
    POSSESSION OF ILLEGAL FISHING DEVICES.
    Common Pleas Court of Montgomery County.
    Ben Gilb, vs. State of Ohio.
    Decided, December, 1921.
    
      Fish ancl Game—Net and Line Prohibition—Venue for Violation of-—■ Charged, with Sufficient Definiteness, W7iew—Possession as Well as Use of Illegal Devices Ground for Prosecution.
    
    1. The waters of a county being made a part of the Inla.nd Pishing District of- the state, an affidavit which charges violation of the fishing laws in the county by name sufficiently locates the place of the offense, and is not open to demurrer because it does not lay the venue of the offense specifically in said Inland Pishing District.
    2. Possession of forbidden fishing devices within a short distance of a public stream renders the possessor liable to prosecution to the same extent as though he was actually using such devices within the waters themselves.
   Snediker, J.

These cases are in this court on error to the judgment of the justice of the peace of Van Burén township, where the plaintiff in error entered a plea of not guilty and was, after the hearing of the evidence, fined, in all, $275 and costs. He was before the magistrate on three charges: 'One, that he had a set net in his possession; another, that he had a seine in his possession; and, third, that he had in his possession twelve floats.

For the purpose of this opinion, we need only read and refer to one of the affidavits upon which plaintiff in error was tried in the court be-low. They are all alike as to their formal parts. We read the one which relates to the set net. It is as follows:

“Before me, D. H. Wysong, a justice of the peace in and for the county of Montgomery ancl state of Ohio, personally came L-. IT. Monbeck, who, being by me first duly sworn, deposes and says; That he is a deputy fish and game protector of the state of Ohio, and that on or about the 30th day. of April, A. D. 1921, in the counts'- of Montgomery and state of Ohio, one Ben. Gilb did unlawfully and wilfully have in his possession one set net a device for catching fish other than hook and line, bait or lure, and that such offense was committed in the presence of the undersigned deponent, and further affiant saith not, contrary to the statute in such ease made and provided and against the peace and dignity of the state of Ohio. L. IT. Monbeck, deputy fish and game protector. Sworn to before me and subscribed in my presence this 30th day of April, A. D., 1921. D. H. Wysong, justice of the peace.”

Such proceedings were had that the plaintiff in error withdrew his plea of not guilty in the court below and filed a demurrer in all three cases. This demurrer is as follows:

' ‘ Said defendant, Ben Gilb, demurs to the affidavit filed herein for the following reasons, because the facts stated therein do not constitute an offense punishable by the law of this state.”

Fftrst as to this demurrer.

The offense which the prosecuting witness intended to charge against the plaintiff in error is defined by the terms of Section 1420, of the General Code, as follows:

“No person shall draw, set, place, locate, maintain, or have in possession, a pound net, crib net, tramel net, fyke net, set net, seine, bar net, fish trap or any part thereof, throw or hand line, with more than three hooks attached thereto, or any other device for catching fish, except a line with not more than three hooks attached thereto or lure with more than three sets of three hooks each, in the inland fishing district of this state, except for taking carp, mullet, sheephead and grass pike as provided in section 32 of this act, and except as provided in sections 29 of this act, or catch or kill a fish, in such fishing district with what' are known as bob lines, trot lines, float lines, or by grabbing with the hands, or by spearing, or shooting, or with any other device other than by angling; provided, however, that in the waters of this district, except those lakes, harbors and reservoirs controlled by tjie state, a trot line may be used with not more than fifty hooks and no two hooks less than three feet apart by the owner or person having the owner’s consent in that part of the stream bordering on or running through said owner’s land.
“Each fish caught, killed, taken or had in j^ossession contrary to the provisions of this act shall constitute a separate offense. ’ ’

The fishing districts of Ohio are located by Section 1411 of the General Code in these words:

“The waters of Lake Erie, the waters of Sandusky Bay, as far west as a straight line cirawn from the mouth of Tommy Creek to Slate’s Point, and as far east as one-fourth of a mile from the mouth of the Clack Channel, and the waters of the Maumee Bay up to a point north of Toledo commonly known as Presque Isle, are in and shall be known as the Lake Erie Fishing District. All other waters over which the state of Ohio has jurisdiction, whether lakes, rivers, cheeks, or reservoirs, or whether natural or artificial, including East Harbor, West Harbor, Middle Harbor, in Ottawa county, and the waters of Ten Mile Cheek lying within this state are in and shall be known as the Inland Fishing District.”

The point made by counsel for plaintiff in error in support of his demurrer is, that the affidavit does not allege that the offense was committed in the Inland Fishing District.

