State v. Nelson

• Decision Date: 06 December 1927
• Docket Number: 20831.
• Citation: 146 Wash. 17,261 P. 796
• Parties: STATE v. NELSON.
• Court: Washington Supreme Court

261 P. 796

146 Wash. 17

STATE v. NELSON.

No. 20831.

Supreme Court of Washington

December 6, 1927

Department 2.

Appeal from Superior Court, Spokane County; Leavy, Judge.

Carl F Nelson was convicted of a violation of the game code, and he appeals. Affirmed.

Neil C Bardsley, of Spokane, for appellant.

Chas W. Greenough and Fred J. Schaaf, both of Spokane, for the State.

FULLERTON J.

Carl F. Nelson was convicted of a violation of the game code of the state (Laws Extra Sess. 1925, c. 178, as amended by Laws 1927, c. 258), and appeals from the judgment and sentence pronounced upon him.

The facts of the case are stipulated. It appears that the appellant is the agent and servant of a corporation engaged, as a part of its business, in buying and selling, at wholesale and retail, trout and other varieties of food fish. The corporation holds a license, issued by public authority, 'to handle or deal in trout or other food fish secured from private hatcheries.' In February, 1927, the corporation purchased from a private hatchery, located in the state of Montana, a box of trout, caused the same to be brought into this state to its place of business, and there offered the fish for sale to its patrons and customers in the usual course of trade. It did not, prior to offering the fish for sale, report in writing to the supervisor of game and game fish, or to the county game commission of the county in which they were offered for sale, the receipt of the fish, so that they might be tagged or otherwise marked for identification by some one of the officers named.

The appellant was found in charge of the business of the corporation by a deputy game warden, and was taken by that officer before a justice of the peace, where he was charged with a violation of the statute before referred to, and convicted and fined. From the judgment of conviction he appealed to the superior court, where the prosecting attorney filed an information against him. It was a conviction upon the information that gives rise to the present appeal.

The appellant attacks the act under which the appellant was convicted, contending that it is in violation of both the state and the federal Constitutions. It is argued that it violates the state Constitution, in that it contains more than one subject; authorizes the taking of property without due process of law; grants special privileges; delegates judicial, legislative, and administrative powers to inferior boards and commissions; provides for unreasonable searches and seizures; and that it violates the federal Constitution, in that it authorizes the taking of property without due process of law, and in that it interferes with interstate commerce. While these objections appear somewhat formidable upon their face, we do not feel that they require extended discussion.

Concerning the first objection, it is to be noticed that the act contains no unusual features. It relates wholly to game animals, game birds, and game fishes, and provides for their protection and propagation. It is but an attempt on the part of the Legislature to include in one general enactment all of the statutory law relating to a cognate subject. That the Legislature may do this without violating the constitutional provision forbidding the inclusion in one act of more than one subject is generally held. Any rule that would forbid it would not only be contrary to the spirit of the constitutional provision, but would seriously embarrass the Legislature.

The contention that the act permits the taking of property without due process of law is founded on the fact that it provides for the confiscation under certain circumstances of game animals, game birds, and game fish found in the possession of persons who hold them without complying with the regulations provided by the law. But the regulation in this respect is but a means to an end. It is a regulation deemed necessary by the Legislature for the protection of game. The regulation is within the constitutional powers of the Legislature. The game within the state belongs to the people of the state, and the Legislature may prohibit absolutely its destruction, possession, or taking, if it so chooses. Having this power, it may regulate its destruction, possession, or taking in any manner short of absolute prohibition. The appellant, however, seems to contend further that, while the Legislature may have this power with respect to the game of the state, it does not have such power with respect to game lawfully acquired without the state and brought within the state. But, if this be his meaning, the contention is unsound. For the protection of its own property, the state may regulate the possession and disposition of property of like kind when brought within the state from another jurisdiction. If there be a limitation at all upon its powers in this respect, it is only that the regulation be reasonable, and we find nothing unreasonable in the regulation it has adopted.

The claim that the act grants special privileges is founded on the fact that it permits the taking and destruction of game for scientific and propagation purposes at a season of the year in which its taking and destruction are forbidden for the purposes of sport or food. But we see nothing incongruous in this. The one tends to the protection and increase of game, while the other has the directly opposing effect. Surely the Legislature can make a distinction in this respect without violating any constitutional provision.

The question whether the act confers judicial and legislative powers on boards and commissions was met and determined in effect by this court, contrary to the appellant's contention, in Vail v. Seaborg, 120 Wash. 126, 207 P. 15, where the principle involved was argued at length, and the supporting cases cited and reviewed. Since we adhere to the conclusion there reached, it controls the question here presented.

The contention that the act provides for unreasonable searches and seizures is founded on the provisions of section 21 of the act. That section purports to empower the supervisor of game and fish, game wardens, and police officers generally to search without warrant certain designated places which the officer may have reason to believe contain evidence of a violation of the act. It may be that some of the powers here attempted to be conferred are in violation of the search and seizure clause of the Constitution, but the immediate question is not before us, since the present cause does not involve the provisions of the particular section. The larger question is, do the provisions of this section, conceding that they are violative of the Constitution, render the whole act unconstitutional. It is not our opinion that they do. They relate solely to means for the enforcement of the act. The searches provided for are not in themselves objectionable, and are only so in so far as they are authorized to be made 'without warrant.' The act is complete and workable without this included power, and it is not to be supposed that the Legislature intended to make the entire act hinge upon it. 'The general proposition must be conceded, that in a statute which contains invalid or unconstitutional provisions, that which is unaffected by these provisions, or which can stand without them, must remain, If the valid and invalid are capable of separation, only the latter are to be disregarded.' Pullman State Bank v. Manring, 18 Wash. 250, 51 P. 464.

The act (Laws 1925, c. 178, § 95) provides that it shall be lawful at all times for any person, firm, or corporation to have in its possession game fish lawfully taken outside of the boundaries of the state, for the purpose of disposing of the fish in the usual course of trade, 'provided, always that the same have been, within three days after their receipt, reported in writing to the supervisor of game and game fish or the game commission of the county wherein the same is to be kept or used as herein specified. The supervisor of game and game fish or the county game commission shall cause the same to be tagged or marked for identification any shall be...