Opinion
December 12, 1927.
1. FISH: Dynamiting Waters: Statutes. Section 5616, Revised Statutes 1919, providing that no person shall place dynamite in the waters of this State whereby fish may be killed, injured or destroyed, and that no person by any such means shall kill, catch or take any fish from said waters, and Section 5615, proscribing the use of dynamite in any of the waters of this State except by special permission and under the supervision of the State Game-and-Fish Commissioner, apply only to persons acting in a private capacity. When so construed, they are reconciled with Section 5652, which, with the avowed purpose on the part of the State to propagate and maintain game and food fish for the benefit of the public, empowers the Game-and-Fish Commissioner to take from the public waters, at such times and in such manner as he thinks best, fish which in his judgment hinder or prevent the propagation of game or food fish.
2. ____: ____: Destruction of Gar: Power of Commissioner and Assistants. The Game-and-Fish Commissioner is given power by statute (Sec. 5652, R.S. 1919) to take outlaw fish from the waters of this State by such means and in such manner as he may think best, even to use dynamite to destroy them, and gar which hinder and prevent the propagation of game and food fish are outlaws; and a deputy game-and-fish warden, who under the direction and by the permission of the commissioner, places and explodes dynamite in a portion of the public waters infested with gar, for the purpose of destroying the gar and preserving the game and food fish in the rest of the river, commits no crime, although a few small bass and perch are killed by the explosion.
Corpus Juris-Cyc. References: Constitutional Law, 12 C.J., Section 341, p. 853, n. 2. Fish, 26 C.J., Section 42, p. 623, n. 92; Section 48, p. 629, n. 37; Section 55, p. 635, n. 6. Statutes, 36 Cyc., p. 1129, n. 59; p. 1140, n. 64.
Appeal from Phelps Circuit Court. — Hon. W.E. Barton, Judge.
REVERSED.
Hiett, Lamar Covert for appellant.
(1) The Legislature had the power to create the office of State Game-and-Fish Commissioner and to give him such power and authority as it thought he should have; also to define his duties. Mo. Constitution, sec. 1, art. 4; State ex rel. v. Pub. Serv. Comm, 270 Mo. 447; State v. Wear, 145 Mo. 162; Ludlow-Saylor Wire Co. v. Woolbrink, 275 Mo. 339. (2) Secs. 5615 and 5616, R.S. 1919, are general statutes. Section 5652 is a special statute, and also a later statute than are Sections 5615 and 5616, and prevail over the general statutes. A later special statute will be regarded as an exception to or a qualification of a prior general statute. 36 Cyc. 1151; Folk v. St. Louis, 250 Mo. 136. (3) If it should be contended that the Act of 1915 makes Sec. 5616, R.S. 1919, a later act than Sec. 5652, R.S. 1919, and the last expression of the Legislature, still Section 5652 will prevail, for the reason that Section 5616 is a general statute and Section 5652 is a special statute. Where the general act is later the special act will be construed as an exception unless the special statute is repealed in express words or by necessary implication. Folk v. St. Louis, 250 Mo. 136; State v. Buder, 287 S.W. 309; 36 Cyc. 1151. (4) The construction of a statute by those who are charged with its enforcement is entitled to great consideration when the court is called upon to construe the statute. Light and Power Co. v. Baker, 293 S.W. 339. (5) A statute should be so construed that effect will be given to all its provisions. Bank v. Ripley, 161 Mo. 126; State ex rel. v. Heman, 70 Mo. 441; State ex rel. v. County Court, 128 Mo. 427; Riddick v. Walsh, 15 Mo. 519. (6) When it is plain that a particular intention was in the mind of the Legislature, though not precisely expressed, that intention must govern and control the strict letter of the law. State v. King, 44 Mo. 283. (7) It is fundamental in construing any or all sections of an act that the general purpose of the Legislature be gathered from the whole act and that the several sections of the act should be so construed as to effectuate the purpose of the Legislature, and that any seeming contradiction or inconsistency of one section with another should be harmonized if possible, and effect given to the provisions of each and every section. Pembroke v. Huston, 180 Mo. 627; Darling v. Potts, 118 Mo. 506; Stump v. Hornbeck, 94 Mo. 26; Lipson v. Smith, 68 Mo. App. 397.
