Majority
Headnote
1. Game Laws—Enforcement of Penalty—Complaint.The statute under which this action is instituted extends over the entire state, and is in no sense a local law. It was therefore unnecessary to recite or refer to the act in the complaint. The pleader was required only to allege facts bringing the case within the purview of the act, and this has been done. Section 1897 of the Code is inapplicable. The complaint accompanied the summons, and in such a case no reference to the statute need be indorsed upon the summons. The statute in question contains no exception within the section of the act, and the complaint therefore does not offend against the rule requiring the pleading to show that the case is not within an exception to the statute. The expression, “and is liable to a penalty,” etc., in section 39 of the act, clearly means that in addition to the criminal liability the offender subjects himself to a civil action for the recovery of the penalty prescribed. There is no such ambiguity in the language as to support the defendants’ contention. The possession of the birds at the forbidden season within the state is prima facie evidence that the possessor has violated the law, and the burden is then cast upon him of proving facts to show that the possession is legal (People v. Buffalo Fish Co., 164 N. Y. 99 , 58 N. E. 34 ), and this is as true as a rule of pleading as it is concededly true as a rule of evidence. As to the birds mentioned in counts 14 to 19 of the complaint, the claim of the defendants must be upheld. Sections 30 and 33 cannot be reconciled. Under section 30, plover and snipe have a closed season from May 1st to August 31st, and section 33 is applicable to birds for which there is no open season. In order to create an offense under section 33, it must appear not only that the birds are wild birds, but also that they are birds for which there is no open season. Therefore, if they are birds having an open season, or if there be no express provision that there shall be no open season, the taking or possession of them constitutes no offense. Courts will go far to preserve the paramount intention of the Legislature, where it is possible to do so, but here the incongruities are so serious and irreconcilable that the construction urged by the plaintiff’s counsel can be yielded to only by the court usurping legislative functions. No cause of action is set forth in these counts, and as to them the demurrer is sustained. In all other respects the demurrer is overruled.
Ordered accordingly.