contempt proceeding and criminal libel case, which he considered the basis of his action and the source of all of his damage. As to the other three defendants who are justices of the peace, it does not very clearly appear from the petition what the purpose of plaintiff was in joining them as defendants to the petition, but it is quite certain from the provisions of Section 13496 of the General Code that the issuing of a warrant by justice of the peace is a discretionary matter and that he can not be sued in a civil action for refusing to do so. See also as bearing on this question the case of Truesdall v. Combs, 33 0. S., 186.

In view of all of the foregoing reasons, I am of the opinion that the petition does not state a cause of action against any of the defendants therein, and that under the circumstances, and the law, that said petition can not be so amended as to state a valid cause of action against any of said defendants.

The question therefore arises as to what disposition should be made of the motion to strike the petition from the files. A motion of that character seems to be recognized by Section 11375, General Code, and the Supreme Court in the case of White v. Calhoun et al, 83 0. S., 401, held it to be the proper practice in respect to a sham answer saying it "is a power existing at common law, and is one of the powers inherent in the court to be exercised in the due and speedy administration of justice." If it is applicable to a sham answer, I can see no reason why it is not applicable to a petition of the character of the one now under consideration.

The fact that some of the defendants have filed demurrers, and others answers, can not make any difference in the disposition of this motion.

The motion will be sustained and the petition stricken from the files. The motion does not cover the supplemental petition but the court will on its own motion order it to be stricken from from the files. An exception may be noted by the plaintiff.

1921.]

Gilb v. State of Ohio.

POSSESSION OF ILLEGAL FISHING DEVICES.

Common Pleas Court of Montgomery County.

BEN GILB, VS. STATE OF OHIO.

Decided, December, 1921.

Fish and Game-Net and Line Prohibition-Venue for Violation of— Charged with Sufficient Definiteness, When-Possession as Well as Use of Illegal Devices Ground for Prosecution.

1. The waters of a county being made a part of the Inland Fishing District of the state, an affidavit which charges violation of the fishing laws in the county by name sufficiently locates the place of the offense, and is not open to demurrer because it does not lay the venue of the offense specifically in said Inland Fishing District. 2. Possession of forbidden fishing devices within a short distance of a public stream renders the possessor liable to prosecution to the same extent as though he was actually using such devices within the waters themselves.

SNEDIKER, J.

These cases are in this court on error to the judgment of the justice of the peace of Van Buren township, where the plaintiff in error entered a plea of not guilty and was, after the hearing of the evidence, fined, in all, $275 and costs. He was before the magistrate on three charges: One, that he had a set net in his possession: another, that he had a seine in his possession; and, third, that he had in his possession twelve floats.

For the purpose of this opinion, we need only read and refer to one of the affidavits upon which plaintiff in error was tried in the court below. They are all alike as to their formal parts. We read the one which relates to the set net. It is as follows:

"Before me, D. H. Wysong, a justice of the peace in and for the county of Montgomery and state of Ohio, personally came L. H. Monbeek, who, being by me first duly sworn, deposes and says; That he is a deputy fish and game protector of the state of Ohio, and that on or about the 30th day of April, A. D. 1921, in the county of Montgomery and state of Ohio, one Ben. Gilb did unlawfully and wilfully have in his possession one set net a device for catching fish other than

hook and line, bait or lure, and that such offense was committed in the presence of the undersigned deponent, and further affiant saith not, contrary to the statute in such case made and provided and against the peace and dignity of the state of Ohio. L. H. Monbeck, deputy fish and game protector. Sworn to before me and subscribed in my presence this 30th day of April, A. D., 1921. D. H. Wysong, justice of the peace.'

Such proceedings were had that the plaintiff in error withdrew his plea of not guilty in the court below and filed a demurrer in all three cases. This demurrer is as follows:

"Said defendant, Ben Gilb, demurs to the affidavit filed herein for the following reasons, because the facts stated therein do not constitute an offense punishable by the law of this state."

First as to this demurrer.

