Opinion
Opinion filed April 7, 1955.
COURTS.
Where circuit court, on certiorari from Conservation Department order confiscating a shotgun on ground that owner had been hunting illegally, found that owner had not been hunting illegally and that the statute authorizing confiscation was unconstitutional, jurisdiction of appeal was in Court of Appeals, rather than Supreme Court, under statute providing that appeals in civil cases lie to Court of Appeals except where constitutional question is only question involved (Pub. Acts 1951, c. 115, secs. 42, 45; Code, sec. 10618; Const. art. 1, sec. 17).
FROM WAYNE.HENRY C. FOUTCH, Assistant Attorney General, for plaintiff.
R.R. HAGGARD, of Waynesboro, for defendant.
Proceeding by Conservation Department to confiscate a shotgun. Owner brought certiorari and the Circuit Court, Wayne County, JOE M. INGRAM, Judge, reversed the decision, and Director of Conservation Department appealed. The Supreme Court, SWEPSTON, Justice, held that where Circuit Court found that owner had not been hunting illegally and that the statute authorizing confiscation was unconstitutional, jurisdiction of appeal was in Court of Appeals, rather than Supreme Court, under statute providing that appeals in civil cases lie to Court of Appeals except where constitutional question is only question involved.
Case transferred.
We do not have jurisdiction of this appeal and it should have been taken to the Court of Appeals for the following reasons:
The Conservation Department undertook to confiscate a shotgun belonging to Davis under Section 45, Chapter 115, Public Acts of 1951, on the alleged ground that he was violating Section 42, in that he was hunting deer with a shotgun that had multiple solid bullets in the shells.
Under the provisions of Section 45 of said Act Davis filed his petition for a hearing and same was granted by the Director, Mr. Findlay. The two Conservation officers testified but neither Davis nor another man who was involved in the same thing took the stand. The Director found against Davis. He then exercised the only remedy provided him by the statute, which is common law certiorari to the Circuit Court. When it got to the Circuit Court the Judge made two findings, one of fact and one of law. The fact-finding was in effect, that Davis was not hunting: In other words, he was not violating Section 42 of the Act. The second was that Section 45 was unconstitutional because in violation of the due process clauses of the State and Federal Constitutions and also in violation of Art. I, Sec. 17, of the State Constitution, from which the State has taken an appeal.
Chapter 9 of the Acts of 1951 amends Section 10618 of the Code so as to take the appeal in all civil cases to the Court of Appeals except where a constitutional question as to a statute or city ordinance is the only question involved in the appeal. The reason for the passage of that Act was to settle the doubt that had been in the minds of the members of the Court of Appeals about whether to take jurisdiction when there was a constitutional question involved along with other questions. Since, therefore, in this case one of the questions is that the proof does not justify a finding that Mr. Davis was hunting or violating Section 42, this appeal should have been taken to the Court of Appeals instead of to the Supreme Court.