Opinion
32670.
DECIDED DECEMBER 5, 1949. REHEARING DENIED DECEMBER 19, 1949.
Fishing illegally; from Savannah City Court — Judge Heery. June 7, 1949. (Application to Supreme Court for certiorari.)
Aaron Kravitch, for plaintiff in error.
Andrew J. Ryan Jr., Solicitor-General, Sylvan A. Garfunkel, contra.
1. By the act of 1943 (Ga. L. 1943, pp. 128, 133), as amended by the act of 1945 (Ga. L. 1945, pp. 404, 409), it is provided that the State Game and Fish Commission "shall have the power to adopt all rules, regulations and methods of administration necessary for the efficient operation of the Commission as therein created and established"; and also provided that "any person who shall violate any of the rules and regulations promulgated by the Commission under the authority herein granted shall be guilty of a misdemeanor." Ga. L. 1943, pp. 128, 134; Ga. L. 1945, pp. 404, 410.
( a) A rule of the State Game and Fish Commission, "proclaiming a closed season in all inland salt waters to all power-drawn nets after December 15, 1947," promulgated pursuant to the act of 1943, as amended in 1945, supra, and providing that the "use of power-drawn nets is prohibited in all inland salt waters of this State," defining such waters to include sounds, estuaries, and salt-water rivers and creeks, and providing that any person violating any of its provisions shall be guilty of a misdemeanor, is valid, and one convicted of violating the same has not been convicted contrary to law.
( b) Such regulation is not invalid because in its operation it does not apply to all localities and regions in the State.
( c) Such regulation is not invalid in that the caption reads, a closed season "for fishing in all inland salt waters to all power-drawn nets," while in the regulation itself it is set out, "the use of power-drawn nets is prohibited in all inland salt waters." Such regulation is to be reasonably considered in its entirety, and applies to dragging the net behind a motor boat in the forbidden waters.
( d) Such regulation is not invalid because thereby the State Game and Fish Commission is given discretion as to the counties and region in which the same shall be in force, by posting the regulation for thirty days at the courthouse of the county or counties in which the same shall go into effect.
2. The evidence authorized the finding that the defendant used a power-drawn net in inland salt waters in violation of the provisions of said regulations.
DECIDED DECEMBER 5, 1949. REHEARING DENIED DECEMBER 19, 1949.
On April 1, 1949, C. M. Briggs Jr. was tried and convicted in the City Court of Savannah upon an accusation charging him with having, on November 3, 1948, violated §§ 45-146,-147, and -153 of the Georgia Code, "by violating the regulations of the State Game and Fish Commission promulgated October 9, 1948, entitled `Fishing Regulations Proclaiming Closed Season for Fishing in all Inland Salt Waters to all power-drawn nets after December 15, 1947,'" providing in the body of these regulations that: "'Pursuant to the act of the General Assembly of Georgia, approved February 8, 1943, and amended March 9, 1945, creating a State Game and Fish Commission, the following rules and regulations are hereby promulgated and adopted by the Commission, to wit: Effective December 15, 1947, and continuing in force until changed by law or proclamation, the use of power-drawn nets is prohibited in all inland salt waters of this State' . . `any person violating any of the provisions of the above regulations shall be guilty of a misdemeanor,' in that the said defendant did violate the said regulation by using on the motor ship `Stardust' number 17A-862, a fishing boat of less than five tons, a net attached thereto, which net was of the approximate size of forty feet, and which was drawn by the power of said ship through the waters of Warsaw Sound, an inland salt water of Chatham County, for the purpose of fishing and shrimping."
The defendant demurred to this accusation, because the same "fails to set out any lawful criminal statute or regulation that would constitute the commission of any crime by said defendant; because there is a variance between the caption of said fishing regulation and the regulation itself in that the caption thereof proclaims a closed season for fishing, etc., while the regulation itself only prohibits the use of power-drawn nets without reference to whether said nets were being used in connection with fishing or for other purposes; because the said commission is a special body created for the purpose of regulating game and fish, and any effort on the part of said commission to regulate generally on the use of nets except in connection with fishing is not germane to said subject and is beyond the powers of the commission; and because the alleged facts of the alleged violation set out therein are in variance with the regulation itself, in that the said regulation prohibits the use of power-drawn nets whether used in connection with fishing or otherwise, whereas the facts alleged therein allege that said net was being used for the purpose of fishing and shrimping and, therefore, contrary to the provisions of the regulation itself."
The court overruled this demurrer, and to this judgment the defendant filed exceptions pendente lite, and assigns error thereon in the present bill of exceptions.