The offense which the prosecuting witness intended to charge against the plaintiff in error is defined by the terms of Section 1420, of the General Code, as follows:

"No person shall draw, set, place, locate, maintain, or have in possession, a pound net, crib net, tramel net, fyke net, set net, seine, bar net, fish trap or any part thereof, throw or hand line, with more than three hooks attached thereto, or any other device for catching fish, except a line with not more than three hooks attached thereto or lure with more than three sets of three hooks each, in the inland fishing district of this state, except for taking carp, mullet, sheephead and grass pike as provided in section 32 of this act, and except as provided in sections 29 of this act, or catch or kill a fish, in such fishing district with what are known as bob lines, trot lines, float lines, or by grabbing with the hands, or by spearing, or shooting, or with any other device other than by angling; provided, however, that in the waters of this district, except those lakes, harbors and reservoirs controlled by the state, a trot line may be used with not more than fifty hooks and no two hooks less than three feet apart by the owner or person having the owner's consent in that part of the stream bordering on or running through said owner's land.

"Each fish caught, killed. taken or had in possession contrary to the provisions of this act shall constitute a separate offense."

1921.]

Gilh v. State of Ohio.

The fishing districts of Ohio are located by Section 1411 of the General Code in these words:

"The waters of Lake Erie, the waters of Sandusky Bay, as far west as a straight line drawn from the mouth of Tommy Creek to Slate's Point, and as far east as one-fourth of a mile from the mouth of the Clack Channel, and the waters of the Maumee Bay up to a point north of Toledo commonly known as Presque Isle, are in and shall be known as the Lake Erie Fishing District. All other waters over which the state of Ohio has jurisdiction, whether lakes, rivers, creeks, or reservoirs, or whether natural or artificial, including East Harbor, West Harbor, Middle Harbor, in Ottawa county, and the waters of Ten Mile Creek lying within this state are in and shall be known as the Inland Fishing District."

The point made by counsel for plaintiff in error in support of his demurrer is, that the affidavit does not allege that the offense was committed in the Inland Fishing District.

The affidavit does charge the crime as having been committed in the county of Montgomery and state of Ohio. Making the charge in this way informs the plaintiff in error, (he by law being bound to know that by the provisions of Section 1411 the waters of Montgomery county are in the Inland Fishing District,) that the affidavit complains of his violation of the law in that district. To say, in so many words, that the offense was committed in the Inland Fishing District, would be nothing more than a repetition of the averment already made. It would be surplusage. The crime is stated and the venue is laid without it. The purpose of stating specifically that the offense was committed in the "Inland Fishing District" is, of course, to make known to a defendant (and he is entitled to know), where he is charged with having committed the act, but, as we have already said, the statement here that the thing complained of was done in Montgomery county does this.

In considering this demurrer, we may also say that plaintiff in error is not entitled to complain because the affidavit does not negative the exceptions found within the provisions of Section 1421, for the reason that these can only be ascertained by

reference to other sections of the Code therein referred to, said by Judge Wanamaker, in the Brinkman case (97 O. S., 171):

"Had the legislature intended the exceptions mentioned to be a part of the description of the offense, the presumption clearly is that it would have included them in the statute that created the offense.'

In the case of Hale v. State (58 O. S., 676-686), the Supreme Court of Ohio quotes with approval the case of State v. Miller, (34 Conn., 522). In the last mentioned case the defendant was prosecuted under a statute which prohibited the manufacture or sale of any spirituous or intoxicating liquors "except as herein provided." The next section contained certain exceptions. It was held the exceptions need not be negatived.

In our opinion, therefore, the court below committed no error in overruling the demurrer.

The testimony in the case showed that this set net was in the possession of the plaintiff in error at his home, near Sulphur Grove in this county; that it was there found by the officers of the law who visited his house for the purpose of making an investigation. Plaintiff in error lived about a square and a half or two squares from the river.

At the close of the evidence of the state, counsel for plaintiff in error made a motion "to dismiss the case for the reason that there is no evidence here to show that these alleged illegal devices were found in the possession of the defendant in the Inland Fishing District in the state."

His theory in this regard was this: That only the "waters" of the two fishing districts of the state constitute such fishing districts. In other words, he contended that, because plaintiff in error did not have possession of the illegal device on or in the waters, he did not by so having it violate the law.

The old section defining the fishing districts of the state, which is found at Section 38 of the act of May 9, 1908, reads as follows:

"The waters of Lake Erie, the waters of Sandusky Bay as far up as one-half mile east of the east end of Eagle Island, the waters of Portage Bay as far up as Oak Harbor bridge, and the waters of the Maumee Bay up to a point opposite Presque