State v. Jack
| Decision Date | 12 September 1975 |
| Docket Number | No. 12881,12881 |
| Citation | 539 P.2d 726,32 St.Rep. 858,167 Mont. 456 |
| Parties | STATE of Montana, Plaintiff and Appellant, v. Donald JACK, Defendant and Respondent. |
| Court | Montana Supreme Court |
Chester Lloyd Jones, County Atty., Virginia City, Clayton R. Herron, argued, Helena, for appellant.
Larry D. Whitman, argued, West Yellowstone, for respondent.
Longan & Homstrom and Vicki W. Dunaway, Billings, Vicki W. Dunaway, argued, Billings, amicus curiae.
The state of Montana appeals from an order of the district court, Madison County, granting summary judgment to defendant Donald Jack.
Donald Jack is a resident of the state of California charged with violating section 26-909, R.C.M.1947, Montana's Resident Guide Law, which provides:
'(3) The Montana fish and game commission shall have authority to waive guide requirements for holders of B-2, B-5 and B-6 licenses in special deer and antelope areas during the period B-5 and B-6 license holders may hunt.
'Guide requirements may not be waived in areas open to a general hunting season on any game animal other than deer and antelope.'
Donald Jack was convicted on November 19, 1973 and fined fifty dollars by a justice of the peace. His conviction was based on a stipulation of facts which can be summarized as:
1. Defendant Donald Jack was a non-resident of the state of Montana at the time of the offense charged.
2. At such time, in Madison County, Montana, defendant was hunting big game within a national forest.
3. That he was, at the time and place, unaccompanied by any resident guide.
4. Except as may be stated above, defendant was in compliance with all fish and game laws of the state of Montana.
Defendant's sole defense at all levels of these proceedings has taken the form of a constitutional challenge to the statute he admittedly offended. In support of this challenge he urges that the statute denies him equal protection of the laws in contravention of the Fourteenth Amendment and Article II, Section 4 of the Montana Constitution. He also contends the statute to be an undue burden on interstate commerce, contrary to the prohibition of Article I, Section 8 of the United States Constitution.
The question of whether a statute encroaches upon the protections offered by the equal protection clause depends directly on the determination of three basic issues: 1) whether the statute is a legitimate and proper exercise of governmental authority; 2) the basis of the classification and an identification of the persons covered thereunder; and 3) the proper standard of review or scope of judicial inquiry regarding the relationship between the classification and the objectives of the law.
There is no question that a state has the power to preserve and regulate its wildlife. In the nineteenth century, it was commonly held that this power derived from the common law concept of 'sovereign ownership'. Under that doctrine, the ownership of wildlife was held by the state in trust for its people. McCready v. Virginia, 94 U.S. 391, 4 Otto 391, 24 L.Ed. 248; Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793. Under more modern theory, the power has been held to lie within the purview of a state's police powers. Silz v. Hesterberg, 211 U.S. 31, 29 S.Ct. 10, 53 L.Ed. 75; Van Camp Sea Food Co. v. Dept. of Natural Resources, 9 Cir., 30 F.2d 111.
Montana recognizes both the doctrine of sovereign ownership (Rosenfeld v. Jakways, 67 Mont. 558, 216 P. 776), and the police power theory (State ex rel. Nepstad v. Danielson, 149 Mont. 438, 427 P.2d 689). We need not decide which of these doctrines should now prevail in the state of Montana. In the area of wildlife regulation, it is sufficient to state the legislature may impose such terms and conditions as it sees fit, as long as constitutional limitations are not infringed. State ex rel. Visser v. Fish and Game Comm., 150 Mont. 525, 531, 437 P.2d 373.
The next step is to determine the basis for the legislative classification and determine what persons or groups of persons are affected by it. By drawing a distinction between resident and nonresident sportsman, we find the statute directly affects at least four distinct groups of persons. First, are of course the true nonresidents who merely enter the state for the purpose of hunting. But the broad language of the law must also be construed as applying to persons living in the state for a period of time insufficient to satisfy the legal residency requirements (section 26-202.3, R.C.M.1947); to former residents of the state who still return to hunt; and to persons who own land within the state but maintain their legal residences elsewhere. Defendant is a member of this latter class, as he actually owns land in Madison County.
A hearing was held in the district court to afford the state an opportunity to present evidence regarding the purpose of the statute. On the basis of that evidence, the state contends the legislature had these objectives in mind when the statute was enacted:
1. That the safety of nonresident hunters is promoted by placing them in the company of residents who are more likely to be familiar with the local terrain and weather...
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