Creaser v. Durant , 197 Ga. 531 ( 1944 )

1. The Code, § 45-108, as amended by the act approved February 8. 1943 (Ga. L. 1943, p. 128), makes it the duty of the State Game and Fish Commission, with the director and his authorized delegated agents, "to seize or cause to be seized, game birds, or other birds, animals, and fish caught or killed at any time in any manner, or which have been shipped, contrary to the provisions of this law," and provides that "such game or fish so seized shall be donated to some charitable institution in this State, except live birds, animals, or fish, which shall be liberated." See Ga. Code Ann., §§ 43-126, 45-142, 45-143, 45-148. The first-quoted section as amended does not offend the provisions of article 1, section 1. paragraph 3, of the constitution of Georgia (Code, § 2-103), nor the corresponding provisions of articles 5 and 14 of the amendments to the constitution of the United States (Code, §§ 1-805, 1-815).

2. Nor is the game and fish act (Ga. L. 1943, pp. 128 et seq.: Ga Code Ann., §§ 45-136 et seq.), unconstitutional for the averred reason, "That said act of 1943 aforesaid is void and unconstitutional, in that it gives to the commission created thereby the administration of the laws, including taxing regulations, the collection thereof and the spending of same, and particularly with reference to the commercial industry, its regulations, etc., but said act does not provide for representation of said industry on said commission, and therefore amounts to taxation and regulation without representation." See Fleisher v. Duncan, 195 Ga. 309 (2) (24 S.E.2d 15). The Code, § 45-512, provides: "The use of all nets except hand-drawn nets in the inside salt-water rivers, creeks, and estuaries, is hereby prohibited. The use of nets except hand-drawn nets is prohibited in the sounds of this State during the months of March. April, May, June, and July of each year. The boundaries of the sounds are as shown in bulletin 19 of the United States Geodetic Survey. Outside salt waters are defined as those waters from the outermost part of the coast line to the limit of the three-mile jurisdiction, and embrace that part of the Atlantic Ocean under the jurisdiction of this State. Inland salt waters not included in outside salt waters include all sounds, estuaries, salt-water rivers and creeks. Any person violating any of the provisions of this section shall be guilty of a misdemeanor."