The defendant moved for a new trial on the general grounds, and by amendment added two special grounds, in which he assigned error on the charge of the court, setting out the regulations of the violation of which he was convicted, on the ground that the commission was without authority "to make penal any act of any person unless said act was in connection with fishing in the waters of said State, and it was beyond the jurisdiction of said commission to generally prohibit the use of power nets in the waters unless the use of such power nets was in connection with fishing", and "in that said regulation was illegal and contrary to the power vested" in said commission, which was limited to pass "regulations germane to either fishing or hunting, and not to legislate generally on the criminal laws of Georgia and the particular regulation that the court was seeking to give efficacy and validity to make it a misdemeanor for any person to use a power-drawn net in any inland sea waters of the State irrespective of whether the net was being used in connection with fishing or for other purposes." The defendant also assigned error on the failure of the court to limit the right of the jury to convict the defendant only where they found that the net was being used for fishing purposes, but in its charge the court instructed the jury to find the defendant guilty if he was using the net generally.
1. The court did not err in overruling the general demurrer to the accusation. The defendant's conviction is based on his alleged violation of a regulation of the State Game and Fish Commission, making it a misdemeanor to use a power-drawn net in inland salt waters. This rule is not invalid for any of the reasons assigned, and was within the statutory power conferred upon the commission.
The Game and Fish Commission is given the power to fix open and closed seasons, on a statewide, regional, or local basis, as to game and fish, and to regulate the manner and method of taking "fish, shellfish and crustaceans, by rules and regulations: Provided, that the commission shall post, at the courthouse door of the county or counties that will be affected, a complete copy of such rules or regulations certified by the chairman of the commission, and also file an additional certified copy thereof in the office of the ordinary of the county or counties affected, at least 30 days before the effective date of such rule or regulation." Ga. L. 1943, pp. 128, 132; Ga. L. 1945, pp. 404, 408. "The commission shall have power to adopt all rules, regulations and methods of administration for the efficient operation of the commission as therein created and established." Ga. L. 1943, pp. 128, 133; Ga. L. 1945, pp. 404, 409. "Any person who shall violate any of the rules and regulations promulgated by the commission under the authority herein granted shall be guilty of a misdemeanor." Ga. L. 1943, pp. 128, 134; Ga. L. 1945, p. 404.
The foregoing statute is not invalid for any of the reasons assigned by the defendant in his demurrer, in his amendment to his motion for a new trial, and in his argument before this court. It has long been the policy of the legislature to confer upon administrative bodies, such as the Public Service Commission (formerly the Railroad Commission), and similar State agencies, charged with administering parts of the State government, the power to make rules and regulations and to deal in a somewhat legislative way with matters which are quasi-legislative but predominantly administrative, in their nature. See Zuber v. Southern Ry. Co., 9 Ga. App. 539 ( 71 S.E. 937), in which it is held: "Under the constitution, the General Assembly is made the legislative body of the State, and it can not delegate its powers, but it may confer upon administrative bodies the power to make regulations and to deal in a somewhat legislative way with matters which are quasi-legislative, but which are predominately administrative in their nature." The conservation of game and fish is an important State function. The administering of our laws in this connection requires consideration of much data and detail. The commission would be unable to perform its functions with facility and, further, to attain its beneficent purpose would be awkward and the enforcement of conservation would be difficult, without the commission having the power to make rules and regulations relative to its administration and enforcement of the conservation and preservation of our wild life, the denizens of field and forest, the creatures that inhabit our streams, lakes, and waterways. Without the power to make rules and regulations for the protection of game and fish, the commission would be of little value to the State. As it is, our commission is doing a great work. Game and fish are increasing. The commission and its officers and agents are acquainted with game and fish conservation and preservation. They know best how to deal with matters of administering and enforcing the purpose of the creation of the commission. The General Assembly has wisely seen fit to empower the commission to make reasonable rules and regulations to aid in the administration and enforcement of this law, and to provide for punishment of those violating the same.
