Imágenes de páginas
PDF
EPUB

It is competent for the state, for the enforcement of its game laws, to prohibit absolutely the importation and sale of game and fish during the closed season or during the entire year.

People vs. O'Neil, 110 Mich., page 324.

Quail and other wild fowl, or birds fit for food, come within the meaning of the word "game" as used in the statute.

People vs. O'Neil, 71 Mich., page 325.

The owner of a fee of land whether it be upland or covered with water has the exclusive right of fowling upon his own land.

Every person has a right to shoot or capture wild fowl in any place where he has a right to be if he does not infringe upon the rights of others having a better right.

Sterling vs. Jackson, 69 Mich., page 488.

The wild game of the state belongs to the people in their collective sovereign capacity and is not the subject of property owners, except in so far as the people may elect to make it so, and they may if they see fit absolutely prohibit the killing of it or the traffic or commerce in it, and the taking and disposition thereof is the subject of legislative enactment.

People vs. O'Neil, 110 Mich., page 324;

Geer vs. Conn., 161 U. S. 519;

Ex parte Maier, 103 Cal. 476, 37 Pac. 402.

The right of the state is maintained to adopt any reasonable regulation, not only as to time and manner of taking game, but also imposing limitation as to the right of property in such game after it has been taken. He who takes or kills game has not absolute property in such game, and takes it subject to all the provisions of the law authorizing its taking.

People vs. Setunsky, 161 Mich., page 628;

Geer vs. Conn., 161 U. S., 519, and citations contained therein;

Ward vs. Racehorse, 163 U. S., page 504.

It is common knowledge that legislatures elsewhere, as well as in this state, have passed laws regulating shooting, as well as fishing, and limiting the quantity that a person may kill or catch, enforcing license and imposing penalties for infractions of the law.

People vs. Setunsky, 161 Mich., page 628;

Osborn vs. Charlevoix Circuit Judge, 114 Mich., page 655;

People vs. Dornbos, 127 Mich., page 136;

People vs. Lassen, 142 Mich., page 597 in re Yell, 107 Mich., page 228.

Riparian owners along the great lakes own to the meander line, outside of which the title is in the state in trust for its citizens.

Ainsworth vs. Munoskong Hunting & Fishing Club, 159 Mich., page 61.

It would undoubtedly be a violation of the statute fixing a closed season on any kind of game or fish, for any person to have in possession, at any time,

fish or game, the possession of which is prohibited, no matter from what source such game or fish is obtained. For decisions sustaining this contention, see:

People vs. Dornbos, 127 Mich., page 136;
People vs. Silz, 219 U. S., page 31;

People vs. Lassen, 142 Mich., page 597;
Geer vs. Conn., 161 U. S., page 519;
People vs. O'Neil, 110 Mich., page 324.

THE RIGHT OF SEIZURE.

QUE PROCESS OF LAW.

No person shall be deprived of his life, liberty or property without due process of law.

Constitution of the United States, 5th and 14th amendments.

This clause of the Constitution applies only to such rights as are in their nature fundamental, which belong to the right of citizens of all free governments.

Scott vs. Sanford, 60 U. S., 393;

Carfield vs. Caryell, 4 Wash. D. C. 380.

It is true that under the fourteenth amendment, no state can leprive a person of life, liberty or property, without due process of law. But in determining what is due process of law, we are bound to consider the nature of the property, the necessity for the sacrifice and the extent to which it has heretofore been regarded as within police power. So far as property is inoffensive or harmless, it can only be destroyed by legal proceedings with due notice to the owner; but so far as it is dangerous to the safety or health of the community, due process of law may authorize its summary destruction.

Sentell vs. R. R., 106 U. S. 698;

Lawton vs. Steel, 152 U. S. 133;

Smith vs. Maryland, 59;

Fertilizing Co. vs. Hyde Park, 97 U. S. 659;

Osborn vs. Charlevoix Circuit Judge, 114 Mich., page 655.

There is no doubt of the power of the federal or state government to declare forfeited and destroyed or sold articles found in use by the owner for the perpetration of crime. There is probably no civilized country or state which does not enforce such laws. The Canadian government condemns foreign vessels unlawfully fishing in her waters on the great lakes. The United States government summarily seizes and destroys vessels unlawfully engaged in sealing, and the states bordering the ocean enforce rigorous measures to protect the oyster.

Osborn vs. Charlevoix Circuit Judge, 114 Mich., page 655.

It is a general rule that an officer clothed with proper authority may arrest and take before a magistrate any person who is committing a misdemeanor within view of such officer, and we have no doubt of the authority of the legislature to require the seizure of apparatus while being unlawfully used, the same to

be held subject to disposition by the court. Such taking and disposition of property are not without due process of law.

Osborn vs. Charlevoix Circuit Judge, 114 Mich., page 655;

Lawton vs. Steel, 152 U. S., page 133.

