State v. Nergaard

• Decision Date: 14 March 1905
• Citation: 124 Wis. 414,102 N.W. 899
• Parties: STATE v. NERGAARD.
• Court: Wisconsin Supreme Court

124 Wis. 414

102 N.W. 899

STATE

v.NERGAARD.

Supreme Court of Wisconsin.

March 14, 1905.

Appeal from Circuit Court, Kenosha County; E. B. Belden, Judge.

Action by the state against Peter S. Nergaard. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action to recover a forfeiture for an alleged violation of chapter 358, p. 507, Laws 1901, as amended by chapter 437, p. 712, Laws 1903, known as the “Fish and Game Law.” The defendant was convicted in justice court, and appealed to the circuit court, where the action was tried before a jury. The state's evidence tended to show that on January 18, 1904, the defendant, who was a wholesale and retail dealer in fish at Kenosha, received from one Budzisz, a fish dealer in Oshkosh, seven barrels of pike, weighing from 185 pounds to 290 pounds per barrel; that on the afternoon of the same day six barrels of the shipment were taken from the defendant's store, by an expressman employed by him, to a barn in the city of Kenosha; that at about 5 o'clock a. m. upon the following morning these six barrels were taken from the barn in a sleigh accompanied by one Christensen, an expressman, and C. Nergaard, the defendant's brother, and carried in the sleigh several miles southwestward and across the state line to the village of Russell, in the state of Illinois, where they were shipped by rail to a fish dealer in Chicago; that said Nergaard was an employé in the defendant's store in Kenosha. There was no direct evidence as to where the fish were caught, but there was evidence by deputy game wardens familiar with the conditions on Lake Winnebago to the effect that in January large quantities of pike are caught in Lake Winnebago, and that they know of none being shipped in from any other points. The defendant's testimony tended to show that the six barrels of fish which were taken to Russell had been sold by him to his brother, and that he had nothing to do with them after such sale; and, further, that the fish so shipped were not the identical fish received from Oshkosh. The jury returned a verdict for the state, and judgment was rendered thereon for a forfeiture of $50 and costs, from which the defendant appeals.Cooper, Simmons, Nelson & Walker, for appellant.

A. E. Buckmaster, L. M. Sturdevant, Atty. Gen., and W. D. Corrigan, Asst. Atty. Gen., for the State.

WINSLOW, J. (after stating the facts).

The portion of the fish and game laws of the state which is claimed to have been violated by the appellant is section 22 of chapter 358, p. 518, of the Laws 1901, as amended by section 20 of chapter 437, p. 720, of the Laws 1903, which provides in substance that it shall be unlawful to transport or offer for transportation to any point within or without the state any fish taken from the inland waters of the state, except: (1) One package (not including trout) containing not more than 20 pounds (or in lieu thereof two fish of any weight), provided not more than one shipment a week is made by the same person; (2) any package of fish from inland waters (except trout) containing more than 20 pounds may be transported to any point within this state if accompanied by the shipper and marked as provided by law, provided that pike from outlying waters may be transported from an outlying water point to points within the state without being accompanied by the shipper, except during the closed season; (3) the section does not apply to certain varieties of fish which are specifically named, and does not include pike; (4) shipments of trout of any variety taken from inland waters, not exceeding 20 pounds in weight, may be made to points within or without the state, when accompanied by the shipper, not more than one shipment per week being made by the same person. Any violation of the section is punished by a forfeiture of not less than $25 nor more than $100, and by seizure and confiscation of the shipment.

The charge made in the present case is that the defendant violated the law by transporting from Kenosha to a point outside of the state more than two packages of fish, each containing more than 20 pounds, taken from the inland waters of the state, to wit, Lake Winnebago. That the packages claimed were in fact transported from Kenosha to a point outside of the state at the time charged stands uncontradicted in the case, and the only questions of fact in serious dispute upon the trial were (1) whether the fish in question were pike taken from the inland waters of the state, and (2) whether the defendant by his agents transported them from Kenosha to Russell. Before proceeding to the consideration of the detail errors which the appellant assigns upon the trial of these questions of fact, however, it seems proper to consider the main question raised in the case, namely, the question of the constitutionality of the law.

The appellant claims that this section violates several provisions of both the state and federal Constitutions, namely: Section 1 of article 1 of the Constitution of the state, which declares the inherent right of all men to life, liberty, and the pursuit of happiness; also section 13 of the same article, which provides that the property of no person shall be taken for public use without compensation; also the fifth amendment to the federal Constitution, which provides that no person shall be deprived of life, liberty, or property without due process of law, and that private property shall not be taken for public use without just compensation; also the fourteenth amendment to the same Constitution, which prohibits a state from abridging the privileges or immunities of citizens of the United States, and from depriving any person of life, liberty, or property without due process of law, and from denying to any person the equal protection of the laws. As these several claims all are based upon one contention, namely, that fish, when lawfully taken, become private property of the captor, with the absolute right of disposition, they may all be considered together. As above indicated, the appellant's claim is that when fish have been lawfully taken they become private property, and that any interference with the use, sale, or disposition thereof is an unconstitutional infringement upon property rights. The appellant's counsel, with much ability, contends that this claim is justified by the decision of this court in the case of Rossmiller v. State, 114 Wis. 169, 89 N. W. 839; and he also cites in support thereof State v. Saunders, 19 Kan. 127, 27 Am. Rep. 98, and Territory v. Evans, 2 Idaho, 658, 23 Pac. 115. As to the two cases last named, they both proceeded upon the idea that a statutory prohibition of the right to ship out of the state game lawfully taken within the state was a violation of the interstate commerce clause of the federal Constitution, and, as these cases were distinctly overruled upon this point by the United States Supreme Court (which is necessarily the final tribunal on this subject) in the case of Geer v. Connecticut, 161 U. S. 519, 16 Sup. Ct. 600, 40 L. Ed. 793, we do not feel called upon to consider them seriously. In the Rossmiller Case it was held by this court that ice formed upon the public waters of the state was not state property in a proprietary sense, and that a law which attempted to declare it the absolute property of the state, and authorize the state to sell it for revenue, and interdict its transportation out of the state unless purchased of this state, violated both the fourteenth amendment of the federal Constitution and section 13 of article 1 of the state Constitution. There was here involved no question of police regulation, only the question of the right of the state to traffic in ice formed on the public waters of the state, as though it had an absolute proprietary ownership thereof; and while the right of the people to take and appropriate to themselves, as part of their common heritage, such ice, is fully recognized and classed with the right of fishing and fowling, the paramount right of the state to enact reasonable police regulations to preserve for its people the continued existence of a valuable food supply is expressly recognized. It is this latter question which is involved in the present case.

We believe it has never been seriously denied (and it is now certainly too late to deny) that the state has the right, in the exercise of its police power, to make all reasonable regulations for the preservation of fish and game within its limits. It may ordain closed seasons; it may prescribe the manner of taking, the times of taking, and the amount to be taken within a given time, as it may deem best for the purpose of preserving and perpetuating the general stock. In the absence of legislation, the citizen may doubtless pursue, take, and dispose of fish and game as he sees fit, and without restraint, so long as he violates no private rights; but when the state steps in and makes proper police regulations, the citizen takes his right of fishing or fowling...