Woods v. Perkins

• Decision Date: 03 July 1920
• Parties: WOODS v. PERKINS.
• Court: Maine Supreme Court

110 A. 633

WOODS

v. PERKINS.

Supreme Judicial Court of Maine.

July 3, 1920.

Exceptions from Bangor Municipal Court.

Action by Jarvis B. Woods against Frank M. Perkins. Judgment for defendant, and plaintiff excepted and the exceptions were certified to the Chief Justice. Exceptions sustained.

Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, DUNN, and MORRILL, JJ.

George E. Thompson and James D. Maxwell, both of Bangor, for plaintiff.

Willis E. Parsons, of Foxcroft, for defendant.

CORNISH, C. J. Chapter 131 of the Public Laws of 1919, relating to the protection of moose, contains this provision:

"No person shall, between the first day of December of each year and the twentieth day of November of the following year, both days inclusive, hunt, take, catch, kill or have in possession any bull moose or part thereof, whenever or wherever taken, caught or killed," etc.

By virtue of this section, the defendant, a duly commissioned and qualified game warden, on the 15th day of October, 1919, seized and still holds the carcass of a bull moose which the plaintiff had lawfully killed in the province of New Brunswick, and had transported and delivered to the Bangor Dairy Company in the city of Bangor, Me., to be kept in cold storage for him. Transportation had therefore ceased and no question under the Interstate Commerce Act (24 Stat. 379) as to the right to interfere with property in transit is involved.

On December 24, 1919, the plaintiff brought this action of trover in the Bangor municipal court to recover the value of the carcass so seized, and that court having ruled in favor of the defendant upon an agreed statement of facts, the case is now before the law court upon the plaintiff's exceptions which have been certified directly to the Chief Justice in accordance with the provisions of Pr. and Sp. Laws of 1895, c. 211, § 6.

The first point in issue is the scope of the act of 1919, before quoted. Was it intended by the Legislature to include, and does it include, a case of this sort where one has in possession during close time a moose lawfully killed in another jurisdiction and afterwards imported into this state, or should its force be restricted to having in possession in close time a moose unlawfully taken, caught, or killed within the limits of the state of Maine? We think the former is the true interpretation of the act. Construing the words "according to the common meaning of the language" (R. S. c. 1, § 6, par. 1) leads to no other conclusion. The phrase "wherever taken, caught or killed" is unlimited as to space. It includes New Brunswick and New Hampshire as well as Maine. These words either have this meaning or they are meaningless, and we are loath to assume that the Legislature had no purpose whatever in inserting them. "Wherever" as construed to mean "wherever within the state of Maine" would be a needless and useless employment of the term, because without it the act necessarily embraces the entire state.

The history of this particular legislation emphasizes our view. The earlier statutes contained no words which would naturally indicate an intention to cover imported game. Nor did the general revision of the fish and game laws in 1913, which provided for a close time on moose throughout the year, with the exception of the month of November, P. L. 1913, c. 206, § 28. In 1915, an absolute close time throughout the entire period until November 1, 1919, was created, the evident purpose being to preserve this diminishing species of game by every means within the power of the Legislature. The general revision of the fish and game laws in 1917 (chapter 219) retained the same provision as to close time until November 1, 1919, and provided for the entire month of November as open time after that date.

Then in 1919 the Legislature made more stringent regulations. The open time was decreased to the last 10 days in November, and, in order to guard against possible evasion of the law when that short November open time should come into vogue, the Legislature passed this act in question (chapter 131), which was a substitute for R. S. c. 33, § 37, and P. L. 1917, c. 219, § 37, and deliberately inserted the new and sweeping terms "whenever or wherever taken, caught or killed." The obvious purpose of this amendment was not to affect the legality of the taking of game in another state or province, a purpose quite beyond the power of the Legislature of Maine to effectuate, but to prohibit the possession in this state, during close time, of such game wherever killed, and thus to prevent evasion of the law, on the part of those, especially along the border, who might claim that a moose found in their possession had been killed in another jurisdiction, although in fact killed in this state, thus rendering the enforcement of the law much more difficult. The amendment was simply another step toward the protection of the game within our borders, and its terms are so clear and unambiguous as to really need no construction on the part of the court.

The deer statute was similarly amended many years ago. The original act simply prohibited during close time the killing, destroying, or having in possession of more than a certain number of deer, and contained no clause indicating any legislative intent to prevent the possession of deer killed elsewhere. R. S. 1883, c. 30, § 4; Pub. L. 1891, c. 95, § 4. Under the statute in that form our court held that it was not intended to interfere with foreign game brought into the state at any time, nor with game lawfully taken or killed here. State v. Bucknam, 88 Me. 385, 34 Atl. 170, 51 Am. St. Rep. 406, citing with approval People v. O'Neil, 71 Mich. 325, 39 N. W. 1, and Commonwealth v. Wilkinson, 139 Pa. 298, 21 Atl. 14, in which cases statutes of similar import were construed. In the same line are People v. Buffalo Fish Co., 164 N. Y. 93, 58 N. E. 34, 52 L R. A. 803, 79 Am. St. Rep. 622; People v. Bootman, 180 N. Y. 1, 72 N. E. 505, 2 Ann. Cas. 226; Commonwealth v. Hall, 128 Mass. 410, 35 Am. Rep. 387.

Counsel for the plaintiff confidently relies upon State v. Bucknam, supra, as decisive of the case at bar, but, as has been seen, that case construed a statute of limited, not unlimited, scope. Therefore it cannot be regarded as a precedent here. It is interesting to note that that decision was rendered in 1896, and in 1901 the Legislature amended the deer act so as to expressly extend its range by adding the words "whenever or wherever taken, caught or killed," precisely the same words as were inserted in the moose statute in 1919. Since that, amendment to the deer statute the court has had no occasion to pass upon its interpretation.

Some courts have gone so far as to hold that imported fish or game is included within the purview of a statute containing no express provision sufficient to include imported game, as in State v. Shattuck, 96 Minn. 45, 104 N. W. 719, 6 Ann. Cas. 934; Ex parte Maier, 103 Cal. 470, 37 Pac. 402, 42 Am. St, Rep. 129; Roth v. State, 51 Ohio St. 209, 37 N. E. 259, 46 Am. St. Rep. 566; Magner v. People, 97 Ill. 320; State v. Schuman, 36 Or. 16, 58 Pac. 661, 47 L. R. A. 153, 78 Am. St. Rep. 754; Commonwealth v. Savage, 155 Mass. 278, 29 N. E. 468—a contrariety of views which is noted in 13 R. C. L. p. 696. But the comprehensive language in the present statute places the construction beyond all doubt, and renders the plaintiff a violator of the law.

In the second place, the plaintiff contends that if the statute as amended applies to imported game it is unconstitutional as depriving the owner of his property.

This contention cannot be upheld. The constitutionality of the entire fish and game law rests upon the police power of the state, and the Legislature may pass all reasonable laws to enforce that power. The fact that some owners of property may be thereby at times restricted in or deprived of its use does not make such laws unreasonable. Such a result is of frequent occurrence. Thus in Commonwealth v. Gilbert, ...