Cawsey v. Brickey

• Decision Date: 17 December 1914
• Docket Number: 12310.
• Citation: 82 Wash. 653,144 P. 938
• Parties: CAWSEY et al. (WOODBURN et al., Interveners v. BRICKEY et al.
• Court: Washington Supreme Court

144 P. 938

82 Wash. 653

CAWSEY et al. (WOODBURN et al., Interveners v. BRICKEY et al.

No. 12310.

Supreme Court of Washington

December 17, 1914

Department 2. Appeal from Superior Court, Skagit County; J. P. Houser Judge.

Action by C. C. Cawsey and others against W. L. Brickey and others in which Robert Woodburn and others intervened. From a judgment for defendants, plaintiffs and the interveners appeal. Affirmed.

E. C Million and Kerr & McCord, all of Seattle, for appellants.

Thomas Smith, W. L. Brickey, and C. D. Beagle, all of Mt. Vernon, for respondents.

ELLIS J.

Action to enjoin the enforcement of an order creating a game preserve in Skagit county. The plaintiffs constitute a gun club, and have leased for a term of years certain lands as a shooting preserve, including lands of the interveners, and have for a long time maintained thereon a gun club, and have expended considerable sums in equipment. The defendants are the sheriff, prosecuting attorney, game warden, and the three members of the game commission, of Skagit county, appointed under the Game Code (chapter 120, Laws of 1913, p. 356 et seq.). Acting under section 4 of that law, the game commission selected certain lands as a game preserve, including the lands covered by the plaintiffs' lease as well as those owned by the interveners. The injunction was denied. The plaintiffs and interveners have appealed.

The appellants attack the law of 1913, and particularly subdivision 7, of section 4, claiming that it is unconstitutional: (1) Because the title of the act is insufficient to cover the provisions of that subdivision; (2) because that subdivision deprives the appellants of valuable property rights and privileges without due process of law, bears unequally on different persons and communities, and is class legislation; (3) because that subdivision is a delegation of legislative powers; (4) because it grants arbitrary and unlimited powers to the commission. It is also claimed that these powers were here arbitrarily exercised. We shall consider these in their order.

(1) The title of the act, so far as here material, is as follows:

'An act relating to the protection, propagation, introduction, purchase, and restoration of game birds, game animals, and game fish, creating a chief game warden and a chief deputy game warden, county game commissioners, creating the office of county game wardens, relating to licenses for hunting and fishing, fixing the season for the taking, regulating the transportation and possession of game animals, game birds and game fish.'

The mention of a given subject in the title is notice of all things germane to that subject found in the act. The title, being intended to call attention to the subject-matter of the act, need not be an index to the contents of the act. It is sufficient if it gives notice of the general scope and purpose of the act. We have so held in a multitude of cases. See State ex rel. Lindsey v. Derbyshire, 79 Wash. 227, 232, 140 P. 540, and cases there cited. The title here in question indicates the broad scope of the act as a complete game code relating to the protection, propagation, introduction, purchase, and restoration of game birds, game animals, and game fish. The creation of game preserves, such as authorized in subdivision 7 of section 4, being clearly an appropriate provision to the carrying out of the general purpose outlined in the title, it is clearly germane thereto and is covered by the title.

(2) Subdivision 7, section 4, of the act reads as follows:

'The county game commission in their respective counties shall have the power and authority by giving notice thereof by publication for three successive weeks in a newspaper published at the county seat of such county describing such lands to be set aside as a game preserve, to set aside certain parts or portions of their respective counties as game preserves wherein no game bird or game animal or game fish can be caught or killed within the boundaries thereof, for such time and so long as they may see fit and proper: Providing, however, that no game preserve or preserves so set aside by said county game commission shall consist of more than three (3) townships in any one county.' Laws of 1913, page 359.

