State v. Rodman

• Decision Date: 25 July 1894
• Docket Number: 8712,8873
• Citation: 59 N.W. 1098,58 Minn. 393
• Parties: State of Minnesota v. C. W. Rodman. Same v. R. E. Cobb
• Court: Minnesota Supreme Court

59 N.W. 1098

58 Minn. 393

State of Minnesota v. C. W. Rodman.

Same v. R. E. Cobb

Nos. 8712, 8873

Supreme Court of Minnesota

July 25, 1894

Submitted on briefs by the state, argued by defendants May 24, 1894

C. W Rodman was indicted January 9, 1894, by the Grand Jury of Ramsey County for the crime of wrongfully, unlawfully, and willfully having in his possession and under his control at No. 18 West Third street in St. Paul, on December 1, 1893 two prairie chickens, two whitebreasted grouse and parts of the flesh of sixteen deer, contrary to Laws 1891, ch. 9, as amended by Laws 1893, ch. 124. When arraigned before the court, defendant demurred to the indictment on the ground that the facts stated therein do not constitute a public offense. The court, John W. Willis, J., overruled the demurrer and on the request of the accused reported the case so far as was necessary to present the questions of law arising thereon and certified the report to this court, and stayed all further proceedings until the decision of this court thereon should be made (1878 G. S. ch. 117, § 11.) The record contained a copy of the indictment, demurrer and order.

R. E Cobb was also indicted January 9, 1894, by the same Grand Jury for the crime of wrongfully, unlawfully and wilfully having in his possession and under his control at No. 294 East Sixth street in St. Paul on December 1, 1893, parts of the flesh of fifty eight deer contrary to the same statutes. When arraigned before the same court he also demurred to the indictment on the same ground. The court overruled the demurrer and on his request reported the case and certified the report to this court and stayed proceedings.

Orders affirmed.

D. D. Williams, for defendant Rodman.

Briggs & Countryman, for defendant Cobb.

It is admitted by the state that the game described in the indictment was lawfully killed and possessed in the open season and kept in possession after the season closed. The state has no absolute property in game or animals feroe naturoe within its borders. These animals are fugitive by nature and in a wild state lack the essential elements of property, in this, that they cannot be the subjects of control or possession.

By the civil law animals feroe naturoe were held to be the property of nobody, and became the property of him who first possessed them, every man having an equal right of pursuing and taking such animals to his own use. At the time the northern hordes overran the Roman Empire this law was abrogated, it being the desire of the conquerors to preserve the game for themselves, and to keep the rustici, or natives, of the country from the use of arms. To further this purpose game was declared to be the property of the king, and only persons who had a license from him were permitted to kill game. These laws having their origin in slavery were introduced into England at the time of the Norman conquest, and became the common law of England, and the king granted special license to certain persons to kill game. Later the privilege was granted to persons having a certain rank, or an income of more than a certain amount per annum.

As these laws were tyrannical, unjust and unnatural, to support them violations thereof were punished by the most severe penalties, not infrequently by the infliction of the death penalty. These laws are not adapted to the condition of society in this country, although some recent decisions which will be cited by the state have falsely declared the common law of England upon this subject to be the common law of this country. But the American people have adopted the civil or natural law, which holds that animals feroe naturoe are bona vacantia, incapable of control or possession, and become the property of him who first possesses them. State v. House, 65 N.C. 315.

The state may, as an act of police jurisdiction, and for the purpose of protecting game animals from destruction, pass reasonable laws for their protection. And these laws are not based upon the fact that the state has an absolute title and property in game animals, but upon the ground that the public has a right to preserve them from extermination.

Under our statutes there is only one way that a person having game in his possession upon November 25th can escape the severe penalties of this harsh and arbitrary law, and that is by destroying it. He cannot ship it out of the state for that is prohibited by the act, he cannot sell it for the possession of the purchaser would be criminal. The law requires the citizen to do that with his property, which he has lawfully acquired, which the state would not have a right to do with its own property, for the state cannot destroy its property except some public necessity requires it. The act is in violation of the Constitution of this State and of the fourteenth amendment of the Constitution of the United States, which provides that no person shall be deprived of his property without due process of law. Allen v. Young, 76 Me. 80; Commonwealth v. Wilkinson, 139 Pa. St. 304; State v. McGuire, 24 Oregon, 366; Guyer v. The Queen, 23 Q. B. D. 100; People v. O'Neil, 71 Mich. 325.