North T. Gentry, Attorney-General, and A.B. Lovan, Assistant Attorney-General, for respondent.
(1) The information is based on Section 5616, which is above set out. It will be noted that it provides that "no person shall place any dynamite, giant powder, nitroglycerin or any other explosive substance of which nitroglycerin composes a part, or any other explosive substance or preparation in any of the waters of this state, whereby any fish that may be in said waters may be killed, injured, or destroyed, and no person by any such means shall kill, catch or take any fish from said waters." Section 5615 further provides that "the use of dynamite or explosives in any of the waters of this state is prohibited except by the special permission and under the supervision of the state game and fish commissioner, and then only for mining or mechanical purposes, or to recover the bodies of persons." Nowhere in the statutes is the Game-and-Fish Commissioner given the right or authority to use dynamite except that he may give permission and supervise the use of dynamite for the particular purposes above set out in Section 5615. The statute plainly prohibits that which the defendant admits that he did, namely, use dynamite in the river for a purpose entirely outside of the exception mentioned in Section 5615. (2) The appellant contends that the circuit court construed the statute to mean that the defendant had the right to use dynamite, but that if he killed any fish other than gar he would be guilty. The respondent does not understand that the circuit court took that position. That would be going as far as the instructions to Shylock — that he could have his pound of flesh, "but shed thou no blood." That would be saying, "Kill the gar with dynamite but do not injure another fish." In any event, such a construction is wrong. Neither the defendant nor the Game-and-Fish Department had a right or the authority to use dynamite in the river for any purpose except for mining or mechanical purposes or to recover dead bodies. (3) There is nothing in Section 5652 that authorizes the use of dynamite. The attention of the court is specifically directed to the fact that Section 5652 refers back to Section 5651, in that it states, "The state game and fish commissioner may take at such time and in such manner from public waters of this state fish, which, in his judgment, hinder or prevent the propagation of game or food fish, or when fish are in danger of perishing. Such removal shall be effected by such means and under such regulations as the state game and fish commissioner may provide." (4) The appellant says that because this section refers to the sale of fish the Legislature meant to provide for the sale of fish that might be injured by the use of dynamite to kill the gar. This provision about the sale of fish refers to a situation evidently where a pond or lake containing fish must, for some reason, be drained, and because of that the fish be "in danger of perishing," in which event the State Game-and-Fish Commissioner may take the fish and remove them to other waters or, when necessary, sell some of them and destroy the fish "which in his judgment hinder or prevent the propagation of game and food fish." The section cannot be made to read so as to authorize anybody to use dynamite in any waters of the State except for the purposes mentioned in Section 5615. (5) Assuming that this court will construe the foregoing section of the statute according to the views explained herein, going section of the statute according to the views explained herein, then this question presents itself: Is it a defense to the charge to say that the defendant and the State Game-and-Fish Department construed the section to mean that the defendant had a right to do what the information charges he did, namely, place dynamite in Jack's Fork River and thereby kill certain fish? This question must be answered against the appellant, since the general rule, old as the common law, is that "ignorance of the law excuses no man." 16 C.J. 84; 2 Wharton's Criminal Evidence (10 Ed.) sec. 723; State v. Wilforth, 74 Mo. 528; Frazer v. State, 37 S.E. 116.
The Prosecuting Attorney of Texas County filed in the circuit court a verified information charging defendant (a deputy fish-and-game warden) with killing fish in Jack's Fork of Current River on September __, 1926, by exploding dynamite therein. On change of venue to Phelps County the jury returned a verdict of guilty, assessing the punishment at a fine of six hundred dollars, defendant duly appealing to this court.
