Miller v. City of Town & Country

• Court: Missouri Court of Appeals
• Writing for the Court: PER CURIAM
• Citation: Miller v. City of Town & Country, 62 S.W.3d 431 (Mo. App. 2001)
• Decision Date: 28 August 2001
• Docket Number: ED78815
• Parties: Daniel Miller, Appellant, v. City of Town and Country, Respondent. ED78815 Missouri Court of Appeals Eastern District 0

Daniel Miller, Appellant v City of Town and Country, Respondent

ED78815

Missouri Court of Appeals Eastern District

08/28/2001

Appeal From: Circuit Court of St. Louis County, Hon. Kenneth M. Romines

Counsel for Appellant: Steven W. Garrett

Counsel for Respondent: Thomas J. Prebil

Opinion Summary:

Daniel Miller sued the city of Town and Country requesting injunctive relief and a judgment declaring void an ordinance that required persons seeking to hunt or trap on government lands within that city to first obtain permission from the government owning the property. Miller argued the ordinance is inconsistent with Missouri's constitutional grant of authority to the Conservation Commission. Because of the ordinance's alleged invalidity he sought damages under 42 U.S.C. section 1983, claiming the city violated his Fourteenth Amendment rights under the U.S. Constitution. The court dismissed Miller's petition for failure to state a claim upon which relief can be granted.

Division Two holds: (1) The Town and Country ordinance does not violate the constitutional delegation of authority to the Conservation Commission to control, manage, restore, conserve and regulate the bird, fish, game, forestry and wildlife resources of the state; (2) the ordinance is a valid exercise of the city's police powers in that it seeks to safeguard the life and health of its citizens; and (3) the ordinance is neither inconsistent with nor pre-empted by the Wildlife Code.

AFFIRMED. Ahrens, P.J., and Crandall, Jr., J., concur.

James R. Dowd

Daniel Miller and four others sued the city of Town and Country requesting injunctive relief and a judgment declaring void an ordinance that required persons seeking to hunt or trap on government lands within that city to first obtain permission from the government owning the property.¹ Miller claims that the ordinance is inconsistent with the Missouri Constitution and seeks damages under 42 U.S.C. section 1983, claiming the city violated his Fourteenth Amendment rights under the U.S. Constitution. The trial court dismissed Miller's petition for failure to state a claim upon which relief can be granted. Miller appeals. We affirm.

On May 12, 1997 the Town and Country Board of Aldermen adopted Ordinance No. 2078. This ordinance prohibited hunting and trapping on city, county, state and federal property and rights-of-way without permission of the owner. The preamble to the ordinance reads:

WHEREAS, the City of Town and Country is concerned that hunting or trapping on public property and/or public rights-of-way are hazardous to pedestrian, passersby, children, pets and wildlife

WHEREAS, the City of Town and Country acknowledges the authority of the State of Missouri through its Department of Conservation to regulate hunting and trapping of wildlife.

The ordinance itself reads, in relevant part:

(a) It shall be unlawful for any person to commit, or attempt to commit, the following acts on any City, County, State or Federal property, or rights-of-ways:(1) to hunt or kill any wildlife, including all animals, reptiles and birds;

(2) to trap, by any means, any wildlife, including all animals, reptiles and birds.***

(c) Any person who possesses the required hunting and/or trapping permit issued by the State of Missouri and who is not in violation of the terms and conditions of that permit and who also possesses the written permission of the owner of the city, county, state or federal property, or right-of-way, to hunt or trap on said property and who is otherwise not in violation of any state statute, county ordinance, or city ordinance shall not be deemed to be in violation of this section.

Because this is an appeal from a grant of the defendant's motion to dismiss for failure to state a claim, we accept as true all well-pled allegations in the plaintiff's petition. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993). According to his petition, Miller is a former president of the Missouri Trappers Association. He has trapped in Missouri and inside the city limits of Town and Country for more than thirty years. After Town and Country passed ordinance 2078, Miller requested permission from the city to trap on public property. Because Town and Country never responded to his request, Miller refrained from trapping within the city during the 1997 and 1998 trapping seasons and now claims economic damages.

