State v. Thompson
| Decision Date | 06 May 2002 |
| Docket Number | No. 25459.,25459. |
| Citation | 349 S.C. 346,563 S.E.2d 325 |
| Parties | STATE of South Carolina, Respondent, v. Jeffrey M. THOMPSON, Appellant. |
| Court | South Carolina Supreme Court |
Thomas J. Thompson, of Townsend & Thompson, of Laurens, for appellant.
Chief Counsel Buford S. Mabry, Jr., Deputy Chief Counsel Paul S. League, and Assistant Chief Counsel James A. Quinn, of South Carolina Department of Natural Resources, of Columbia, for respondent.
Appellant Jeffrey M. Thompson was found guilty in magistrate's court of trapping beaver out of season pursuant to S.C.Code Ann. § 50-11-2540 (Supp.2001). The circuit court affirmed, and he appeals. We affirm.
On March 11, 2001, appellant was discovered inspecting beaver traps which he had set on his mother's property. He was charged with trapping out of season. See § 50-11-2540. He had been issued a depredation permit pursuant to S.C.Code Ann. § 50-11-2570 (Supp.2001), but the permit expired in January and had not been renewed.1 Although appellant challenged the statutes' constitutionality, the magistrate found appellant guilty, and the circuit court affirmed.
Are § 50-11-2540 and § 50-11-2570 unconstitutional?
Appellant argues that sections 50-11-2540 and 50-11-2570 are unconstitutional because they infringe on the fundamental right to defend one's property and they violate the equal protection clauses of the United States and South Carolina Constitutions.
Section 50-11-2540 sets a two-month trapping season as follows:
It is lawful to trap furbearing animals for commercial purposes from January first to March first of each year. The trapping season may not exceed sixty days each year under any circumstances. It is unlawful to trap any other times unless authorized by the department. It is lawful to take furbearing animals by other lawful means during the general open hunting seasons established therefor.
(Emphasis added). However, when a furbearing animal is causing damage to property, section 50-11-2570 provides the following:
(Emphasis added).
Thus, trapping out of season is permitted when the animal is causing damage to property. A person is allowed to trap either: (1) with a special depredation permit, or (2) when the animal is causing damage to the home or the owner's property, then the owner or her designee may trap within 100 yards of the owner's home without a special permit.
Appellant's argument is twofold. First, appellant contends that property owners enjoy a fundamental right to protect their property. Therefore, a property owner may protect her property from an animal causing damage even if the animal is protected by law. Second, appellant maintains that sections 50-11-2540 and 50-11-2570 operate unequally against different property owners who seek to exercise their fundamental right to protect their property. Consequently, appellant contends that the statutes violate equal protection. While we agree with appellant that property owners have a right to protect their property, we find the statutes are constitutional.2
The South Carolina Constitution states: "The privileges and immunities of citizens of this State and of the United States under this Constitution shall not be abridged, nor shall any person be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws." S.C. CONST. art. I, § 3. In other contexts, this Court has noted the "high regard for private property." Karesh v. City Council of City of Charleston, 271 S.C. 339, 342, 247 S.E.2d 342, 344 (1978) (discussing eminent domain). Indeed, the Court has stated that "the great and fundamental principle of all constitutional governments ... secures to every individual the right to acquire, possess, and defend property." Young v. Wiggins, 240 S.C. 426, 435, 126 S.E.2d 360, 365 (1962) (internal quotation marks and citation omitted); see also Keane/Sherratt Partnership v. Hodge, 292 S.C. 459, 465 n. 3, 357 S.E.2d 193, 196 n. 3 (Ct.App.1987) (). These authorities support appellant's argument that the right to protect property is an important and fundamental one.
Moreover, other jurisdictions have found that the right to protect one's property from damage may be sufficient justification for killing wildlife out of season. See, e.g., Cotton v. State, 31 Ala.App. 399, 17 So.2d 590 (1944); State v. Rathbone, 110 Mont. 225, 100 P.2d 86 (1940); State v. Burk, 114 Wash. 370, 195 P. 16 (1921); Cross v. State, 370 P.2d 371 (Wyo.1962). As stated in an annotation on this topic:
The rule appears to be well established that the plea of justification is a valid defense to the charge of unlawfully killing a protected wild animal, where it can be shown that killing was reasonably necessary in order to defend property from damage or destruction by the protected animal.
Annotation, Right to Kill Game in Defense of Person or Property, 93 A.L.R.2d 1366, 1368 (1964).
While justification may be a defense, the courts have nevertheless noted that the State may infringe on private property rights if done so in a reasonable manner. The Supreme Court of Montana in Rathbone stated as follows:
It is conceded that the construction to be given a right guaranteed to the individual by the Constitution must always be a reasonable one. The result of the operation of the police power is necessarily in most instances an infringement of private rights, but in the exercise of such power, property and individual rights may be injured or impaired only to the extent reasonably necessary to preserve the public welfare.
Rathbone, 100 P.2d at 92. In Cotton v. State, the Alabama Court of Appeals, adopting the Rathbone rule, held that:
before the defendant can resort to force in protecting his property from wild animals, (1) he must have exhausted all other remedies provided by law; (2) the use of such force must be reasonably necessary and suitable to protect his property; and (3) he must use only such force and means as a reasonably prudent man would use under like circumstances.
Cotton v. State, 17 So.2d at 591.
The above-cited authorities specifically dealt with statutes that had a blanket rule against trapping out of season. The courts uniformly found that a defendant may utilize justification, based on the right to protect one's property, as a defense to killing wildlife out of season. In South Carolina, however, the Legislature has implicitly recognized the right to protect one's property from a furbearing animal causing damage. See § 50-11-2570. This statute provides a mechanism in the form of a special permit for a property owner to lawfully avoid depredation. § 50-11-2570(A) (). Under subsection 50-11-2570(B), a property owner, or her designee, is not required to have a permit if the trapping is done within 100 yards of the owner's home.
While a "landowner has ... the right to hunt and fish" on her property, this right is "subject to reasonable governmental regulations." Rice Hope Plantation v. South Carolina Pub. Serv. Auth., 216 S.C. 500, 524, 59 S.E.2d 132, 142 (1950), overruled on other grounds, McCall v. Batson, 285 S.C. 243, 329 S.E.2d 741 (1985). We find that section 50-11-2570 represents a reasonable limitation on the right to protect one's property. Furthermore, given that "game and fish are really the property of the State, and the preservation thereof is a matter of public interest," id., sections 50-11-2540 and 50-11-2570 do not unreasonably restrict a property owner's right to protect her property. As noted by the State, the Legislature has taken a balanced approach, allowing a property owner to trap without a permit within 100 yards of her home. Moreover, we note there is no fee for a depredation permit, and, according to the State, these permits are issued on the spot by wildlife officers once the damage has been confirmed.3
Accordingly, we hold that sections 50-11-2540 and 50-11-2570 do not unconstitutionally infringe on a property owner's right to protect her property.
Appellant argues that different property owners are treated unequally under section 50-11-2570, and therefore, the statute does not provide equal protection. Furthermore, appellant contends that because the right to protect property is fundamental, the statute must be reviewed pursuant to a strict scrutiny analysis. We disagree. Initially, we must determine the appropriate standard to review appellant's equal protection argument. If there is no suspect or quasi-suspect class and no fundamental right involved, a statute should be tested under the "rational basis" standard. Bibco Corp. v. City of Sumter, 332 S.C. 45, 504 S.E.2d 112 (1998). As discussed above, we agree with appellant that the right to protect one's property is, in certain contexts, a right which is fundamental in nature. In the equal protection context, however, we...
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