No. 14808. APRIL 6, 1944. The petition alleged that within thirty days last preceding the filing of the petition on August 31, 1943, the defendants and their agents had apprehended three of petitioners' boats, engaged in fishing for shrimp, without warrant as being in violation of the statute quoted in the headnote, whereas in fact the fishing was not in the boundaries of the prohibited area, and consequently the fishing was legal; that the defendants had taken their boats to a point where the shrimp, which was of considerable value, was confiscated. The petition alleged that the statute is unconstitutional and void for the reasons set forth in the headnotes, and prayed that the defendants be restrained from molesting and interfering with the operation of the fishing boats and from confiscating any more of the shrimp belonging to petitioners. The court passed an order restraining the defendants as prayed, for the reasons stated, to which the defendants in the court below excepted. This order is as follows: "The above stated cause coming on to be heard before me on the order to show cause dated August 31, 1943, and after hearing evidence and argument of counsel it is ordered and adjudged: 1. Counsel having stated in open court that all issues raised by the pleadings in this case have been settled between the parties, except the contention of the parties made in paragraph 7 of the petition as amended, and the relief sought in the prayers added to the original petition by amendment, this leaves for determination by the court only whether or not the statute under which the defendants claim the right to seize and confiscate shrimp alleged to have been illegally caught violates the due-process clause of the constitution of the United States and of the State of Georgia. It is therefore considered, ordered and adjudged, that the defendants, and each of them, their servants, agents and employees, be restrained and enjoined from seizing or confiscating any fish, sea food or other property of the petitioners because of any contention by the defendants, or any of them, that the said fish, sea food or other property was illegally taken or caught by the said petitioners, or any of their servants, agents or employees. Other than this the temporary restraining order heretofore granted is dissolved." 1. Under the stipulation made in this case, as shown by the order of the judge, the sole question for determination is the constitutionality of the statute involved. In a situation very similar to the present one this court in the case of Price v. Hamilton, 146 Ga. 705 (2) (92 S.E. 62), held as follows: "Penal Code, § 603, which declares that any person who shall place in the waters of any river or creek a trap for catching fish, unless the main channel of such stream is left open for a space of ten feet for rivers, and one third of the channel for creeks, at low water mark, and unobstructed for the free passage of fish up and down such stream, shall be guilty of a misdemeanor, and that the sheriff of the county, upon complaint of persons in the territory of such obstruction shall have authority to break and open such obstruction that may be placed in such waters in violation of the Code section, does not offend that clause of the constitution which requires . . that no person shall be deprived of life, liberty, or property except by due process of law. Lawton v. Steele, 152 U.S. 133 (14 Sup. Ct. 499, 38 L. ed. 385)." The headnote to the opinion in the Lawton case, cited in the Price case, is as follows: "It is within the power of a State to preserve from extinction fisheries in waters within its jurisdiction, by prohibiting exhaustive methods of fishing, or the use of such destructive instruments as are likely to result in the extermination of the young as well as the mature fish. The provision in the statutes of New York, c. 591 of the laws of 1880, as amended by c. 317 of the laws of 1883, that nets set or maintained upon waters of the State, or on the shores of or islands in such waters, in violation of the statutes of the State enacted for the protection of fish, may be summarily destroyed by any person, and that it shall be the duty of certain officers to abate, remove, and forthwith destroy them, and that no action for damages shall lie or be maintained against any person for or on account of such seizure or destruction, is a lawful exercise of the police power of the State, and does not deprive the citizen of his property without due process of law, in violation of the provisions of the Constitution of the United States." It will be seen that the Supreme Court of the United States went so far as to hold that the rule would obtain even where the act provided that "no action for damages shall lie or be maintained against any person for or on account of such seizure or destruction." In the Lawton case, decided by the United States Supreme Court, the properties involved were the nets of the offending fishermen, and in that decision it was recognized that there are several cases of contrary purport. The majority opinion seems to base its holding largely on the fact that there would be small amounts involved, and that the cost of a condemnation proceeding would generally largely exhaust the value of the property destroyed and thus impair the free exercise of needful police powers. In the instant case, the impracticability of any sort of condemnation proceeding would seem to be a stronger basis for authorizing a seizure than the small amount actually involved, and the instant facts present a stronger case for the State than in either of the Federal or State cases which have been quoted from. This is true for the reason that it is well known that the deterioration of fish or game would set in very soon, and would ordinarily take place long before it would be possible to resort to any legal proceeding to determine the propriety of the seizure. This case seems plainer than the Lawton case for the additional reason that our statute does not prohibit a suit by any injured party on account of a tort committed under color of the statute, and it is the general rule that, "If a person has been injured and has suffered damage by any wrongful act committed by an officer under color of his office, he can sue such officer personally or upon his official bond, and recover the amount of the damage." Citizens Bank of Colquitt v. AmericanSurety Co., 174 Ga. 852 (2, C) (164 S.E. 817). While it is the general rule that an officer or agent abating a public nuisance in comformity with power expressly delegated by statute does not become liable for his acts in so doing, it is also the rule that where the statute defines the conditions under which such property may be summarily destroyed as a nuisance, he acts at his peril if he exceeds his authority. Rowland v. Morris,152 Ga. 842, 847 (111 S.E. 389). Accordingly, while the petitioners allege that the officer who had been committing the alleged tort was insolvent, our Code provides by § 45-141 that the director, and by § 45-142 that the supervisor, of coastal fisheries, shall each give bond in the sum of $10,000, and by § 89-418 it is provided that, "Every official bond executed under this Code is obligatory on the principal and sureties thereon . . for any breach of the condition by a deputy, although not expressed, unless otherwise provided by law . . for the use and benefit of every person who is injured, either by any wrongful act committed under color of his office or by his failure to perform, or by the improper or neglectful performance of those duties imposed by law; and it is further provided by § 89-427: "Any person who claims damages of any principal officer for the act of his deputy may at his option sue on said deputy's bond instead of on that of the principal, in the same manner as suit may be brought on the principal's bond." The basis of the authority vested in the legislature to order the summary seizure and disposition of such contraband property would seem to lie in the fact that the protection of game, fish, and wild life comes within the scope of the general police powers for the protection of the general welfare, and that the unlawful destruction of this common property, some of which protects the public against injurious insect life, and all of which affords healthful recreation to the people as well as an important factor in their food resources, constitutes a public nuisance, and therefore is outside of the range of the due-process clause of the Federal and State constitutions. While the statute in this case, just as in the Price case and the Rowland case, does not specifically make the maintenance of the prohibited enterprise a nuisance, here, as was said in the Rowland case, "it does in effect make them such." As was said in the Rowland case. "Where the particular thing, or the act sought to be abated, is made a nuisance by statute, or is characterized as such by the common law, or is such per se, and an officer is commanded by law to abate it, no notice or judicial determination is necessary as a prerequisite to its abatement." (Citing numerous authorities.)

Accordingly, on the authority of the Lawton case, and the other authorities cited, and it not appearing on the face of the petition that irreparable injury was involved in the confiscation of the shrimp, we think that the judge erred in restraining the defendants from the further enforcement of the Code, § 45-108, as amended.

Judgment reversed. All the Justices concur.