The information is based on Section 5616, Revised Statutes 1919. There is no controversy as to the facts. Their salient features develop that the Game-and-Fish Commissioner of the State of Missouri authorized and instructed his assistant Fred J. Foster, in charge of and an expert on fish, to take charge of the removal of undesirable fish from the public waters of the State, and in pursuance thereof promulgated a regulation relative to the use of dynamite for such purpose. The defendant was a deputy fish-and-game warden assigned to certain counties, among which was the County of Texas. It seems that a certain water hole of Jack's Fork became infested with gar, which destroy food and game fish, and that certain citizens residing in the community desired the gar removed. The citizens advised with defendant, who wrote Keith McCanse, the Game-and-Fish Commissioner of the State, relative to the matter and he referred it to Foster. Thereupon Foster, answering the letter, advised the course to be pursued in a letter, omitting caption and signature, as follows:
"I have your letter of the eleventh in regard to dynamiting gar. At any time you catch them congregating in schools, you may go ahead and dynamite or use any other means to destroy them. Watch carefully to see that you are not destroying game fish."
We herewith insert a paraphrase in rhyme of the assistant commissioner's letter of instructions to defendant, the result of an inspiration penned by the learned Assistant Attorney-General, Mr. Lovan, interpreting the letter as permitting the taking of the pound of flesh, but proscribing the spilling of a drop of blood, reading:
"Mr. Deputy in charge of fish, You are informed it is my wish, That you take some dynamite in your flivver And proceed to Jack's Fork River. And, standing on the gravelly bar, Cast in the shots to kill the gar.
"But when you execute this command, Don't forget the law will demand That while killing a gar, you must not harass A single sucker, catfish or bass. You must obey instructions without fail Or run the risk of going to jail."
The evidence develops that gar hinder and prevent the propagation of game and food fish. A number of witnesses testified that the water hole of Jack's Fork mentioned had become infested with gar. It also develops that the State Game-and-Fish Commissioner construed Section 5652, Revised Statutes 1919, to give him authority to use dynamite in the destruction of fish which hinder and prevent the propagation of food and game fish, and that the commissioner so instructed his deputy. Pursuant to the letter of Foster, defendant gathered together a number of residents of the community, going to the particular water hole and dynamiting it. The water hole was from two hundred to two hundred and fifty yards in length, running from shallow water to a depth of fifteen feet or more. Upon dynamiting the hole the result showed the death of a dozen to fifteen fish, among which were ten to twelve suckers, two small bass and a few small perch. The result further showed the killing of a few small gar. The only statutes that bear on the question are Sections 5615, 5616, 5622 and 5652, Revised Statutes 1919. They are as follows:
"Sec. 5615. Explosives prohibited — penalty. — The use of dynamite or explosives in any of the waters of this State is prohibited except by the special permission and under the supervision of the state game and fish commissioner, and then only for mining or mechanical purposes, or to recover the bodies of persons. Any person, firm or corporation offending against any of the provisions of this section shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined not less than five hundred dollars nor more than one thousand dollars for each offense.
"Sec. 5616. Poison and explosives not to be used to kill fish — penalty. — No person shall place or use in any of the waters of this State any medical drug, any coculus indicus, or fish berry, or any other poisonous thing or substance, calculated to poison, kill, or injure any fish, nor shall by such means kill, catch or take any fish that may be in said waters, and no person shall place any dynamite, giant powder, nitroglycerin, or any explosive substance of which nitroglycerin composes a part, or any other explosive substance or preparation in any of the waters of this State, whereby any fish that may be in said waters may be killed, injured, or destroyed, and no person by any such means shall kill, catch or take any fish from said waters. Any person who shall violate any of the provisions of this section, shall on conviction be adjudged guilty of a felony and punished by imprisonment in the penitentiary for a term not exceeding two years, or by imprisonment in the county jail not less than thirty days, or by fine not less than one hundred dollars, or by both such fine and imprisonment.
"Sec. 5622. Logging, rock or hand fishing. — It shall be unlawful for any person or persons to take, catch or kill any fish in any of the waters of this State by means of `logging' or `rock fishing.' Provided further, that fish known as hickory shad and grinnel and gar may be killed at any time with a gig.
"Sec. 5652. May remove fish, when. — The state game and fish commissioner may take at such time and in such manner from public waters of this State fish which, in his judgment, hinder or prevent the propagation of game or food fish, or when fish are in danger of perishing. Such removal shall be effected by such means and under such regulations as the state game and fish commissioner may provide. So much of such money realized from the sale of fish so removed may be used by the state game and fish commissioner in continuing the work of removal, and all surplus money must be turned into the game protection fund. The Missouri fish commission may take or cause to be taken under the supervision of the state game and fish commissioner any fish from public waters in any manner, at any time, for any purpose connected with the fish culture or with scientific observation."
