State v. Johnson

AILSHIE, C. J.

The defendants were jointly informed against and charged with the crime of conspiracy.

It was alleged that the defendants presented to the state veterinarian for allowance certain claims on the bounty fund, claiming a bounty for the killing and destruction of certain animals, and that these claims were fictitious, fraudulent and false. Proofs were submitted in support of the allegations of the information, but upon request of counsel for the defendants the trial court advised the jury to return a verdict in favor of the defendants, on the ground that the state livestock sanitary board and veterinary surgeon had no power or authority to allow claims for bounties for killing predatory animals, and that the only authority they had to pay for the killing of such animals was by employing hunters and trappers as authorized by see. 1197 of the Rev. Codes. Defendants were acquitted and the state has appealed.

The only question presented for our consideration is “as to whether or not under the provisions of secs. 1197 and 1198 of the Rev. Codes, the livestock sanitary board and state veterinarian have the authority to provide for the allowance of bounties for the killing of predatory animals.” It is quite clear to us that the board has no such authority. Secs. 1197 and 1198 of the Rev. Codes, known as the predatory animal act or livestock sanitary act, provide as follows:

Sec. 1197. “It is hereby made the duty of the sanitary board to exercise a general supervision over the subject of the killing and destruction of wolves, coyotes, wildcats and such other wild animals as are in the habit of preying upon and destroying sheep, calves, colts, pigs, poultry and other domestic animals and fowls and wild game, and to devise and put into operation such methods and means as will best secure and attain the object of exterminating such wild, destructive and pestiferous animals, and to this end they are hereby authorized and empowered to employ one or more experienced, competent and skilful hunters and trappers, as they may deem necessary, in each or any inspection district of the state; whose duty it shall be to work constantly and diligently with guns, traps, poison and any and every practicable means and methods, to procure and bring about the destruction of as many of such predatory animals as possible.”

Sec. 1198. “The hunters employed in accordance with the preceding section shall each receive such compensation as may be agreed upon beforehand, not exceeding three dollars and fifty cents per day, and their employment shall always be liable to be discontinued at any time, at the pleasure of the board, and it shall be the duty of each and all of them, at all times, to work at such localities and along such plans of operation as the board may, from time to time, direct, and the board is hereby empowered and authorized to purchase old or undersized and cheap horses and other animals to be killed and used as bait for the purpose of poisoning the pestiferous animals hereinbefore mentioned, as well as all necessary poisons to be used in connection therewith, and also such traps and ammunition as shall be necessary or useful for the purposes aforesaid: Provided, that the said trappers and hunters must use their own guns; and provided, further, that the board shall never expend a greater sum of money in any one year than thirty-five thousand dollars, and whenever that amount has been expended in the year, then and thereafter any and all further expenditures for the purposes of this article shall terminate and cease.”

See. 1156 authorizes the state veterinarian to act in conjunction with the livestock sanitary board in the enforcement of the act.

It will be seen from an examination of the foregoing provisions of the statute that it is made “the duty of the sanitary board to exercise a general supervision over the subject of the killing and destruction of wolves, coyotes, wildcats and such other wild animals as are in the habit of preying upon and destroying sheep .... and to devise and put into operation such methods and means as will best secure and attain the object of exterminating such wild animals .... and to this end they are hereby authorized and empowered to employ one or more experienced, competent and skilful hunters and trappers, as they may deem necessary, in each or any inspection district of the state.”

Now, while the statute vests the general supervision of the subject in the board and authorizes them to devise means and point out methods of carrying on the work, the statute specifically designates the agency through which the work shall be accomplished, namely, through hunters and trappers to be employed by the board. If it had been the intention of the legislature to authorize the payment of bounties, they would undoubtedly have so provided in the statute, as had been prescribed in previous statutes in force in both territorial times and during statehood. Evidently the legislature did not intend to authorize the payment of bounties. Previous experiences under such law had proven unsatisfactory and had opened the way to a great deal of fraud which had been practiced upon the several counties. The legislature, therefore, created a livestock sanitary board and vested it with the power and authority to employ hunters, and gave them absolute control and supervision over such employees and the power to direct and prescribe the means and methods such employees should use in carrying on the work. Not only this, but by sec. 1199 of the statute certain restrictions are laid upon hunters and trappers who may be employed by the board, and for a violation thereof or a failure to observe such restrictions such employees may be deemed guilty of a misdemeanor and punished accordingly. The restrictions of sec. 1199 would evidently not apply to mere bounty claimants and those who are not working in the employ of the state board acting under the authority of sec. 1197. Again, the moment the board converts this statute into a bounty statute and begins paying bounties, it opens the doors to the perpetration of the very frauds which are charged in this action and which the legislature evidently intended to guard against.

It is suggested that the board cannot accomplish anything by employing hunters and trappers, for the reason that they spend their time in their own work or do nothing and still claim their pay and that no results will be accomplished. That may be true, but it would seem that the board might be able to employ honest men for this kind of work as well as at anything else. However that may be, if the statute is unwise or impracticable, relief must be sought through the legislature. Neither the board, nor the courts, have any right to alter or amend the statute.

The trial court properly advised the jury to acquit the defendants, and the judgment should be affirmed, and it is so ordered.

Sullivan, J., and Walters, District Judge, concur.