Powell v. Daily
| Decision Date | 08 January 1986 |
| Docket Number | No. 85-81,85-81 |
| Citation | 712 P.2d 356 |
| Parties | Calvin POWELL, Petitioner (Plaintiff), v. O.R. "Bud" DAILY, Frances Osborn, Ed P. Moriarity, Gene Harriet, Alice Hays, Denzel L. Coffey, and Dennis Daly, constituting the Wyoming Game and Fish Commission; and W. Donald Dexter, Director of the Wyoming Game and Fish Department, Respondents (Defendants). |
| Court | Wyoming Supreme Court |
John B. Rogers, Cheyenne, for petitioner.
A.G. McClintock, Atty. Gen., Lawrence J. Wolfe, Sr. Asst. Atty. Gen., and Marion Before THOMAS, C.J., and ROSE, * ROONEY, ** BROWN and CARDINE, JJ.
Yoder, Asst. Atty. Gen., Cheyenne, for respondents.
This case is presented to us through the certification of a constitutional issue from the District Court of the First Judicial District in Wyoming. The question presented is whether § 23-2-402(a)(iii), W.S.1977, violates the Privileges and Immunities Clause of the United States Constitution. Because the challenged statute burdens a fundamental right, and because the degree of discrimination does not bear a close relation to any of the State's asserted reasons for the discriminatory treatment, we hold that § 23-2-402(a)(iii) impermissibly infringes upon the privileges and immunities of the citizens of states other than Wyoming.
Petitioner Calvin Powell resides in Idaho Falls, Idaho. Powell applied to the Wyoming Game and Fish Commission for a guide license so that he could guide hunters and fishermen in Wyoming. Powell stated in his application that he had 30 years of hunting and fishing experience in Idaho, Montana, and Wyoming, and four years of hunting experience on the private ranches in Wyoming where he would be working as a guide.
The game and fish officer in Laramie County rejected Powell's application because Powell was not a resident of the state of Wyoming. Powell appealed this rejection to the Wyoming Game and Fish Commission (Commission) requesting a "waiver" of the residency requirement of § 23-2-402(a)(iii).
Section 23-2-402(a), W.S.1977, states:
The Commission refused to "waive" the statutory requirement and, relying upon our decision in Belco Petroleum Corporation v. State Board of Equalization, Wyo., 587 P.2d 204 (1978), refrained from passing upon the constitutional questions Powell attempted to raise concerning the statute.
Powell filed a petition for review in district court, which resulted in the court's upholding the Commission's refusal to consider the constitutional questions involved. Powell then filed a declaratory-judgment action in the same court seeking to have the court hold the residency requirement of § 23-2-402(a)(iii) to be void, and to order the Commission to disregard the requirement in acting upon his application. The district court certified the constitutional question involved to this court, after stipulation of the parties, pursuant to §§ 1-13-101 through 1-13-107, W.S.1977, and Rule 52(c), W.R.C.P.
The question to be answered is:
"Whether W.S. 23-2-402(a)(iii) which requires an applicant as a Game and Fish Guide to be a resident of the State of Wyoming for a period of one (1) year is contrary to constitutional right, power, or immunity (Article I, Sections 2 and 4 of the Wyoming Constitution and Article IV, Section 2 and Amendment XIV of the United States Constitution) in that it infringes upon the applicant's rights of national citizenship and effectively restricts his right to interstate travel in pursuance of and in furtherance of his right to earn a living in his chosen field."
Powell claims that the statutory scheme which requires a guide to be a resident of Wyoming for not less than one year 1 restricts his fundamental constitutional right to pursue his chosen means of livelihood, establishes a discriminatory scheme which does not bear a close relation to a valid interest of the State, and relies upon a durational residency requirement. Thus, Powell contends that the statute is fatally deficient.
The State, on the other hand, maintains that "guiding" is not a fundamental right, but is instead merely a recreational privilege and that restricting that privilege to residents is a valid exercise of the State's police power. The State also urges that because protection of wildlife lies peculiarly within the ambit of the State's police power, we must give the legislature great latitude in determining what means are appropriate for wildlife protection.
PRIVILEGES AND IMMUNITIES CLAUSE ANALYSIS
Article IV, § 2 of the United States Constitution provides in relevant part:
"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
This court has recently dealt with another challenge to a state enactment under the Privileges and Immunities Clause in State v. Antonich, Wyo., 694 P.2d 60, 61-62 (1985).
In State v. Antonich, supra, the statute before us was the Wyoming Preference Act of 1971, §§ 16-6-201 through 16-6-206, W.S.1977 (October 1982 Replacement), which required contractors to employ available qualified Wyoming laborers for public-works projects in preference to nonresident laborers. The State conceded, in State v. Antonich, supra, that the act burdened a fundamental right. 694 P.2d at 62. Here, however, the State claims that guiding, contrary to construction work, is not a fundamental right but is "merely a recreational privilege." We cannot agree with the State's conclusion.
"[T]he pursuit of a common calling is one of the most fundamental of those privileges protected by the [Privileges and Immunities] Clause." Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 105 S.Ct. 1272, 1277 n. 9, 84 L.Ed.2d 205 (1985). The clause "has long been held to apply to States' attempts to discriminate against nonresidents who seek to ply their trade interstate." Id. at 1281 (Rehnquist, J., dissenting). The Supreme Court has repeatedly found that " 'one of the privileges which the Clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State.' " Id. at 1276, quoting Toomer v. Witsell, 334 U.S. 385, 396, 68 S.Ct. 1156, 1162, 92 L.Ed. 1460 (1948). All of these statements make clear that pursuing a common calling, plying a trade, and doing business in another state are privileges protected by the clause.
The State maintains that guiding is not within any of the above activities but is, instead, a recreation. According to the State, guiding is rarely a sole means of livelihood for Wyomingites, and part-time seasonal hunting and fishing guiding may well be considered a recreational activity. The State relies on Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978), as support for this contention. In Baldwin the United States Supreme Court was confronted with the question of whether a hunting license fee seven and one-half times greater 2 for nonresidents than that charged for residents violated the Privileges and Immunities Clause. The Court stated:
" * * * [A] state's interest in its wildlife and...
To continue reading
Request your trial
-
Frank v. State By and Through Wyoming Bd. of Dental Examiners, 97-133
...which the citizens of State B enjoy." Toomer v. Witsell, 334 U.S. 385, 395, 68 S.Ct. 1156, 1162, 92 L.Ed. 1460 (1948); Powell v. Daily, 712 P.2d 356, 358 (Wyo.1986). Dr. Frank fails to identify how he was treated differently than Wyoming practitioners who are required to take the same Dr. F......
-
O'Brien v. State
...attributed to discoveries in the field of law unearthed by Baldwin, as well as the statutory amendment. The recent case of Powell v. Daily, Wyo., 712 P.2d 356 (1986), involves an entirely different question, i.e., the resident requirement for a professional guide, so we will do no more than......
-
State v. Shunneson
...omitted.) 334 U.S. at 396, 68 S.Ct. at 1162. This discrimination-because-of-nonresidency question was before us in Powell v. Daily, Wyo., 712 P.2d 356 (1986), wherein an Idaho resident applied for and was denied a license which would have enabled him to guide hunters and fishermen in Wyomin......