Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
Complaint was brought against defendant in the municipal court to recover a penalty for violation of the State Fish and Game Code (1955) and also of N.J.S.A. 23:4-44, in that he unlawfully had in his possession "while in the woods or fields a missile in which the buckshot was held together or strung." Judgment went in defendant's favor, and on appeal to the County Court the same result was reached after a trial de novo. The State appeals.
There can be no dispute about the facts. A fish and game warden and his deputy found defendant hunting deer
during the December 1955 open season in the woods or fields of Medford Township, Burlington County. They examined his shotgun and extracted two shells therefrom, one containing controlled shot, i.e. , shot which had been strung or joined together, and the other buckshot. Defendant also had in his possession other shells, some containing controlled shot and the others buckshot. Defendant professed not to know that some of the shells contained controlled shot and stated that if he had known, he would not have used them. At the warden's request he read and signed a hunter's statement in which he admitted hunting deer with controlled buckshot and that he had such a shell in his gun and possession when apprehended.
N.J.S.A. 23:4-44 in part provides:
"Unless otherwise prescribed by the State Fish and Game Code, no person engaged in hunting for wild deer shall use or carry a rifle of any kind or description, or any firearm or shotgun with a smaller caliber than twelve gauge or load such firearm or shotgun with a bullet or other missile larger than that commonly known as buckshot, or have in possession in the woods or fields during the open season for killing deer any missile except buckshot or have any missile larger than number four shot in possession in the woods or fields at any time other than during the open season for killing deer; * * *."
Sections 23:4-44 and 23:4-46 of the Fish and Game Code (1955), which defendant is charged with having violated, provides:
"From December 12 to December 17, it shall be illegal to use any rifle or any firearm of any kind of a smaller caliber than 12 gauge, or to have in possession any firearm missile except buckshot, which cannot be strung, cut or joined in any manner, or to hunt between 5 P.M. and 7 A.M., or to hunt with dog."
In finding defendant not guilty the County Court held in effect that N.J.S.A. 23:4-44 did not prohibit the possession of controlled shot. The statute, said the court, "provides for the size only and not for the type of the particular size." Under the circumstances, the Fish and Game Code provision exceeded the authority delegated by the Legislature and was void and of no effect.
The County Court was in error. In reorganizing the Executive Branch of the State Government pursuant to the new Constitution of 1947, Art. V, sec. IV, par. 1, the 1948 Legislature established the Department of Conservation and Economic Development, one of whose divisions was the Division of Fish and Game, with its Fish and Game Council. L. 1948, c. 448, §§ 1, 25; N.J.S.A. 13:1 B -1, 23. By section 32 of the 1948 act, N.J.S.A. 13:1 B -30, the Legislature provided:
"For the purpose of providing an adequate and flexible system of protection * * * and conservation of * * * game animals, the council [Fish and Game Council] is hereby authorized and empowered to determine under what circumstances, when and in what localities, by what means and in what amounts and numbers such * * * game animals * * * may be pursued, taken, killed, or had in possession so as to maintain an adequate and proper supply thereof, and may * * * adopt and from time to time amend and repeal such appropriate and reasonable regulations concerning the same, * * * penalties for the violation of which are prescribed by certain of the ...