In Bohannon v. Duncan, 185 Ga. 840, 842 ( 196 S.E. 897), it is said: "The legislative department of the State, wherein the constitution has lodged all legislative authority, will not be permitted to relieve itself by the delegation thereof. It can not confer on any person or body the power to determine what the law shall be. But this constitutional inhibition does not prevent the grant of legislative authority to some administrative board . . to adopt rules, by-laws, or ordinances for its government, or to carry out a particular purpose. Thus, while it is necessary that a law, when it comes from the lawmaking power shall be complete, still there are many matters as to methods or details which the legislature may refer to some designated ministerial officer or board. Cooley's Const. Lim. 114. The constitutional prohibition, therefore, does not deny to the lawmaking body `the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within the prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply.' Schechter v. U.S. 295 U.S. 495 ( 55 Sup. Ct. 837, 79 L. ed. 1570, 97 A.L.R. 947, 957); Panama Rfg. Co. v. Ryan, 293 U.S. 388 ( 79 L.ed. 223); . . Maner v. Dykes, 55 Ga. App. 436, 438 ( 190 S.E. 189)."
The rule and regulation promulgated by the commission under the authority given to it, and here involved, was not invalid because it contained in the caption or title matter different from that expressed in the body of the rule, in violation of the State Constitution of 1945, Code § 2-1908, as follows: "No law shall pass which refers to more than one subject matter, or contains matter different from what is expressed in the title thereof." The caption or title of the regulation is sufficiently broad to cover the contents of the regulation in question. There is no material variance as between the two. See the full discussion of this question in Cady v. Jardine, 185 Ga. 9 ( 193 S.E. 869), and the citations therein. This constitutional provision was inspired by the Yazoo Fraud and embodied in our Constitution to prevent the "smuggling" of undesirable legislation, and to provide that in the future the people would have notice of the contents of proposed legislation.
Neither the statute nor the regulation pursuant thereto is invalid because not uniform in operation. The commission is given the power to select the counties wherein it is necessary to prevent the use of power-drawn nets. This is a matter of administrative policy and is within the discretion and judgment of the commission. Such regulation may be needed in one locality and not needed in another. This is for the commission to determine, and the General Assembly so empowered it under constitutional authority. Code (Ann. Supp.) § 2-3301 (now embodied in the new Constitution recently printed) reads: "There is hereby created a State Game and Fish Commission. Said Commission shall consist of one member from each Congressional District in this State, and one additional member from one of the following named counties, to wit: Chatham, Bryan, Liberty, McIntosh, Glynn, or Camden. The first members of the Commission shall consist of those in office at the time this Constitution is adopted, with terms provided by law. Thereafter, all succeeding appointments shall be made by the Governor and confirmed by the Senate for a term of seven years from the expiration of the previous term. All members of the Commission shall hold office until their successors are appointed and qualified. Vacancies in office shall be filled by appointment of the Governor and submitted to the Senate for confirmation at the next session of the General Assembly after the making of the appointment.
"The Commission shall have such powers, authority, duties, and shall receive such compensation and expenses as may be delegated or provided for by the General Assembly."
The fact that the regulation covers only certain waters or certain localities does not render it invalid. See Holcombe v. Ga. Milk Producers Confed., 188 Ga. 358 ( 3 S.E.2d 705).
Neither the act authorizing the adoption of the regulation nor the regulation itself gives to the Game and Fish Commission unlimited authority to make penal laws. It simply empowers the commission to make rules and regulations as to the administration and enforcement of the game and fish laws, looking to the conservation and preservation of game and fish, and the regulation in question does that. The use of a power-drawn net for the purpose of catching shrimp and fish may be prohibited, if the commission determines that such use tends to destroy or injure the fish and shrimp or their habitat during bedding season or otherwise. These are matters for the commission, and it may promulgate rules and regulations to aid in doing this. The regulation in question is not invalid because it prevents the dragging of a net by power through these waters, without regard to whether the person so doing is fishing or shrimping.
2. There was evidence to support the verdict of guilty. The jury were authorized to find that the defendant used a power-drawn net for the purpose of catching fish and shrimp in inland salt waters, within Chatham County, by drawing through such water a fish net, with his motor-powered and driven boat, "Stardust", in what is known as Warsaw Sound, in violation of the regulation promulgated by the Game and Fish Commission of the State, making it a misdemeanor to use a power-drawn net for fishing in "inland salt waters." There was testimony of two commission employees that they saw the defendant drawing the net through these waters with his motor boat, and the defendant did not deny this. The regulation is a valid exercise by the commission of the power conferred upon it by the General Assembly.
3. It follows that this regulation is valid, and that the delegation to the commission of the power to adopt the same was legal in every respect. It must be kept in mind that we are here dealing with the provisions of a statute passed by the General Assembly by virtue of authority granted it by our Constitution, and not with an act of that body without constitutional authority.
Applying the foregoing principles, the court did not err in overruling the defendant's demurrer to the accusation, and did not err in overruling his motion for a new trial on any of the grounds alleged.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.