State v. Port Clinton Fish Co.

• Decision Date: 18 December 1987
• Docket Number: L-87-148,87-LW-4548
• Parties: STATE of Ohio, Appellee, v. PORT CLINTON FISH COMPANY, Appellant.
• Court: Ohio Court of Appeals

STATE of Ohio, Appellee, v. PORT CLINTON FISH COMPANY, Appellant.

No. L-87-148. Judgment affirmed, 43 Ohio St. 3d 93 (1989).

87-LW-4548 (6th)

Court of Appeals of Ohio, Sixth District Lucas

December 18, 1987

Appeal from Toledo Municipal Court No. CRB 86-11441.

DECISION AND JOURNAL ENTRY

This case is before this court on appeal from a judgment of the Toledo Municipal Court.

Appellant, the Port Clinton Fish Company, was charged with unlawfully possessing undersized walleye fish in violation of R.C. 1533.63 and O.A.C. Rule 1501:31-3-02(A).

On March 19, 1987, appellant appeared with counsel for trial in Toledo Municipal Court. The state of Ohio and appellant stipulated that on December 17, 1985, officers of the Ohio Fish and Game Department entered the Port Clinton Fish Company located at 1949 Broadway, Toledo, Ohio. The officers entered the cutting room and observed seven (7) boxes of walleye fish marked I.Q.F. The fish in the boxes were walleye fillets allegedly from Olmstead Foods of Canada. Upon a complete inspection, it was determined that the boxes contained forty-two (42) percent undersized walleye.

Appellant moved for a judgment of acquittal on the basis that the statute and the regulation are in violation of the Ohio and the United States Constitutions. The court found the motion for a judgment of acquittal not well-taken and found appellant guilty. Appellant was fined $100 and costs. It is from that judgment which appellant filed a timely notice of appeal asserting the following as his sole assignment of error:

"The trial court erred in denying the motion of defendant for acquittal."

In essence, appellant is contending that a regulation which criminalizes the possession of walleye lawfully obtained outside Ohio is an unconstitutional interference with interstate commerce and abridges one's right to contract without due process of law. Similar issues have been considered and found without merit by this court in State v. Rohr Fish Co. (April 10, 1981), Lucas App. No L-80-260, unreported. However, the Rohr case was decided prior to the amendment of R.C. 1533.63 wherein commercial fishing of walleye was banned in Ohio. Hence, there remains an issue to be resolved by this court as to whether the banning of commercial fishing of walleye necessitates the overruling of Rohr, supra. All of the other issues raised by appellant have been considered and decided many times by this court. O.A.C. 1501:31-3-02 was considered by this court in Dept. of Natural Resources v. White's Landing Fisheries, Inc. (Sept. 27, 1985), Erie County App. No. E-85-10, unreported. While the issue in that case involved yellow perch, this court considered the rule in its entirety and found that Ohio Adm.Code 1501:31-3-02 is a valid and enforceable regulation. We reaffirm that holding today as it applies to walleye and the prescribed length requirements.

We now proceed to consider whether the amendment to R.C. 1533.63 banning commercial fishing of walleye renders the statute unconstitutional. The Ohio Supreme Court in State v. Switzer (1970), 22 Ohio St.2d 47, discussed a state's right to pass laws which indirectly affect interstate commerce wherein the court stated at 55:

"This is apparent from an examination of Section 854, Title 16, U.S.Code, which reads:

" "Nothing in this Act [Sections 851-856] shall be construed to prevent the several states and territories from making or enforcing laws or regulations not inconsistent with the provisions of this Act, or from making or enforcing laws or regulations which shall give further protection to black bass and other fish.'

"Applying the federal statutes, we find that under Section 852b, Title 16, U.S.Code, Ohio's statutes cover fish brought into the state once the fish are within the state "for use, consumption, sale or storage therein * * * .' " ®1¯

Hence, states have authority to pass laws which give further protection to fish as long as such laws meet the requirements set forth in Hughes v. Oklahoma (1979), 441 U.S. 322. The court in Hughes, supra, stated that such statutes must meet the following test:

" * * * (1) whether the challenged statutes regulates evenhandedly with only "incidental' effects on interstate commerce, or discriminates against interstate commerce either on its face or in practical effect; (2) whether the statute serves a legitimate local purpose; and, if so, (3) whether alternative means could promote this local purpose as well without discriminating against interstate commerce." Id. at 336.

R.C. 1533.63 was considered by the court in Hosko v. Teater (N.D.Ohio Jan. 29, 1985), No. C80-542, unreported. In that case the court stated, while addressing the commerce clause,

"In general, the Commerce Clause not only empowers Congress to legislate concerning interstate commerce, but has long been held to also act as a bar to state actions which would discriminate against or unreasonably burden interstate commerce. See Minnesota v. Cloverleaf Creamery, 449 U.S. 456 (1981); Hughes, supra. State legislation which amounts to mere economic protection is almost per se invalid. Philadelphia v. New Jersey, 437 U.S. 617 (1978). In addition, legislation with otherwise valid purposes is also subject to being invalidated if it unreasonably burdens interstate commerce. Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).

"The statute and regulations in issue here cannot be interpreted as favoring local enterprise and intentionally discriminating against interstate commerce. Indeed, those most adversely affected are members of the local commercial fish industry. No Ohio industry is placed in a better position by the fishing restrictions than any similar out-of-state commercial fisherman. Commercial fishing of walleye has been banned to all. If anything, the restrictions act as a boon to out-of-state fishermen who may market their walleye in Ohio without local competition.*

"(* Such out-of-state commercial fishermen can sell walleye in Ohio provided that they meet the legal length requirements imposed by Ohio law (Mosley Dep. p. 51; Mosley Aff. P 13).)

"However, a finding that the restrictions in issue operate "evenhandedly' does not terminate the inquiry into their burden upon interstate commerce. As the Supreme Court, in Pike v. Bruce Church, Inc., supra, stated:

" "Where the state regulates...