HORNE et al. v. THE STATE

Supreme Court of Georgia1930-06-16No. No. 7714

170 Ga. 638

Summary · law.co

Holding. The court affirmed the conviction, holding that the indictment was sufficiently definite, that the statute delegating authority to local grand juries to implement fishing regulations does not violate separation of powers, and that the certificate of the State Board was properly admitted into evidence.

The defendants were indicted for fishing in a freshwater stream in Long County during a closed season. They challenged the indictment as vague and indefinite, arguing it failed to specify the exact location within the stream or the applicable closed season dates. The court rejected these objections, holding that naming the stream and county was sufficiently specific, and that the closed season itself is a matter of law rather than fact that must be pleaded in the indictment.

The defendants also contended that the statute authorizing the grand jury and State Board of Game and Fish to establish local fishing regulations violated the state constitutional separation of powers. The court disagreed, explaining that the General Assembly properly enacted the underlying law and merely delegated to the grand jury the authority to determine whether and when the law would take effect in their county. This delegation of discretionary implementation power did not constitute an impermissible transfer of legislative authority.

Finally, the defendants objected to the admission of the State Board's secretary's certificate documenting the grand jury's recommendation to enforce the regulation. The court upheld its admission, reasoning that public officials are presumed to perform their duties, including the required newspaper publication of the order, and such proof need not be separately established at trial.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Sufficiency of indictment specificity in fishing violation charges
Constitutionality of delegating regulatory implementation authority to grand juries
Admissibility of official certificates of grand jury recommendations
Evidentiary burden regarding publication of administrative orders

Procedural posture

The defendants appealed their conviction for illegal fishing after the trial court overruled their special and general demurrers to the indictment and admitted evidence of the grand jury's recommendation regarding the closed fishing season.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Gilbert, J.

The court did not err in overruling the special demurrers. The indictment ivas not vag-ue, nor indefinite, nor uncertain. It was not necessary that the indictment should name the particular portion of the stream where the defendants had fished. A charge in the indictment that the defendants had fished in the named fresh-water stream within Long County was suffi cient. It was not essential that the indictment should specify what was the closed season for fishing in Long County. That was a matter of law, and not of fact.

Section 23 of the act of 1925 (Ga. Laws 1925, p. 308) is not unconstitutional and void on the ground that it is violative of article 1, section 1, par. 23 (Civil Code of 1910, § 6379), of the constitution of this State, which provides “The legislative, judicial, and executive powers shall forever remain separate and distinct, and no person discharging the duties of one shall at the same time exercise the functions of either of the others, except as herein provided.” Such act does not undertake, as contended, “to confer the right on the grand jury of Long County, Georgia . . and the State Board of Game and Fish to enact a law prescribing a closed season for Long County.” The General Assembly, under its constitutional power, enacted the law, and merely conferred upon the grand jury of the county the right and power to say whether and when such law should become operative in respective counties. Mayor &c. of Brunswick v. Finney, 54 Ga. 317 (6); Murphey v. Educational Board of Burke County, 71 Ga. 856; Caldwell v. Barrett, 73 Ga. 604; Haney v. Commissioners of Bartow County, 91 Ga. 770 (18 S. E. 28); Phinizy v. Eve, 108 Ga. 360 (33 S. E. 1007); Coleman v. Board of Education of Emanuel County, 131 Ga. 643 (6) (63 S. E. 41); Southern Ry. Co. v. Melton, 133 Ga. 277, 288 (65 S. E. 665); Early County v. Baker, 137 Ga. 126 (72 S. E. 905). Other grounds of the general demurrer are mere repetitions of the grounds last stated, and are without merit.

Section 23 of the said act of 1925 provides: “Upon the recommendation of the grand jury of any county, the said Board of Game and Fish shall have the power to regulate or prohibit the taking of fish from any streams or other waters of this State during an)r month or months in which said fish in said waters commonly spawn. That when such recommendation has been made by any grand jury and a certified copy thereof prepared by the clerk of the superior court of the county in which such action is had and transmitted to the Board of Game and Fish, it shall be the duty of said board and it shall be required to immediately pass an order carrying out the recommendation of said grand jury and advertise said order in the county affected in a newspaper of general circulation therein, once a week for four weeks, and such order shall not be effective until thus advertised. That the recommendation of the grand jury as aforesaid shall specify the period of time during which said fishing shall be regulated or prohibited.” When the official certificate of the action of the grand jury has been filed in the office of the State Board of Game and Fish, it becomes an office document, and the secretary of said board is empowered to certify such to be a fact. The court did not err in admitting, over objection of movant, such certificate of the secretary of the State Board of Game and Fish, showing the action of the grand jury recommending that the act become operative in Long County.

It was not necessary to produce evidence on the trial of the case that the order of the State Board of Game and Fish had been publishefi once a week for four weeks in a newspaper of general circulation in Long County. The law presumes that all public officers will do their duty, and the duty is placed upon such board to publish their orders once a week for four weeks in a newspaper of general circulation. The reference to the publication of the action of the board was not properly a part of the certificate, but it was not harmful to the accused. There are in the certificate of the secretary of the State Board of Game and Fish what appear to be typographical errors in stating dates, but no question is raised on that account.

The evidence supports the verdict.

Judgment affirmed.

All the Justices concur.