State v. Teachout, 370-81
| Decision Date | 07 September 1982 |
| Docket Number | No. 370-81,370-81 |
| Parties | STATE of Vermont v. Gary TEACHOUT. |
| Court | Vermont Supreme Court |
John J. Easton, Jr., Atty. Gen., and John H. Chase, Sp. Asst. Atty. Gen., Montpelier, for plaintiff-appellee.
Valsangiacomo & Detora, P.C., Barre, for defendant-appellant.
Before BARNEY, C.J., and BILLINGS, HILL, UNDERWOOD and PECK, JJ.
The defendant was cited for a violation of 10 V.S.A.App. § 2b, also referred to as Vermont Fish and Game Regulation 877, transportation of deer parts that were unmarked or tagged. The statute reads in full:
A person who takes a deer in an open season shall immediately upon taking it into possession detach the proper deer tag from his license and affix the tag securely to the deer and keep the tag on the deer during possession and transportation until the deer is cut up for consumption.
A person shall not transport parts of a deer unless the parts or package containing them are marked with the name and address of the person who killed the deer.
It is undisputed that when stopped in his car by a game warden in November, 1980, the defendant had parts of a deer in his possession in green plastic garbage bags.
On appeal the defendant argues that the statute under which he was cited is invalid because at the time it was passed the Fish and Game Board was without authority to enact it, and that therefore he is guilty of no offense. The State, as expected, maintains the statute's validity, and the trial court agreed. We affirm.
The Fish and Game Board derives its power to adopt rules and regulations generally from 10 V.S.A. § 4082, which, at the time in question, provided in pertinent part that:
The board is authorized and empowered at any time to determine under what circumstances, when and in what localities, by what means and in what amounts and numbers fish or wild animals, excepting deer, or any of them, may be pursued, taken, killed or had in possession .... (emphasis added).
At the same time this general authorization excepting such regulation in regard to deer was passed, however, the legislature also passed 10 V.S.A. § 4084, which read as follows:
Any regulation or amendment thereto adopted pursuant to this subchapter which relates to wild animals may apply to all or any part of the state and may do any or all of the following as to any or all species of wild animals;
(1) Establish, extend, shorten or abolish open seasons and closed seasons, except for deer;
(2) Establish, change or abolish daily limits, season and possession limits, except for deer;
(3) Establish and change territorial limits for the pursuit, taking or killing of any or all species or varieties, except for deer;
(4) Prescribe the manner and means of pursuing, taking or killing any species including but not limited to, the prescribing of type or kinds of traps, firearms and weapons, or any other means or device, for taking such game, and including reporting and tagging of game or parts thereof;
(5) Establish, change or abolish restrictions based upon sex, maturity, or other physical distinction, except for deer;
(6) Designate areas for hunting with bow and arrow and the seasons therefore, except for deer. (emphasis added).
Thus, while § 4082 expressly prohibited the Board from regulating by what means and in what amounts deer might be pursued, taken, killed or had in possession, § 4084(4) appeared to grant authority to the Board with equal clarity and force to regulate at least the manner and means of such pursuit, taking or killing of deer, including specifically the tagging of deer or their parts.
In the face of this apparent inconsistency, the defendant argued below by memorandum that § 4084(4) was irrelevant to his case because the violation for which he was cited was the transportation or manner of possession of deer parts without regard to any taking or killing, which was the limited subject matter of § 4084(4). The State replies that § 4084(4), being the...
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