Ex parte Fritz

86 Miss. 210

Opinion

Cox, J.,

delivered the opinion of the court.

Louis Fritz was arrested on a charge of violating an ordinance of the board of supervisors of DeSoto county which prohibited the catching of fish in any lake or stream in said county with any seine or net more than seventy-five feet in length or more than six feet in depth or that has smaller meshes than one inch. He sued out a writ of habeas corpus, and represented that he had been unlawfully deprived of his liberty, claiming that the ordinance under which he had been arrested was, for many reasons, unconstitutional and void. Upon the trial it appeared that he had caught fish in the manner prohibited by the ordinance in the waters of Horn Lake. Horn Lake is a considerable body of water, eight or ten miles in length and nearly a half mile-wide, lying partly in Tennessee and partly in DeSoto county, Mississippi. It has an outlet in Mississippi, through Mud Lake and a bayou, into the Mississippi river. It seems from the evidence that this outlet sometimes ceases to flow in time of drought, but it flows continuously during the rainy season, and in times of high water permits the passage of steamers into the lake. It was contended for relator below, and it is urged here, that, inasmuch as he owned the northern prong of Horn Lake, in Tennessee, and the northern shore of the southern prong, in Mississippi, and a considerable part of the southern shore, and owned the bed of a large part of the lake, and had secured from a number of the riparian owners in Mississippi the right to fish in their part of the lake, the fish in that part of the lake belonging to him, or in which he had secured the right to fish, were his property; that he had the right to take them in any manner he might see fit; that the public had no interest in the fish in his waters, and that the state of Mississippi was without power to regulate or in any wise restrict or control him in the exercise of his dominion over them.

We do not find it necessary to pass upon any of the several instruments or evidences of title by which he claims to establish his rights in Horn Lake, nor to determine to what extent, if any, he owns the bed of the lake. It is proper to state, however, in passing, that, conceding all he claims, it is not shown that he owns or has acquired the right to fish in the entire lake. It is perfectly clear that he does not own the fish in Horn Lake, and this would be true even if he owned the bed of the entire lake and all its waters. Fish are ferae naturae. They are incapable, until actually taken, of absolute ownership, except in artificial lakes or in small ponds that are entirely land locked. In all running streams, large lakes, small lakes with outlets into other waters, the right of the state to regulate the time, the manner, and extent of the taking of fish is unquestioned. It is part of the police powers of the state, which has never been parted with and cannot be surrendered. By reason of the migratory habits of fish, their ownership is in the public, and no individual has any absolute property right in them until they have been subjected to his control. It is not only the right of the state, but also its duty, to preserve for the benefit of the general pubilc the fish in its waters, in their migrations and in their breeding places, from destruction or undue reduction in numbers through the caprice, improvidence, or greed of the riparian proprietors as well as of trespassers. People v. Collison, 85 Mich., 105 (48 N. W., 292; West Point Water Power & Land Improvement Co. v. State, 49 Neb., 218 (66 N. W., 6); Weller v. Snover, 42 N. J. Law, 341; People v. Reed, 47 Barb. (N. Y.), 235; People v. Doxtater, 75 Hun. (N. Y.), 472 (27 N. Y. Supp., 481); State v. Blount, 85 Mo., 543; Gentile v. State, 29 Ind., 409; State v. Roberts, 59 N. H., 484; People v. Bridges, 142 (31 N. H., 115; 16 L. R. A., 684); Peters v. State, taking of tke fish in Horn Lake was that he might ship them 96 Tenn., 682 (36 S. W., 399; 33 L. R. A., 114); Lawton v. Steele, 152 U. S., 133 (14 Sup. Ct., 499; 38 L. ed., 385); Organ v. State, 56 Ark., 270 (19 S. W., 840); Ex parte Maier, 103 Cal., 476 (37 Pac., 402; 42 Am. St. Rep., 129); State v. Rodman, 58 Minn., 393 (59 N. W., 1098).

