STATE v. RUEBUSCH, 174 Ohio St. 422 (1963)

189 N.E.2d 870

THE STATE OF OHIO, APPELLANT v. RUEBUSCH, APPELLEE.

No. 37614Supreme Court of Ohio.
Decided April 24, 1963.

County Courts — Jurisdiction — Violation of orders regulating conservation of natural resources — Wildlife Council — Rules and regulations relative to watercraft — Orders of council valid, when.

1. A County Court has jurisdiction in a criminal prosecution for the violation of a valid order of the Wildlife Council which relates to conservation. (Section 2931.02 (R) and Section 1531.02, Revised Code, applied.)

2. Rules or regulations adopted by the Wildlife Council pursuant to the second paragraph of Section 1531.06, Revised Code, cannot amount to valid orders of that council to the extent that they regulate the operation of watercraft or of matters relating thereto, unless such rules or regulations are identical to the statutory provisions in Chapter 1547 of the Revised Code or to regulations issued thereunder or unless they have been promulgated as special rules and regulations in accordance with the procedure set forth in Section 1547.61, Revised Code.

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APPEAL from the Court of Appeals for Brown County.

This action was instituted by the filing of the County Court of Brown County of affidavits charging the defendant with having seven watercraft in the waters of Grant Lake in violation of Amended Wildlife Council Order No. 169-60, Section (B), which prohibits anchoring, etc., at other than a designated public docking area and limits the authorized number of such watercraft to one per person. That portion of the order provides as follows:

“Section (B). Watercraft shall not be anchored, docked, moored, beached, tied up, or left unattended by any person on any land or water area of the Division of Wildlife named in this order for a period of time in excess of four hours unless such watercraft is anchored, docked, moored, beached, or tied up at a division designated public docking area established by the provisions of this order.

“(1) The public docking privileges established by this order shall be limited to one watercraft per person per lake. It is unlawful for any person to anchor, dock, moor, beach, tie up or leave unattended for a period in excess of four hours, more than one watercraft on any lake named in this order except as herein provided.

“(2) The provisions of this order shall not apply to concessionaires properly licensed by the Department of Natural Resources to rent watercraft to the public, or to watercraft owned by the Division of Wildlife.”

Defendant demurred to the affidavits on the ground that the court lacked jurisdiction over the subject matter of the litigation. The court overruled the demurrer and, defendant having pleaded not guilty and having waived jury trial, proceeded to try the issues involved. The defendant was found guilty and a fine assessed. He thereupon appealed to the Court of Common Pleas of Brown County which affirmed the judgment of the County Court. A further appeal was then taken to the Court of Appeals which reversed the judgments below, on the ground that the County Court had no jurisdiction with respect to such an order of the Wildlife Council. The cause is now before this court pursuant to allowance of a motion to certify the record.

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Mr. William B. Saxbe, attorney general, and Mr. Jay C. Flowers, for appellant.

Mr. Chris Rosenhoffer, for appellee.

TAFT, C.J.

The judgment of the Court of Appeals was based upon its conclusion that the County Court did not have jurisdiction over the subject matter of this prosecution. The jurisdiction sections of the Revised Code, which are applicable, are Sections 1531.18
and 2931.02 (R).

So far as pertinent, Section 1531.18 reads:

“Any judge of a County Court * * * has final jurisdiction * * * in a prosecution for violation of any section of the Revised Code or orders of the Wildlife Council relating to the taking, possession, protection, preservation, or propagation of wild animals, and has like jurisdiction in a proceeding for forfeiture of property used in violation of any such law or order. Any violation of any order of the council is unlawful.”

This statute is limited by its terms to orders “relating to the taking, possession, protection, preservation, or propagation of wild animals.” The order involved in the present case does not specifically purport to be so related. However, in view of our conclusion with respect to Section 2931.02, Revised Code, it is not necessary for us to determine whether such a relationship can be implied upon the theory that watercraft congestion in a body of water could affect the animal or plant life therein or thereabouts.