Act 110 of the public acts of 1893 authorizing the seizure of all nets, found in use in violation of the law, is not within the inhibition against deprivation of property without due process of law, since the right to seize is a valid exercise of police power and the act requires a judicial determination of illegal use before the property can be destroyed.

Osborn vs. Charlevoix Circuit Judge, 114 Mich., page 655.

It is a general rule that a criminal prosecution can not be restrained by an injunction. Once have it understood that they may be, and the public would labor under additional embarrassment to the already great obstacles to the prevention of crime. There is no excuse, upon reason or authority, for enjoining the prosecution of the complainant for violation of the law providing for a close season. If the law were unconstitutional, it would be available by way of defense to a criminal charge, and therefore no occasion for chancery to také jurisdiction for the want of adequate remedy at law.

Osborn vs. Charlevoix Circuit Judge, 114 Mich., page 667;

Kleinke et al. vs. W. R. Oates, state game, fish and forestry warden, 22 D. L.
N., page 636.

DECISIONS RELATIVE TO POLICE POWER.

The right to preserve game flows from the undoubted existence of the police power to that end, which may be none the less efficiently called into play because by so doing interstate commerce may be remotely or indirectly affected.

People vs. Lassen, 142 Mich., page 597;

Geer vs. Connecticut, 161 U. S., 519;

Hall vs. Decuir, 95 U. S., 485;

People vs. Silz, 219 U. S., page 31.

Indeed the police power as to game birds flows from the duty of the state to preserve for its people a valuable food supply.

McCurdy vs. Virginia, 94 U. S., page 395;

Ex parte Maier, 103 Cal., 467;

Osborn vs. Charlevoix Circuit Judge, 114 Mich., page 655.

The police power is universally conceded to include everything essential to public safety, health or morals and justifies the destruction by summary proceedings, of whatever may be regarded as a public nuisance. Under this power it has been held that the state may order the destruction of a house falling to decay or otherwise endangering the life of passersby; or the destruction of such as are in the path of a conflagration; the slaughter of diseased cattle; the destruction of decayed or unwholesome food; the prohibition of wooden buildings in cities; the regulation of railways and other means of public conveyance; and of interment in burial grounds; the restriction of objectionable trades to certain localities; the compulsory vaccination of children; the confinement of he insane

and those afflicted with contagious diseases; the restriction of vagrants, beggars and habitual drunkards; the suppression of obscene publications and houses of ill-fame; the prohibition of gambling houses and places where intoxicating liquors are sold.

Osborn vs. Charlevoix Circuit Judge, 114 Mich., page 655;

Lawton vs. Steel, 152 U. S., page 133.

The right of the state, under its police power, to enforce the fish and game laws upon the lands of a private owner does not take away the owner's right to maintain trespass against those who invade his close without permission for the purpose of fishing.

Giddings vs. Rogalewski, 192 Mich., 319.

It has been provided that the possession of certain kinds of game during the closed season shall be prohibited owing to the possibility of deal in game selling game or birds of the domestic kind under the claim that they were taken in another state or country. The object of such a law is not to affect the legality of taking game in any other state, but to protect local game in the interest of a food supply for the people of the state. We can not say that such purpose frequently recognized and acted upon is an abuse of the police power of the state and as such to be declared void because contrary to the 14th amendment to the Constitution.

That the state may not pass laws directly regulating foreign or interstate commerce has frequently been held in the decisions of this court; but, while this is true, it has also been held in repeated instances that laws passed by the state in the exercise of its police power, not in conflict with the laws of Congress upon the same subject and indirectly or remotely affecting interstate commerce, are nevertheless valid laws.

Mo. K. & T. R. Co. vs. Haber, 191 U. S., page 477;

Ashell vs. Kansas, 209 U. S., page 251.

The test as to whether the police power is validly exercised, is, whether the enactment has relation to the public welfare, as it has been deemed of sufficient importance to justify the legislature of practically all the states to enact laws for the protection and preservation of game, and we have seen no case which challenges this as a legislative right, clearly within the exercice of the police power.

Lawton vs. Steel, 157 U. S., page 133;

Osborn vs. Charlevoix Circuit Judge, 114 Mich., page 655.

The legislature may, in the exercise of its police power for the protection of game and fish, prohibit the sale of same, though lawfully acquired and though an article of food not deleterious in itself.

People vs. O'Neil, 110 Mich., page 324.

For additional cases relative to game and fish see reference in cases quoted

f

and

19 Cyc., page 1009;

24 Cent. digest, page 1025;

West's Mich. Digest, Vol. 3, page 1, and supplements thereto.

DIGEST

OF

IMPORTANT GENERAL

GAME AND FISH LAWS

OF

MICHIGAN

1921-1922

« AnteriorContinuar »