consider whether within the classification made by the Legislature there may be certain animals in the class named that have become domestic and are no longer wild, for the determination of the classification belongs to the lawmaking body. Matters of expediency are purely its concern, not that of the courts. When it decides that a class of animals requires regulation, it may then decide, if it so wishes, whether the proper regulation of the class may require regulation of some that might well be excepted from the class if it so desired. The Legislature saw fit to class all foxes as wild animals. Unless we can say that we know as an established, uncontroverted fact that foxes are domestic animals, it is plain that the legislative determination of that fact must stand. While it may be that many may believe that foxes long in captivity become tame and domesticated, yet we cannot say such fact is without dispute or that the Legislature arbitrarily decided the matter. An entirely different question would be presented were the Legislature to classify foxes as domestic animals, for, since there can be no dispute that ordinary foxes are by nature wild animals, courts will take judicial notice of that fact. It is a well-settled rule that in determining the constitutionality of an act the courts will not go beyond those facts of which it can...