State v. Racine

• Decision Date: 03 December 1974
• Docket Number: No. 115-74,115-74
• Citation: 329 A.2d 651,133 Vt. 111
• Parties: STATE of Vermont v. Terry RACINE. STATE of Vermont v. Michael J. WATTERS.
• Court: Vermont Supreme Court

Page 651

329 A.2d 651

133 Vt. 111

STATE of Vermont v. Terry RACINE.

STATE of Vermont v. Michael J. WATTERS.

No. 115-74.

Supreme Court of Vermont.

Dec. 3, 1974.

Robert I. Tepper, State's Atty., and Stephen Alan Dardeck, Deputy State's Atty., for the State.

Joseph M. Oneill, Rutland, for defendant.

Before BARNEY, C. J., SMITH, KEYSER and DALEY, JJ., and SHANGRAW, C. J. (ret.)

KEYSER, Justice.

Defendant Michael Watters was charged with casting the rays of an artificial light upon a field for the purpose of spotting deer, and defendant Terry Racine was charged with assisting him in this endeavor. The informations filed against the two men alleged that these activities were in violation of 10 V.S.A. § 4702, which provides as follows:

A person shall not throw or cast the rays of a spotlight, jack, or other artificial light on any highway, or any field, woodland, or forest, for the purpose of spotting, locating, or taking any wild animal, and provided further, that a light may be used to take skunks and raccoons in accordance with regulations of the board.

Both defendants filed motions to dismiss in district court. They argued that the informations did not state a violation under the statute because they failed to allege that the light was being used for the purpose of taking a wild animal. The State responded that inasmuch as the statute is worded in the disjunctive, it is necessary to charge only that the light was used for the purpose of spotting or locating, and that no allegation that the light was also being used for the purpose of taking is necessary. The defendants' motions to dismiss were granted; and the State, pursuant to 13 V.S.A. § 7403, sought certification of certain questions of law to this Court for determination. The certification was granted and the case is now before us on a narrow, albeit critical, legal issue. Plainly put, the appeal devolves to this inquiry: Is the State required to allege and prove, as an essential element of an offense charged under 10 V.S.A. § 4702, a purpose to take a wild animal?

The positions of the opposing parties may be simply stated. The State contends that the disjunctive wording of the statute is clear, that a crime is properly charged by alleging a purpose of either spotting, locating, or taking, and that such a proscription is entirely within the province of the State's police power. Defendants, on the other hand, maintain that such a reading makes innocent acts criminal and that the Legislature could never have intended such a result. They would thus read the word 'or' as 'and' and require that a purpose of taking be established as an essential element of the offense.

This statute, involving as it does, conduct relating specifically to wild animals, stems from the legislative regulation of activities entirely concerned with the fish and game law. State v. Duranleau, 128 Vt. 206, 211, 260 A.2d 383 (1969). This is an exercise of the police power reserved to the Legislature under Chapter I, Article 5, of the Vermont Constitution. See generally, Elliott v. Fish and Game Commission, 117 Vt. 61, 67-68, 84 A.2d 588 (1951).

The exercise of police power signifies the governmental power of conserving and safeguarding the public safety, health and welfare. State v. Quattropani, 99 Vt. 360, 362-363, 133 A. 352 (1926). In Chapter II, § 63 of the Vermont Constitution, the people of Vermont, by their Constitution, have also invested the Legislature with the authority to exercise this broad power where the wildlife of their State is concerned. State v. Haskell, 84 Vt. 429, 433, 79 A. 852 (1911). In that case, then Justice Watson noted, citing Louisville & Nashville R.R. Co. v. Kentucky, 161 U.S. 677, 701, 16 S.ct. 714, 40 L.Ed. 849 (1896), that 'in the exertion of such power the Legislature is vested with a large discretion'. Id. 84 Vt. at 434, 79 A. at 855.

Where the Legislature is constitutionally directed to exercise its police power in areas involving the State's wildlife, it is not for the Judiciary to pass upon the validity of the concerns expressed or the wisdom of the means chosen to deal with them. See Aronstam v. Cashman, 132 Vt. 538, 325 A.2d 361, 366 (1974). As was quoted in State v. Mahoney, 122 Vt. 456, 462, 176 A.2d 747 (1961):

If the meaning of a statute is plain and its provisions are susceptible of but one interpretation, the courts, in construing the statute, may not take into consideration the injustice which may be caused thereby. If the provisions of a statute are unfair or unjust, the remedy is by a change of the law itself, to be effected by the legislature, and not by judicial action in the guise of interpretation. Donaghue v. Smith, 119 Vt. 259, 267, 126 A.2d 93, 98.

We must examine the statute in light of the construction urged by the State, for a literal meaning of the language certainly supports such an interpretation, and we must presume that all language is inserted in a statute advisedly. Town School District of St. Johnsbury v. Town School District of Topsham, 122 Vt. 268, 272, 169 A.2d 352 (1961). Where the meaning of a statute is plain, there is no necessity for construction, and the Judiciary must enforce it according to its terms. Swanton Village v. Town of Highgate, 131 Vt. 318, 325, 305 A.2d 586 (1973).

It is abundantly clear that the use of the disjunctive 'or' as to the purposes of casting a light requires a construction prohibiting either spotting, locating, or taking a wild animal. This construction is reinforced by a reading of 10 V.S.A. § 4747 which states: 'A person shall not take a wild deer by the aid of a snare, trap, salt lick, jack or other light or use such devices to entrap or ensnare deer.' (Emphasis added). This statute...