I. The sole determinative question is the presence of sufficient probative facts in the record to uphold the verdict of guilty. It involves the construction of certain statutes appertaining to fish in the public waters of the State. We gather from the body of what is commonly called the Purpose of game-and-fish statutes the design to propagate and Statutes. preserve food and game fish for the benefit and edification of the public. It is plain from the statutes that the State has asserted title to fish for the public good, releasing title, however, at certain and proper designated seasons to such of the public as through effort and skill and by lawful means and manner reduce the fish to actual possession. The reduction to possession other than as a true sportsman according to rules laid down by the statutes is proscribed. The hog of the stream is denounced by a code of ethics which he must either obey or subject himself to the consequences. These rules besides affording fish a sporting chance and an opportunity to propagate tend to preserve to the residents of this State the advantage of exercise, diversion and food.
The purpose of the game and fish statutes is to propagate and preserve such fish as benefit mankind. It follows that the State by enacting prohibitory statutes has adopted the policy of fostering reproduction of game and food fish. In furtherance of its policy the State has declared such fish as in the judgment of the commissioner hinder or prevent the propagation of food or game fish may be taken from the public waters. Inasmuch as the State can only act through representatives, it has properly assigned the care and propagation of fish to the commissioner.
When different sections of the statutes bear on a subject, it is a rule of construction that such sections must be harmonized if possible. Section 5616 provides that no person shall place any dynamite in the waters of this State whereby any fish may be killed, injured or destroyed, and no person by any such means shall kill, catch or take any fish from said waters. Section 5615 proscribes the use of dynamite in any of the waters of this State except by special permission and under the supervision of the State Game-and-Fish Commissioner and only for mining or mechanical purposes or to recover the bodies of persons. While these two sections seem to be comprehensive, we construe them as applicable only to those acting in a private capacity. Reading these two sections in connection with Section 5652, that construction is confirmed. With the avowed purpose on the part of the State to propagate and maintain game and food fish for the benefit of the public, the Game-and-Fish Commissioner is empowered to take at such time and in such manner from the public waters of this State fish which in his judgment hinder or prevent the propagation of game or food fish. He Power of is further empowered to remove such fish by such Commissioner. means and under such regulations as he may provide. His judgment is paramount. This section gives him plenary authority and discretion as to the means to be used. It is evident from a reading of Section 5622 and the evidence that gar hinder and prevent the propagation of game and food fish. By the letter authorizing the use of dynamite in the water hole in question, the commissioner declared and exercised his judgment as he was empowered to do. Given the right to take fish in such manner and by such means as he thought best, we think the statutes contemplate the use of dynamite in furtherance of the purpose of the statutes. Given the power to take outlaw fish, the power included the right to take them by whatever means the commissioner exercising his honest judgment thought expedient. Acting upon information received from his deputy, his judgment was that it was in the interest of the propagation of game and food fish to dynamite the particular water hole infested with gar. That game or food fish were killed in carrying out the purpose of the statutes is beside the question. If the commissioner's judgment dictated that the dynamiting of the water hole fostered the propagation of game and food fish, the killing of game and food fish in the interest of the propagation of the species was merely incidental. This is accentuated by the departmental construction placed upon the statutes that to propagate food and game fish, the public waters of the State may be dynamited to kill fish which hinder or prevent the propagation of game and food fish. While such construction is only persuasive, still where the construction comports with the policy and the salutary purpose of the law and is promulgated in the interest of the propagation and preservation of game and food fish, it is entitled to some weight. We think both the letter and the spirit of the law authorize the use of dynamite in destroying certain fish when according to his sincere judgment the State Game-and-Fish Commissioner thinks that such fish hinder or prevent the propagation of game or food fish.
It follows that the judgment is reversed and the defendant is discharged. Higbee and Henwood, CC., concur.
The foregoing opinion by DAVIS, C., is adopted as the opinion of the court. All of the judges concur, except Walker, J., who dissents.