Do these provisions tend to deprive any one of property rights or vested privileges? We think not. Under the common law of England all property right in animals ferae naturae was in the sovereign for the use and benefit of the people. The killing, taking, and use of game was subject to absolute governmental control for the common good. This absolute power to control and regulate was vested in the colonial governments as a part of the common law. It passed with the title to game to the several states as an incident of their sovereignty, and was retained by the states for the use and benefit of the people of the states, subject only to any applicable provisions of the federal Constitution. Ceer v. Connecticut, 161 U.S. 519, 527, 528, 16 S.Ct. 600, 40 L.Ed. 793; Harper v. Galloway, 58 Fla. 255, 51 So. 226, 228, 26 L. R. A. (N. S.) 794, 19 Ann. Cas. 235; State v. Snowman, 94 Me. 99, 46 A. 815, 50 L. R. A. 544, 80 Am. St. Rep. 380; Smith v. State, 155 Ind. 611, 58 N.E. 1044, 51 L. R. A. 404; Ex parte Maier, 103 Cal. 476, 37 P. 402, 42 Am. St. Rep. 129; Magner v. People, 97 Ill. 320; State v. Hume, 52 Or. 1, 95 P. 808; Sherwood v. Stephens, 13 Idaho, 399, 90 P. 345; Hornbeke v. White, 20 Colo. App. 13, 76 P. 926; Freund, Police Power, § 418. There is no private right in the citizen to take fish or game, except as either expressly given or inferentially suffered by the state. State v. Tice, 69 Wash. 403, 125 P. 168, 41 L. R. A. (N. S.) 469. Section 21 of the Game Code provides:

'No person shall at any time or in any manner acquire any property in, or subject to his dominion or control, any of the game birds, game animals, or game fish, or any parts thereof, of the game birds, game animals or game fish herein mentioned, but they shall always and under all circumstances be and remain the property of the state.' Laws of 1913, p. 365.

This is but declaratory of the common law. Whatever special or qualified rights or, more correctly speaking, privileges, a landowner may have as to game, while it is on his own land, though protected by the laws of trespass as against other persons, have no protection, because they have no existence, as against the state. Since the title to game is in the state for the common good, the state's right to control, regulate, or prohibit the taking of game wheresoever found and on whosesoever land is an inherent incident of the police power of the state. Tiedeman's Limitations of Police Power, § 121f. It may be exercised ad libitum so long as the regulation or prohibition bears equally on all persons similarly situated with reference to the subject-matter and purpose to be served by the regulation. Portland Fish Co. v. Benson, 56 Or. 147, 108 P. 122.

Does the act here in question bear unequally on persons similarly situated so as to be obnoxious to the constitutional inhibition against class legislation? We think not. It is the universality of the operation of a law on all persons of the state similarly situated with reference to the subject-matter that determines its validity as a general and uniform law, not the extent of territory in which it operates. That its operation may not be at all times coextensive with the territorial limits of the state is usually an immaterial circumstance. State ex rel. Lindsey v. Derbyshire, 79 Wash. 227, 237, 140 P. 540. The owner of land which from its location and character is peculiarly suited for a game preserve is not situated similarly to other landowners with reference to the subject-matter and purpose of a law creating a preserve. The subject-matter and purpose is protection and preservation of game. It is so declared in the title of the act. One whose land is thus peculiarly suited to meet those purposes obviously occupies a different relation to the purpose of the law from that occupied by one whose land is not so suited. When, therefore, the state authorizes the setting apart of his land for a game preserve and deprives him and all others of the privilege of taking game thereon, the law operates equally on all persons similarly situated, and is a proper exercise of the police power.

In this phase the case here is not distinguishable from Hayes v. Territory, 2 Wash. T. 286, 5 P. 927, where a territorial law restricted hunting in only five counties. Obviously owners of land in those counties were subjected to restricted hunting on their own land, while owners of land in other counties could hunt on their own land without restriction. The law was assailed as invalid on the ground that it granted special privileges. The Territorial Supreme Court, through Greene, C.J., tersely and soundly disposed of the question as follows:

'The game law in question restricted hunting in five counties only. It is contended that, for this reason, it is inconsistent with that inhibition in the Organic Act, which forbids the Legislature from granting special privileges. But the provisions of this game law fall without distinction upon all inhabitants of the territory. All are forbidden to hunt at certain seasons within the counties named. There is no special privilege, unless it be in favor of the brute life of the specified area, or those of human kind who are so happy as to be alive at the hunting season.'

In both the Hayes Case and this case the circumscribed geographical operation of the law makes the difference in the relation of those owning land within and those owning land without the circumscribed area. Barring this difference, the law is absolutely uniform in its operation on all persons....