
    The State of Ohio v. Evans.
    
      Fish and game — Killing muskrats during closed season — Section 1398, General Code — Exception favoring muskrat farms — Enclosed lands constitute a farm, when — Purpose not changed by lease to club for duck shooting — Primary and inherent use controls over secondary and incidental use — Statutory construction — Departmental interpretation followed by courts, when.
    
    1. A large tract of swamp land which the owner has fitted at great expense as a place for breeding and raising muskrats for profit, by constructing dykes and canals, and erecting pumping machinery for use in maintaining the water at the same level, is, when devoted to the purpose for which it is made fit, a muskrat farm.
    2. Swamp land, when so fitted and used, does not cease to be used exclusively for breeding and raising muskrats, within the meaning of Section 1398 of the General Code, as amended 110 Ohio Laws, p. 285, by the fact that it is leased to a shooting club under a lease which restricts its use by the lessee to the shooting of wild ducks by members of the club during the season when such birds may be lawfully killed.
    3. The words “used exclusively for the breeding and raising of * * * muskrat,” as found in Section 1398, General Code, .as amended 110 Ohio Laws, p. 285, have reference to the primary and inherent use, and not to a mere secondary and incidental use, which does not interfere with the exclusive use of the land for breeding and raising muskrat.
    4. The division of fish and game of the department of agriculture having held for a long time that the land involved came within the exception in the statute, that interpretation should be followed, unless judicial discretion makes it imperative to construe the statute otherwise.
    (Decided October 24, 1925.)
    Error: Court of Appeals for Ottawa county.
    
      
      Mr. Don Bell, prosecuting attorney, for plaintiff in error.
    
      Messrs. True, Crawford & True, for defendant in error.
   Richards, J.

The defendant in error was convicted and sentenced before a justice of the peace on a charge of unlawfully killing muskrats in the latter part of March, 1924. Error was prosecuted to the court of common pleas, and that court reversed the judgment of conviction. This proceeding in error is brought to secure a reversal of the judgment of the court of common pleas.

The prosecution was under Section 1398, General Code, as amended in 110 Ohio Laws, 285, which was in force at the time of the alleged offense. That section enacts that the open season for muskrats shall be only from the 15th day of November to the 1st day of March, both inclusive, and contains the following provision:

“Nothing in this section shall be construed as prohibiting a person from pursuing and killing, at any time, except on Sunday, fur bearing animals which are injuring his property, or which have become a nuisance, or prohibit the owner of a farm or enclosure used exclusively for the breeding and raising of raccoon, skunk, mink, fox, muskrat or opossum therein, from taking or killing such animals, or any of them at any time. ’ ’

The trapping of muskrats at the time charged was not controverted by the accused, but it is claimed on his behalf that the act came within the exception quoted, and was, therefore, not in violation of the statute. It is insisted in his behalf that he was, at the time, an employe of one John N. Magee, who, it is claimed, was the owner of a farm and inelosnre used exclusively for the breeding and raising of muskrats, and that the muskrats were trapped on said premises.

The material facts in the case are not controverted. They show that Magee was, at the time, and had been for many years, the owner of a tract of about 3,000 acres of swamp land situated largely in Ottawa county, and devoted to the breeding and raising of muskrats. Whether this land was devoted exclusively to the breeding and raising of muskrats, within the meaning of the statute, is the question for the determination of the court. The evidence discloses that Magee had expended something like $175,000 in fitting the farm for that purpose, having constructed about 17 miles of dykes and canals, which surround, or nearly surround, the entire tract of land, and having erected pumping machinery for pumping great quantities of water into the marsh at the dry season of the year, often running the pumps to capacity for the entire 24 hours in the day, that capacity being 1,000 barrels per minute. The evidence shows that it is necessary to maintain the water at substantially a given height in order to make the premises desirable as a habitation for muskrats and to conserve their food. The defendant contends that these premises are inclosed by the canals and dykes, but it is not claimed that the muskrats cannot, if they choose, readily swim across the canals and travel over or through the dykes; it being claimed that the statute does not require such an inclosure as shall be impassable to the animals. It appears that from this large investment he has received from pelts sold an annual income ranging from $3;750 to about $38,000, and that the number of muskrats caught has varied from 5,600 up to nearly 10,000 annually.

