Opinion
S92A0667.
DECIDED JUNE 11, 1992. RECONSIDERATION DENIED JULY 2, 1992.
OCGA § 27-5-5; constitutional question. Whitfield Superior Court. Before Judge Temples.
Michael J. Bowers, Attorney General, Robert S. Bomar, Isaac Byrd, Senior Assistant Attorneys General, for appellant.
Kinney, Kemp, Pickell, Sponcler Joiner, F. Gregory Melton, Weaver Weaver, George W. Weaver, Cook Palmour, Bobby Lee Cook, for appellees.
The Department of Natural Resources seized Cochran's white sturgeon fish imported from California as contraband, contending that they were exotic fish, and that Cochran had no license or permit to raise them in his hatchery, as required by OCGA § 27-5-5.
There is no statutory definition of "exotic fish." The trial court observed that "exotic" is defined in Webster's Third New International Dictionary of the English Language unabridged as: "from another country; not native to the place where found; foreign." The American Fisheries Society defines "exotic" as fish not native to the country where found.
1. (a) OCGA § 27-5-5 (4) requires a license or permit for "all wild animals listed in this Code section," which includes: "All exotic fish which are not held in aquaria or tanks...."
(b) OCGA § 27-1-38 provides the penalty for violating OCGA § 27-5-5 (4):
Unless otherwise specifically provided, any person who violates any of the provisions of this title shall be guilty of a misdemeanor.
2. In Price v. State, 253 Ga. 250 ( 319 S.E.2d 849) (1984), a case involving a violation of Title 27, we stated:
Due process mandates that criminal laws give adequate warning of what conduct will constitute a crime. "[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." [Cits.] [Id. at 251.]
The trial court did not err in holding that OCGA § 27-5-5 (4) is void for vagueness.
Judgment affirmed. All the Justices concur.