Schakel v. State, 4200
| Decision Date | 27 August 1973 |
| Docket Number | No. 4200,4200 |
| Citation | 513 P.2d 412 |
| Parties | Karl W. SCHAKEL, a/k/a Karl Schakel, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
John E. Stanfield, Smith, Stanfield & Mendicino, Laramie, for appellant.
Charence A. Brimmer, Atty. Gen., Donald H. Hall, Sp. Asst. Atty. Gen., Cheyenne, for appellee.
Before PARKER, C. J., and McEWAN, GUTHRIE, and McINTYRE, JJ.
This appeal is from a judgment against the appellant, Finding him guilty of violating § 23-54, W.S.1957. 1 The sole question raised is the constitutionality of that section.
'* * * Any person convicted of guiding or hunting contrary to the provisions of this section or of violating or permitting the violation of any of the game and fish laws of the state while acting as a guide, shall be fined not less than twenty-five dollars ($25.00) nor more than one hundred dollars ($100.00) or imprisoned in the county jail for not less than thirty (30) days nor more than three (3) months and it shall be mandatory on the part of the commission to revoke said resident guiding permit and refuse to issue a further permit for the succeeding year.'
Schakel, who had purchased a nonresident deer license, was arrested on October 6, 1972, while hunting deer on National Forest lands without a guide. In all other particulars he was complying with the regulations as they govern hunting. Schakel was a resident of Colorado, although he owned substantial properties in Wyoming and had owned property here for some years. He was well acquainted with this area.
Schakel moved to dismiss the original complaint in justice of the peace court upon the basis of the unconstitutionality of this statute. This motion was overruled, and when no other evidence was submitted in his defense the court entered its finding of guilty and assessed a fine of $100 and $4 in costs. Upon appeal to the district court Schakel again raised the question of the constitutionality thereof and introduced his testimony and that of Dewey Henderson, Deputy Supervisor of the Wyoming Game and Fish Commission for the district covering Albany, Platte, Goshen, Laramie, and the eastern half of Carbon Counties.
Although other constitutional questions were raised in the motion, appellant argues and relies only upon the Fourteenth Amendment and Art. 4, § 2, Art. 1, § 8, and Art. 6 of the Constitution of the United States, and Art. 21, § 26 of the Wyoming Constitution.
The State suggests that this matter is moot because § 23-54 has been repealed in its entirety and replaced with ch. 249, § 3, S.L. of Wyoming, 1973. This is not moot because of the judgment heretofore entered herein and the effect of our general savings clause, § 8-21, W.S.1957. The test is as set out in Belondon v. State, Wyo., 379 P.2d 828, 829, and cases cited therein, which recognized that a judgment is moot when it cannot be carried into effect-unlike this judgment. This appeal is in no particular changed or modified by such repeal and the amended statute, which was not before the trial court nor is it before us. We will not consider the provisions thereof as they do not apply herein. There might be some inference drawn that the legislature recognized certain weaknesses in this statute by the inclusion of all big game or trophy animals, which now include antelope, and the inclusion of wilderness areas in such enactment.
The State contends that Schakel has no constitutional right herein which has been infringed upon or denied. This position is based upon two premises, i. e., that the State being the owner of the wildlife is free to attach any such conditions it desires, and that a hunting license is a mere boon or privilege with the apparent inference there is no limit upon the power to attach conditions thereto. We have heretofore held that the validity of game and fish laws is subject to examination under the limitations of police power, Cross v. State, Wyo., 370 P.2d 371, 374, 93 A.L.R.2d 1357.
The State, conceding that proper classification is essential to the constitutionality of the statute, suggests that because this law applies equally to all nonresidents and appellant was not treated any differently than other nonresidents, this is not discriminatory. This does not end judicial inquiry but still leaves a burden upon the court to decide if the classifications created by the statute are proper in accomplishing their purpose under the equal protection clause, McLaughlin v. State of Florida, 379 U.S. 184, 85 S.Ct. 283, 288, 13 L.Ed.2d 222, on remand, Fla., 172 So.2d 460, and Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 778, 13 L.Ed.2d 675, on remand, Tex., 389 S.W.2d 945. The State cannot discriminate against citizens of other states merely because of their different citizenship, Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 1162, 92 L.Ed. 1460, rehearing denied, 335 U.S. 837, 69 S.Ct. 12, 93 L.Ed. 389.
This law must be viewed as having been exercised under the general police power and in furtherance of the preservation, nurture, and management of the wildlife of the State, and that the State holds as a trustee rather than as owner of such wildlife. We have so held insofar as the waters of this State are concerned under our constitutional provision declaring Waters to be the property of the State, Merrill v. Bishop, 74 Wyo. 298, 287 P.2d 620, 625, and Lake De Smet Reservoir Company v. Kaufmann, 75 Wyo. 87, 292 P.2d 482, 486. We think this most persuasive in face of the fact that the ownership theory as it affects wildlife is merely statutory. This trust relationship would give the State the power and the duty to preserve, protect, and nurture the wild game-not an arbitrary power to make discriminatory laws affecting the hunting thereof.
We have heretofore noted that police power is not unlimited but that it is subject to the limitations of due process, State v. Langley, 53 Wyo. 332, 84 P.2d 767, 770, and Cross v. State, supra. In the case of Bulova Watch Company v. Zale Jewelry Company, Wyo., 371 P.2d 409, 417, while recognizing the large scope of police power, we clearly delineated certain necessary requirements for its validity:
'* * * the means adopted for its exercise must be reasonable and designed to accomplish the end in view; that the purposes for which the...
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