The statute is to be construed as prohibiting only the having possession of game unlawfully caught, taken or killed. Commonwealth v. Hall, 128 Mass. 410; State v. Beal, 75 Me. 289; Bennett v. American Exp. Co., 83 Me. 236; Simpson v. Unwin, 3 B. & Ad. 134; Davis v. McNair, (Ontario) 21 Cent Law. J. 480; State v. Craig, 80 Me. 85.

Laws 1893, ch. 124, violates the constitutional requirement that no law shall contain more than one subject, which shall be expressed in its title. People v. Hills, 35 N.Y. 449.

The act, so far as it relates to punishment for having game in possession, is in violation of the Bill of Rights (Const. Minn. Art 1, § 5) declaring that excessive fines shall not be imposed, nor cruel or unusual punishment inflicted.

H. W. Childs, Attorney General, and Pierce Butler, County Attorney, for the State.

Wm. Ely Bramhall, for Game and Fish Commissioners.

The state has the right to provide how, when, where and for what purposes those within its jurisdiction may acquire or use the food birds, animals and fish feroe naturoe found within its limits. Gentile v. State, 29 Ind. 409; Magner v. People, 97 Ill. 320; American Exp. Co. v. People, 133 Ill. 649; Commonwealth v. Gilbert, 160 Mass. 157.

There are only three utterances of the court which seem opposed to this view, and these when closely examined and analyzed will be found, if not sustaining this doctrine, at least not denying it. These are State v. McGuire, 24 Oregon 366; People v. O'Neil, 71 Mich. 325; James v. Wood, 82 Me. 173.

The complete control which the legislature has over its game and fish is well illustrated by the following decisions: Chambers v. Church, 14 R. I. 398; Allen v. Wyckoff, 48 N. J. Law 90; People v. Fishbough, 58 Hun 404.

It is made unlawful by Section 9 to have venison killed in this state in possession between November 25, and November 1, following, irrespective of the time when killed. The language used being clear, unambiguous and unequivocal, gives no chance for the interpretation that the offense does not extend to that which was lawfully killed. Phelps v. Racey, 60 N.Y. 10; Magner v. People, 97 Ill. 331.

In some of the cases the game found in the possession of the accused was killed outside the state and was not within the language forbidding the possession of any animal thus killed, as does our statute. Whitehead v. Smithers, 2 C. P. D. 553; People v. Racey, 60 N.Y. 10; Roth v. State, 7 Ohio C. C. 62; State v. Randolph, 1 Mo.App. 15; State v. Craig, 80 Me. 85.

But where the game statutes have been framed like ours as in Kansas, Missouri and New York they have always been held to cover game lawfully killed. State v. Saunders, 16 Kan. 127; State v. Judy, 7 Mo.App. 524; Phelps v. Racey, 60 N.Y. 10.

It is however said to be unreasonable to oblige one to destroy wholesome food instead of allowing it to be retained for use. The argument has some plausibility upon its face, but is without foundation. Experience has taught that some time must be fixed after which it shall be unlawful to have it in possession, and the same arguments which are launched against the five day clause would be equally applicable to any other period that might be fixed therefor. Roth v. State, 7 Ohio C. C. 62; Phelps v. Racey, 60 N.Y. 10; State v. Judy, 7 Mo.App. 524.

Excessive fines are not imposed, nor cruel nor unusual punishments inflicted by this act. Mims v. State, 26 Minn. 494; New York Ass'n v. Durham, 51 N.Y.S. 306; Cooley Const. Lim. 402, 403.

The subject of the act is expressed in its title. City of St. Paul v. Colter, 12 Minn. 41; State ex rel. v. Smith, 35 Minn. 257; State ex rel. v. Bigelow, 52 Minn. 307.

Collins, J. Buck, J., did not sit.

OPINION

Collins, J.

These defendants were separately indicted for having in possession, more than five days after the end of the open season, parts of the flesh and meat of deer, contrary to the provisions of Laws 1891, ch. 9, § 11, as amended by Laws 1893, ch. 124, § 9, which reads thus:

"No person shall catch, take or kill, or have in possession or under control for any purpose whatever, any fawn, at any time, nor elk, moose, caribou, or antelope, before the first day of January, 1898; nor any variety of deer, at any time between the twentieth day of November and the first day of November following, except that when the same have been lawfully caught, taken or killed, they may be had in possession or under control for five days, after the time herein limited, for use in the manner and for the purposes herein allowed. Whoever shall offend against any of the provisions of this section shall be guilty of a misdemeanor and shall...