On November 16, 1998, Miller filed a petition seeking a temporary restraining order prohibiting the city from enforcing ordinance 2078, preliminary and permanent injunctions against the same, a judgment declaring the ordinance void, and damages pursuant to 42 U.S.C. section 1983. On November 19, 1998, the trial court issued a temporary restraining order preventing the city from enforcing ordinance 2078 until a hearing on the preliminary injunction, which was scheduled for January 15, 1999. That hearing was never held. After the case was placed and removed from the dismissal docket three times, Town and Country filed a motion to dismiss Miller's petition for failure to state a claim. The trial court granted that motion and entered judgment dismissing Miller's suit on October 27, 2000. Miller appeals.

Miller makes essentially three arguments to support his claim that ordinance 2078 is invalid under Missouri law: (1) that the Conservation Commission is vested with exclusive authority to regulate hunting, trapping and fishing; (2) that the city does not possess the necessary police power to pass an ordinance requiring hunters and trappers to obtain permission from government owners of land and rights-of-way; and (3) that Town and Country's ordinance is preempted by the Wildlife Code.

In support of his argument that the Conservation Commission has exclusive jurisdiction over all aspects of hunting, trapping and fishing Miller cites to Article IV, section 40(a) of the Missouri Constitution, which in relevant part, states:

The control, management, restoration, conservation and regulation of the bird, fish, game, forestry and all wildlife resources of the state, including hatcheries, sanctuaries, refuges, reservations and all other property owned, acquired or used for such purposes and the acquisition and establishment thereof, and the administration of all laws pertaining thereto, shall be vested in a conservation commission consisting of four members appointed by the governor . . .

(emphasis added). The Missouri General Assembly enacted legislation to carry out that constitutional mandate in what is now chapter 252 of the Missouri Revised Statutes. That chapter creates a Department of Conservation to be headed by the Conservation Commission. All the powers, duties and functions of the Conservation Commission have been transferred to the Department of Conservation by virtue of section 252.002.2. Section 252.030 vests ownership and title in the state of Missouri to all wildlife within the confines of Missouri. The General Assembly recognized the Conservation Commission's power to prescribe rules and regulations in sections 252.020(1) and 252.040. Pursuant to its constitutional and statutory authority, the Conservation Commission promulgated its rules and regulations, creating the Wildlife Code of Missouri. Section 252.040, which enables the Department of Conservation to regulate hunting, trapping and fishing, reads:

No wildlife shall be pursued, taken, killed, possessed or disposed of except in the manner, to the extent and at the time or times permitted by such rules and regulations; and any pursuit, taking, killing, possession or disposition thereof, except as permitted by such rules and regulations, are hereby prohibited.

Miller apparently focuses on the words "all laws pertaining thereto" contained in the constitutional grant of authority to the Commission for his argument that no other governmental entity can pass any law that impacts on hunting or trapping. Miller is correct that the Commission has control over the length of the seasons for hunting, trapping and fishing on all land, public and private, within the state of Missouri. The Commission also has exclusive authority over the manner in which fish and game are taken and other important issues relating to the conservation of Missouri wildlife. But a fair reading of Article IV, section 40(a) does not lead to the conclusion that the Conservation Commission is vested with exclusive authority to regulate the location of hunting, trapping and fishing. The Missouri Constitution does not vest authority in the Conservation Commission over all land in the State of Missouri, only over "hatcheries, sanctuaries, refuges, reservations and all other property owned, acquired or used for . . ." the conservation of wildlife.

Miller's reliance on section 252.040 is similarly misplaced. Section 252.040 grants authority to regulate only the time, manner and extent of hunting and trapping; it does not grant authority to the Conservation Commission to regulate where hunting, trapping and fishing are allowed. Section 252.040 says merely that if you hunt, trap or fish, then you must do so in the manner, to the extent and during the times permitted by the rules and regulations of the Department of Conservation. It does not say that other governmental bodies are prohibited from imposing restrictions on where hunting, trapping and fishing may occur. Included in the Commission's authority to prohibit the hunting and trapping of wildlife is, of course, the power to prohibit hunting in any particular area of the state. But this is part of the Commission's authority to conserve wildlife and should not be confused with the exclusive power to regulate hunting and trapping on all land in the state. The Commission's constitutional and statutory authority does not prevent landowners from imposing conditions on the right to hunt or trap on their land.

Finally, the Department of Conservation's rules and regulations assume that the law of trespass...