The bill of exceptions contains much interesting testimony relating to the habits and characteristics of muskrats, and from this testimony it appears that they construct domeshaped houses or cabins, composed of reeds and rushes mixed with clay or other earth, which they inhabit in the winter time. These cabins have a large chamber above the level of the water, and are frequently made of cattails, which they cut and drag to the point at which the cabins are being constructed. Indeed, the evidence discloses that their architectural skill is nearly, if not quite, equal to that of the beaver. They are very prolific, producing ordinarily six to ten young at a birth, and often breed from three to six times in a season, the first two litters sometimes producing young during the same season. The evidence discloses clearly that the land was fitted at great expense as a place for breeding and raising muskrats, and may, in every sense of the word, be denominated a muskrat farm within the definition contained in Webster’s dictionary, which is broad enough to include a tract of land devoted to the raising of domestic or other animals, like a chicken farm or a fox farm. We have no difficulty in arriving at the conclusion that Magee was the owner of a farm or inclosure used for the breeding and raising of muskrats, but it is insisted that it was not used exclusively for that purpose.

The evidence which it is claimed shows that the muskrat farm was not used exclusively for the purpose of breeding and raising muskrats consists of a lease of the premises from Magee to a shooting club, which permits the members of that club to shoot wild ducks on the premises during the season when such birds may be lawfully killed. This lease provides for the payment of an annual rental to Magee of $5,000 for the privilege named. It is difficult to see how the use of the canals for punting boats used in duck hunting, and the shooting of ducks, as they rise from the canals and lagoons, can be inconsistent with the use of the premises for breeding and raising muskrats. Little light can be obtained from adjudicated cases construing the words “used exclusively,” as so much depends upon the context of the statute where the words appear. It is said in State ex rel. Spillers v. Johnston, 214 Mo., 657, 113 S. W., 1083, 21 L. R. A. (N. S.), 171, where the statute contained the words “used exclusively for schools,” that the words “exclusively used” have reference to the primary and inherent use as over against a mere secondary and incidental use, and that, if the incidental use does not interrupt the exclusive operation of the building for school purposes, but dovetails into, or rounds out, that use, the use may be said to be an exclusive school use. For all practical purposes, permitting the use of the premises for duck hunting, during the brief season when such hunting is made lawful, in nowise interferes with the breeding and raising of muskrats, but rather dovetails into the use of the premises for that purpose, and the rights given by the lease for hunting ducks do not prevent the premises from still being, within the language of the statute, “a farm or inclosure used exclusively for the breeding and raising of * * * muskrat.”

The bill of exceptions contains evidence showing that the division of fish and game of the department of agriculture had, for a long time prior to the arrest of Evans, been construing the statute under review as not including Magee’s land, even though duck hunting was permitted on the premises. This fact must be given attention in interpreting the statute. In the opinion of the court in Industrial Commission v. Brown, 92 Ohio St., 309, 110 N. E., 774, L. R. A., 1916B, 1277, this language is found:

“Administrative interpretation of a given law, while not conclusive, is, if long continued, to be reckoned with most seriously and is not to be disregarded and set aside unless judicial construction makes it imperative so to do.”

To the same effect are State ex rel. Kaiser, Solicitor, v. Akins, Auditor, 18 C. C., 349, 357, 10 C. D., 321; United States v. Healey, 160 U. S., 136, 16 S. Ct., 247, 40 L. Ed., 369.

In construing the statute, it must not be overlooked that it is a criminal statute, and must be construed most favorably to the accused.

Evans was an employe of Magee trapping muskrats for a share of the catch, and the exemption provided by the statute for the owner of the farm is also applicable to him.

The judgment reversing the conviction is correct, and should be affirmed.

Judgment affirmed.

Williams and Young, JJ., concur.  