Section 2931.02 reads so far as pertinent:

“* * * Judges of County Courts have jurisdiction within their respective areas of jurisdiction in all cases of violation of any law relating to:

“* * *

“(R) Offenses arising from or growing out of the violation of conservation laws.”

Section 1531.02, Revised Code, provides in part that “a person doing anything prohibited or neglecting to do anything required by Sections 1531.01 to 1531.26, inclusive, * * * of the Revised Code, or contrary to any council order violates this section.”

Thus, a violation of a valid order of the Wildlife Council would be a violation of Section 1531.02 (a “conservation law”)

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and fall within the jurisdiction of the County Court as conferred by Section 2931.02 (R), Revised Code. See State v. Waller (1943), 44 Ohio Law Abs., 591, 69 N.E.2d 438, affirmed on other grounds (1944), 143 Ohio St. 409, 55 N.E.2d 654.

Since we are of the opinion that the County Court does have jurisdiction over the violation of a valid order of the Wildlife Council, we must consider a question which the Court of Appeals did not find it necessary to consider.

That question is whether the Wildlife Council has the power to issue an order that can be enforced by criminal prosecution if that order purports to regulate the operation of watercraft or of matters relating thereto.

Most of the statutory provisions with regard to orders of the Wildlife Council specifically recognize that they are to be related to protecting wild animals, including fish. See, for example, Sections 1531.06 (third paragraph), 1531.08, 1531.12
(C), 1531.18 and 1533.99 (J), Revised Code. The only statutory language which might provide a reasonable basis for inferring a legislative intent to confer power on the Wildlife Council to make an order such as involved in the instant case is the second paragraph of Section 1531.06 which reads:

“The council shall make such rules and regulations for protection of state owned or leased lands and waters, and property under its control of the Wildlife Council against wrongful use or occupancy as will insure the carrying out of the intent of this section and to protect such lands, waters, and property from depredations and to preserve the same from molestation, spoilation, destruction or any improper use or occupancy thereof, including authority to make rules and regulations with respect to recreational activities and for the government and use of such lands, waters, and property.”

However, the General Assembly subsequently enacted Section 1547.61, Revised Code, which reads in part:

“The provisions of Chapter 1547 * * * and of other applicable laws of this state govern the operation, equipment, numbering and all other matters relating thereto whenever any watercraft is operated on the waters of this state, conservancy district, or political subdivision of this state, or when any activity regulated by Chapter 1547 * * * takes place thereon; but

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nothing in Chapter 1547 * * * prevents the adoption of any rules, regulations, or ordinance relating to operation and equipment of vessels the provisions of which are identical to the provisions of Chapter 1547 * * * amendments thereto, or regulations issued thereunder; provided, that such ordinances shall be operative only so long as and to the extent that they continue to b identical to the provisions of Chapter 1547 * * *.

“Any department, * * * or political subdivision of this state may, at any time, but only after public notice published in a newspaper of local circulation, make formal application to th Administrator of the Division of Watercraft for special rules and regulations with reference to the operation of vessels on any waters within its territorial limits and shall set forth therein the reasons which make such special rules or regulations necessary or appropriate.

“The Division of Watercraft may make special rules and regulations with reference to the operation of watercraft on any waters within the territorial limits of any subdivision of thi state.

“* * * No license * * * in addition to those provided for hereunder shall be required by any state department * * * of this state.” (Emphasis added.)

When Section 1531.06, Revised Code, is read together with Section 1547.61, Revised Code, it is apparent that rules or regulations adopted by the Wildlife Council under the second paragraph of Section 1531.06 cannot amount to valid orders to the extent that they regulate the operation of watercraft or of matters relating thereto, unless such rules or regulations are identical to the statutory provisions in Chapter 1547 of the Revised Code or to regulations issued thereunder or unless they have been promulgated as special rules and regulations in accordance with the procedure set forth in Section 1547.61.

The alleged order of the Wildlife Council involved in the instant case is not so identical and was not so promulgated.

It follows that the judgment of the Court of Appeals must be affirmed.

Judgment affirmed.

ZIMMERMAN, MATTHIAS, O’NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.

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