State v. Zellmer

• Decision Date: 16 November 1926
• Docket Number: 37639
• Citation: 210 N.W. 774,202 Iowa 638
• Parties: STATE OF IOWA, Appellee, v. W. C. ZELLMER, Appellant
• Court: Iowa Supreme Court

210 N.W. 774

202 Iowa 638

STATE OF IOWA, Appellee, v. W. C. ZELLMER, Appellant

No. 37639

Supreme Court of Iowa, Des Moines

November 16, 1926

Appeal from Union District Court.--HOMER A. FULLER, Judge.

Defendant was convicted before a justice of the peace of having illegal fishing tackle in his possession. He appealed, and in the district court the verdict and judgment went against him. He appeals to this court.

Reversed.

C. T Gibson, for appellant.

Ben J Gibson, Attorney-general, and Neill Garrett, Assistant Attorney-general, for appellee.

MORLING J. DE GRAFF, C. J., and EVANS and ALBERT, JJ., concur.

OPINION

MORLING, J.

We need consider but one question in this case, as the others argued are not likely to arise on a new trial. The question, in brief, is whether the mere possession of a seine is denounced as an offense by Section 1735, Code of 1924, irrespective of the purpose or intent of the accused in having it in his possession. The section provides:

"The possession of a spear, trap, net, or seine, for fishing, shall be unlawful, except where the use of such is permitted by this chapter."

The section is a part of the fish and game laws of the state, all of which, so far as in pari materia, should be considered, in arriving at the intent of the legislature in its enactment. The section also is penal, and its provision should be strictly construed. State v. Olson, 200 Iowa 660, 204 N.W. 278; Rohlf v. Kasemeier, 140 Iowa 182, 118 N.W. 276; Young v. Madison County, 137 Iowa 515, 115 N.W. 23. While the ownership of fish generally is in the state (Section 1704, Code of 1924) persons raising or propagating them under the conditions set out in Section 1707 are the owners. Such fish may undoubtedly be taken by the owners with a seine. Sections 1747 et seq. permit the use of seines in taking fish from the Mississippi and Missouri Rivers, under certain restrictions. The possession of a seine in accordance with those sections is, therefore, not unlawful. Section 1715 declares seines, etc., a public nuisance "while in use or in possession or kept or maintained for the purpose of catching, taking, killing, trapping, or deceiving any fish, birds, or animals contrary to any of the provisions of this chapter * * *" A seine, therefore, is not a nuisance per se. It is such only when in possession or kept or maintained for the purpose of catching fish contrary to law. In other words, the possession is not, of itself, and apart from the purpose of possession, illegal. It would be quite anomalous to exempt the articles from confiscation unless possessed for an illegal purpose, and make the possessor of them subject to a penalty, regardless of his purpose...