Citation of authorities in support of the general position maintained in this opinion could he multiplied indefinitely. Indeed, we know of no well-considered case anywhere which denies or materially qualifies it. It is held with practical unanimity in all jurisdictions that animals ferae naturae are not the subject of private ownership until reduced to actual possession; that the ownership of such animals, so far as they are capable of ownership, is in the state, not as proprietor, but in its sovereign capacity, as, the representative and for the benefit of all its people in common; and that the state may regulate and restrict the taking of such animals, or absolutely prohibit it, if deemed necessary for their preservation or for the public - good. This being true, it follows that animals ferae naturae, not reduced to actual possession, are not property, within the contemplation of secs. 14 and 17 of the constitution of this state, nor of art. 14 of the constitution of the United States, and that statutes regulating and restricting their capture do not operate a taking of property without just compensation nor a depriving of property without due process of law.

The relator contends that inasmuch as his purpose in the taking of the fish in Horn Lake was that he might ship them to Memphis, in the state of Tennessee, to be there sold, any statute or ordinance restricting him in respect to the extent to which he might take them would be an interference with interstate commerce, and therefore void. The contention is without merit. The supreme court of the Hnited States has held in a number of cases that the grant to congress of the power to regulate interstate commerce does not carry with it any right to regulate the production of commodities, even though the purpose of their production he their sale beyond the limits of the state wherein they are produced. The control of the state, in the exercise of its police powers, over the production of the articles of commerce, is as absolute and unqualified as the control of Congress over their interstate distribution. Kidd v. Pearson, 128 U. S., 1 (9 Sup. Ct., 6; 32 L. ed., 346); United States v. E. C. Knight Co., 156 U. S., 1 (15 Sup. Ct., 249; 39 L. ed., 325). In recognition of this general doctrine, and especially of the police power of the state for the preservation of game, the supreme court of the United States has upheld a state statute which made it an offense to have in possession, for the purpose of transportation beyond the state, birds which had been lawfully killed within the state during the open season. As an original proposition, we would have hesitated to go so far in upholding the power of the state as against the control of congress over interstate commerce; and it is worthy of remark that the supreme court,- in so holding, overruled and disregarded the opinion to the contrary of the supreme courts of Kansas and Idaho, saying: “It is, indeed, true that in State v. Saunders, 19 Kan., 127 (27 Am. St. Rep., 98), and Territory v. Evans, 2 Idaho, 634 (Hasb., 658; 23 Pac., 115; 7 L. R. A., 288), it was held that a state law prohibiting the shipment outside of the state of game killed therein violated the interstate commerce clause of the constitution of the United States; but the reasoning which controlled the decision of these cases is, we think, inconclusive, from the fact that it did not consider the fundamental distinction between the qualified ownership in game and the perfect nature of ownership in other property, and thus overlooked the authority of the state over property in game killed within its confines, and the consequent power of the state to follow such property, into whatever hands it might pass, with the conditions and restrictions deemed necessary for the public interest. Aside from the authority of the state, derived from the common ownership of game, and the trust for the benefit of its people which the state exercised in relation thereto, there is another view of the power of the state in regard to property in game which is equally conclusive. The right to preserve game flows from the undoubted existence in the state of a police power to that end, which may be none the less effectively called into play because by doing so interstate commerce may be remotely and indirectly affected. Indeed, the source of the police power as to game birds (like those covered by the statute here called in question) flows from the duty of the state to preserve for its people a valuable food supply. The exercise by the state of such power therefore comes directly within the principle of Plumley v. Massachusetts, 155 U. S., 461-473 (15 Sup. Ct., 154; 39 L. ed., 223). The power of the state to protect by adequate police regulation its people against the adulteration of articles of food (which. was in that case maintained), although in doing so commerce might be remotely affected, necessarily carried with it the existence of a like power to preserve a food supply which belongs in common to all the people of the state, which can only become the subject of ownership in a qualified way, and which can never be the object of commerce except with the consent of the state, and subject to the conditions which it may deem best to impose for the public good.” Geer v. State of Connecticut, 161 U. S., 519 (16 Sup. Ct., 600; 40 L. ed., 793). We have quoted at some length from the opinion in the above case, because it goes to the greatest extreme in upholding the power of the state over game, and establishes beyond all controversy or cavil the right of the state to do whatever it may deem advisable to preserve for its people this source of food supply. The same reasoning applies with equal force to fish, and leaves nothing more to be said with reference to the power of the state to legislate for their preservation.

