State v. Starkweather

• Decision Date: 29 January 1943
• Docket Number: No. 33319.,33319.
• Citation: 7 N.W.2d 747,214 Minn. 232
• Parties: STATE ex rel. OHSMAN & SONS CO., Inc., v. STARKWEATHER, Deputy Director of Division of Game and Fish, Department of Conservation.
• Court: Minnesota Supreme Court

7 N.W.2d 747

214 Minn. 232

STATE ex rel. OHSMAN & SONS CO., Inc., v. STARKWEATHER, Deputy Director of Division of Game and Fish, Department of Conservation.

No. 33319.

Supreme Court of Minnesota.

January 29, 1943.

Appeal from District Court, Ramsey County; Carlton McNally, Judge.

Mandamus proceeding by the State on the relation of Ohsman & Sons Co., Inc., to compel Ernest R. Starkweather, Deputy Director of Division of Game and Fish, Department of Conservation, Minnesota, to issue a resident fur buyer's license to relator, an Iowa corporation, authorized to do business in Minnesota and having a place of business therein, wherein respondent filed a demurrer. From a judgment for relator, respondent appeals.

Reversed.

J. A. A. Burnquist, Atty. Gen., Chester S. Wilson, Deputy Atty. Gen., and Mandt Torrison, Sp. Asst. Atty. Gen., for appellant.

Briggs & Briggs, of St. Paul, for respondent.

HENRY M. GALLAGHER, Chief Justice.

This is a proceeding in mandamus to compel the director of the division of game and fish, state department of conservation, to issue a resident fur buyer's license to Ohsman & Sons Company, an Iowa corporation, authorized to do business in this state and having a place of business in Mankato.

The petition upon which an alternative writ of mandamus issued alleges in part:

"III. That in January, 1942, pursuant to Chapter 410, the Laws of 1941, the relator sent to respondent an application for a resident fur buyer's license together with a check for five dollars ($5.00) and a corporate surety bond in favor of the State of Minnesota in the penal sum of one thousand dollars ($1000.00). That thereafter said application, bond and check were returned to the relator with an accompanying letter from Albert E. Klancke, License Clerk, stating that relator would be required to purchase a non-resident fur buyer's license and pay a two hundred dollar ($200.00) fee in order to receive authority to do business as a fur buyer.

"That thereafter on the 2nd day of February, 1942, relator through its manager, Herman Ohsman, renewed its request to the department and left the same application, check, and bond. That on February 3rd, 1942, the attorney for the Department of Conservation, Mandt Torrison, wrote to relator's attorney to the effect that a resident fur buyer's license could not be authorized.

"IV. That the respondent still refuses to issue a resident license to the relator and that further demand is futile. That relator has no sufficient or adequate remedy at law and unless licensed must discontinue its fur buying business."

The director demurred upon the ground "that the facts stated in the petition and writ do not constitute a cause of action." The trial court overruled the demurrer with leave to the director to file a return within ten days. No return having been filed, judgment was entered commanding the director to issue to Ohsman & Sons Company, Incorporated, a "resident wholesale fur dealer's license." The director appeals from the judgment.

The sole question presented is whether a foreign corporation licensed to do business in this state is entitled to receive a resident fur buyer's license upon payment of the fee prescribed for residents of this state or whether it must pay the fee prescribed for nonresidents.

The statute pertaining to the issuance of fur dealer's licenses is L.1941, c. 410, Minn.St.1941, § 98.12, amending Mason St. 1940 Supp. § 5547, which provides: "No person shall engage in the business of buying furs until he shall have procured a license so to do from the director. Fees, payable to the director, for such license shall be as follows: For a local resident fur buyer's license, $5.00; for a resident traveling fur buyer's license, $10.00; for a non-resident local or traveling fur buyer's license, $200.00; for a resident wholesale fur buyer's license, $5.00."

Statutes regulating the taking of wild life are within the police power of the state. The underlying theory of such statutes is stated in Lacoste v. Department of Conservation, 263 U.S. 545, 549, 44 S.Ct. 186, 187, 68 L.Ed. 437, thus: "The wild animals within its borders are, so far as capable of ownership, owned by the state in its sovereign capacity for the common benefit of all of its people. Because of such ownership, and in the exercise of its police power the state may regulate and control the taking, subsequent use and property rights that may be acquired therein. Geer v. [State of] Connecticut, 161 U.S. 519, 528, 16 S.Ct. 600, 40 L.Ed. 793; Ward v. Race Horse, 163 U.S. 504, 507, 16 S.Ct. 1076, 41 L.Ed. 244; Silz v. Hesterberg, 211 U.S. 31, 39, 29 S.Ct. 10, 53 L.Ed. 75; Patsone v. [Commonwealth of] Pennsylvania, 232 U.S. 138, 143, 34 S.Ct. 281, 58 L.Ed. 539; Kennedy v. Becker, 241 U.S. 556, 562, 36 S.Ct. 705, 60 L.Ed. 1166; Carey v. [State of] South Dakota, 250 U.S. 118, 39 S.Ct. 403, 63 L.Ed. 886; State v. Rodman, 58 Minn. 393, 400, 59 N.W. 1098."

See, also, Selkirk v. Stephens, 72 Minn. 335, 75 N.W. 386, 40 L.R.A. 759; State v. Poole, 93 Minn. 148, 100 N.W. 647, 3 Ann.Cas. 12; State v. Shattuck, 96 Minn. 45, 104 N.W. 719, 6 Ann.Cas. 934.

It is settled law that the state may impose upon nonresidents a larger license fee than it imposes upon residents. The discrimination in the case of hunting and fishing licenses is justified under the police power on the ground that game, fish, and furbearing animals when not reduced to possession belong to the state, as a part of its natural resources, which it can protect and save for its own citizens. 24 Am.Jur., Game and Game Laws, p. 386, § 16; Annotations, 61 A.L.R. 338, and 112 A.L.R. 63; Williams v. Fears, 179 U.S. 270, 21 S.Ct. 128, 45 L.Ed. 186; American Harrow Co. v. Shaffer, C.C., 68 F. 750; State v. Smith, 71 Ark. 478, 75 S.W. 1081; In re Eberle, C.C., 98 F. 295.

Relator does not dispute the right of the state to pass statutes regulating the taking of wild life or to discriminate against nonresidents, but it contends that, having procured a...