Wooddell, Conserv. Commr. v. Harder , 52 Ohio App. 4 ( 1935 )

In this case the legal question is raised by a petition filed by the defendant in error, Oren C. Harder, in the Common Pleas Court of Licking county, Ohio, and the motion filed thereto by the plaintiff in error, both seeking the declaration of the court as to the true construction of paragraph b of Section 1396 of the General Code of Ohio.

The cause was heard in the Common Pleas Court on such legal question, no evidence being adduced at the hearing. The same contention is made in this court as was made in the court below to the effect that under the provisions of the paragraph and section above mentioned, the construction and validity of which was involved, the inhibition against any person having in his possession at one time more than five hares or rabbits related to dealers, as well as to hunters or any other person. The court below overruled the motion of the plaintiff in error and declared the true construction of the statute to be, in effect, that dealers might have in their possession at one time more than five hares or rabbits in open season, and that the provisions of the statute did not apply to dealers, as such.

The exact language of Section 1396 (b), which provides for the limit or number of animals, etc., reads in part as follows:

"A person may take in one day and have in his possession at one time, not more than five hares or rabbits except as provided in this section," etc.

It will be noted that the part of the statute just quoted has reference to not only a person taking or killing in one day, but also to a person having in possession at one time.

We are of the opinion that this refers to the person who takes or kills, and does not refer to the dealer or other person who may have possession. The reading of paragraph b, including the conjunction, and noting the punctuation, makes to our mind a clear and distinct statement of the intention of the Legislature.

Passing to paragraph c, under the same section of the General Code, referring to sales, we find that "Hares and rabbits may be bought or sold, during the open season only," which is a further indication of what the Legislature had in mind when this statute was enacted. Any other construction of this statute would seem to us absurd, and would defeat the real purpose of the law and prevent many people from the pleasure of having served to them rabbit or hare meat, if so narrow a construction is to be placed upon the law. To construe this statute as urged by plaintiff in error would operate in such manner that no individual would be permitted to have more than five rabbits in his home, or elsewhere, to entertain his friends to a rabbit feast; nor under this construction would a church, a lodge, or any restaurant, hotel or eating house be permitted to serve rabbit meat where the occasion would require more than five rabbits.

We are of the opinion that the construction and interpretation given by the court below was and is correct, and the judgment of the Common Pleas Court will therefore be, and the same is, hereby affirmed.

Judgment affirmed.

MONTGOMERY, J., and SHERICK, J., concur.