It is earnestly insisted that, conceding to the state power to regulate the taking of fish, it cannot delegate this power to the boards of supervisors of the several counties. In support of tins contention it is urged that inasmuch as the powers of government are, under our system, divided into three distinct departments, and each of them confined to a separate magistracy ■ — to wit, those which are legislative to one, those which are judicial to another, and those which are executive to another— and inasmuch as the legislative power has been vested in the legislature, and inasmuch as the hoard of supervisors forms a part of the judicial department of the government, as shown by its being treated in art. 6, together with the other courts, under the title “Judiciary,” the giving to the boards of supervisors of power to regulate the taking of fish would violate these fundamental principles of our system and tend to confound the functions of the several magistracies by imparting to one, wholly judicial, powers in their nature essentially legislative, and exclusively vested in the state legislature. The answer to this argument is that the board of supervisors is not within the scope and operation of the principles invoked. It is not, strictly speaking, a judicial body. Its jurisdiction is now, and has always been, mixed, being in part legislative, in part judicial, and in part executive. It exercised this mixed jurisdiction under the constitution of 1869, and, with its jurisdiction unimpaired, was continued, by the constitution of 1890, as the chief agency for the management of- the police, fiscal, and civil affairs of the several counties. Oomparatively only a small part of its jurisdiction is conferred directly by the constitution. The mass of its powers is conferred by legislative grant, under authority therefor conferred by the constitution. TJnder the constitution of 1869, and also of 1890, the board of supervisors has performed many duties which are essentially legislative in their nature — as, the levying of taxes; the support of schools; the making of regulations for the de-' pasturing of cattle and the cultivation of crops without fences; the establishment of quarantines and regulations of hygiene; the inspection of articles of food; the drainage of swamp lands; the licensing ox prohibition of the liquor traffic; the working of convicts on county farms; the regulation of the taking of oysters, fish, and game; and many others. Power to do none of these things is conferred in express terms directly by the constitution. Power to do them all has been delegated by the legislature in pursuance of the power given to prescribe other duties than those named in the constitution to be performed by the board of supervisors. Having been delegated by the legislature under constitutional warrant, they have become as much a part of the jurisdiction of the board of supervisors as if the power to do them had been expressly and specifically conferred by the constitution itself. To hold otherwise would be to rob the board of supervisors of the great mass of its jurisdiction and practically destroy its usefulness, as well as render nugatory the implied grant by the constitution to the legislature of power to impose upon it duties not prescribed in the constitution. Legislation imposing duties of a similar kind upon the board of supervisors has been heretofore upheld by this court, and we see no reason now for departing from long-recognized principles, and thereby subverting a public policy which gives so large a measure of local self-government to the several counties of the state, and whose wisdom has been so fully vindicated in the beneficent results which have attended its operation. Barataria Banning Co. v. Ott, 84 Miss., 737 (s.c., 37 South. Rep., 121; Ormond v. White, 85 Miss., 276 (s.c., 37 South. Rep., 834).

Relator’s contention that the ordinance under which he was arrested is obnoxious to the inhibitions of our constitution against special legislation cannot be upheld. The ordinance is general in its terms, applying to all the lakes and streams in DeSoto county, and was adopted in pursuance of authority conferred by a general act of the legislature.

It appears that relator was held under a capias issued by B. E. Jones, mayor of Hernando, and ex officio justice of the peace, and it is conceded that the offense charged was not com- rnitted within the territorial- limits of his jurisdiction. Relator cannot he held under this capias. So much of Code 1892, § 2128, as commits the judicial administration of the game laws to majors and justices of the peace, whether the act he done in their respective districts or not, is unconstitutional and void. Riley v. Jones, 73 Miss., 1 (18 South. Rep., 930), and cases there cited. But the said section makes the breach of any regulations, order, or resolutions of the hoard of supervisors touching fish and game a misdemeanor; and any person guilty of such misdemeanor may, of course, be proceeded against before any justice having local jurisdiction. Upon this one point alone the learned judge who heard relator’s petition was in error.

Reversed, relator discharged,.and ‘proceedings quashed.