The affidavit does charge the crime as having been committed in the county of Montgomery and state of Ohio. Making the charge in this way informs the plaintiff in error, (he by law being bound to know that by the provisions of Section 1411 the waters of Montgomery county aré in the Inland Fishing District,) that the affidavit complains of his violation of the law in that district. To say, in so many words, that the offense was committed in the Inland Fishing District, would be nothing more than a repetition of the averment already made. It would be surplusage. The crime is stated and the venue is laid without it. The purpose of stating specifically that the offense was committed in the “Inland Fishing District” is, of course, to make known to a defendant (and he is entitled to know), where he is charged with having committed the act, but, as we have already said, the statement here that the thing complained of was done in Montgomery county does this.

In considering this demurrer, we may also say that plaintiff in error is not entitled to complain because the affidavit does not negative the exceptions found within the provisions of Section 1421, for the reason that these can only be ascertained by' reference to other sections of the Code therein referred to, said by Judge 'Wanamaker, in the Brinkman case (97 O. S., 171):

‘1 Had the legislature intended the exceptions mentioned to be a part of the description of the offense, the presumption clearly is that it would have included them in the statute that created the offense.”

In the case of Hale v. State (58 0. S., 676-686), the Supreme Court of Ohio quotes with approval the ease of State v. Miller, (34 Conn., 522). In the last mentioned case the defendant was prosecuted under a statute which prohibited the manufacture or sale of any spirituous or intoxicating liquors ‘ ‘ except as herein provided.” The next section contained certain exceptions. It was held the exceptions need not be negatived.

In our .opinion, therefore, the court below committed no error in overruling the demurrer.

The testimony in the casé showed that this set net was in the possession of the plaintiff in error at his home, near Sulphur Grove in this county; that it was there found by the officers of the law who visited his house for the purpose of making an investigation. Plaintiff in error lived about a square and a half or two squares from the river.

At the close of the evidence of the state, counsel for plaintiff in error made a motion ‘ ‘ to dismiss the case for the reason that there is no evidence here to show that these alleged illegal devices were found in the possession of the defendant in the Inland Fishing District in the state.”

His theory in this regard was this: That only the “water's” of the two fishing districts of the state constitute such fishing districts. ’ In other words, he contended that, because plaintiff in error did not have possession of the illegal device on or in the waters, he did not by so having it violate the law.

The old section defining the fishing districts of the state, which is found at Section 38 of the act of May 9, 1908, reads as follows:

“The waters of Lake Erie, the waters of Sandusky Bay as far up as one-half mile east of the east end of Eagle Island, the waters of Portage Bay as far up as Oak Harbor bridge, and the waters of the Maumee Bay up to a point opposite Presque Isle shall be known as Lake Erie fishing district of this state. All other waters over which'the state of Ohio has jurisdiction whether lakes, rivers, creeks or reservoirs, and whether natural or artificial, including East Harbor, WTest Harbor and Middle Harbor, in Ottawa county, and the waters of Ten Mile Greek lying within this state shall be known as the inland fishing district of the state. ’ ’

The difference between this section and the present one lies iin the boundaries of the district and in the statement found in present Section 1411, that the waters referred to “are in and shall be known as:” while in the old section the language is “shall be known as.”

It is a cardinal rule of statutory construction that the words of a statute are to be construed with reference to its subject-matter and with reference to the object intended to be accomplished by the Legislature in its enactment.

The sections which we are considering are a part of the fish and game code which was passed by the Legislature of Ohio with the purpose to protect the fish and game of the state of Ohio in the respects defined in the act. It has never been contended, so far as we are able to discover, that the old section defining the districts did not include the full territory (both land and water) comprehended in the geographical boundaries of the district. The language of the present section makes any such contention more doubtful, for the reason that the law now reads “are in’’ and' “shall be known as.”

The authorities are uniform to the effect that the state has the power to regulate fisheries in public streams, and to adopt appropriate means for the preservation of fish for the benefit of the people. It has not only the right but it is also its duty to so preserve, for the benefit of the general public, the fish in its waters. This was undoubtedly the object which the Legislature had in view in this legislation, and we can not conceive that the purposes of the law would be fully subserved by such a construction as would make it exclude possession by one a block and a half or two blocks away from the waters of a district and only declare that man a violator who was in the actual use of the illegal device on or within the waters themselves. The law-making body has the same authority to prohibit the possession of these detrimental fishing appliances anywhere in the state as it has to prohibit the possession of concealed weapons, and we find that it here exercised that authority. We do not regard a strict construction of this law as requiring any such interpretation as is contended for.

This being our opinion, and the undisputed testimony showing that this plaintiff in error was in fact in possession of the illegal device or devices in this county, we find that the court below properly overruled the motion of the plaintiff in error, at the close of the evidence, to dismiss the ease.

The judgments are affirmed.  