State v. Mallory

• Decision Date: 03 December 1904
• Parties: STATE v. MALLORY
• Court: Arkansas Supreme Court

83 S.W. 955

73 Ark. 236

STATE v. MALLORY

Supreme Court of Arkansas

December 3, 1904

Appeal from Crittenden Circuit Court, ALLEN HUGHES, Judge.

Affirmed.

George W. Murphy, Attorney General, S. R. Simpson, Geo. W. Williams Henry M. Armistead, and Cantrell & Loughborough, for appellant.

The act contains no exceptions, and applies alike to all nonresidents of the State. Cf., Acts 1903, 306, § 4. The property in game is in the State, and it has full power to regulate or prohibit the killing thereof. 161 U.S. 524; 2 Bl. Comm §§ 395, 410, 411; 56 Ark. 251; 29 Ind. 409; 101 Mich. 98; 103 Mass. 452; 160 Mass. 157; 97 Ill. 320; 61 Conn 144; 103 Cal. 476; 133 Ill. 649; 58 Minn. 593; 1 Halst. 71; 48 N.J.L. 90. The statute of 1903 is not unconstitutional. 94 U.S. 395; 130 N.Y. 455; 14 R. I. 398; 7 Mo.App. 524; 139 U.S. 240.

Rose, Hemingway & Rose, James P. Clarke and T. K. Riddick, for appellee.

The fourth section of the statute of April 24, 1903, has no application to the case of a landowner who hunts on his own lands, and who fishes in a lake or unnavigable river surrounded by his own lands. When a statute is susceptible to two constructions, one of which will render it unconstitutional and the other one valid, it will be presumed that the Legislature intended that construction which will render the statute valid. 56 Ark. 495; 58 Ark. 438. And in arriving at the proper construction the court will look to the entire act and the mischief intended to be remedied, and give to the words of the statute a construction which will effectuate the legislative intent and not violate the fundamental law. 24 Ark. 155; 25 Ark. 101; 37 Ark. 495; 29 Ark. 356; 32 Ark. 462, 465; 34 Ark. 363; 35 Ark. 60; 60 Ark. 129; 58 Ark. 117; 40 Ark. 431; 61 Ark. 233; 65 Ark. 529; 27 Ark. 419; 28 Ark. 203; 48 Ark. 305; Crawf. Dig., column 340. See especially, construing game statutes according to these principles; 34 A. 170; 76 Me. 80; 71 Mich. 325, s. c. 39 N.W. 1; 128 Mass. 410, s. c. 35 Am. Rep. 383; 139 Pa.St. 298, s. c. 21 A. 14; 17 Mo.App. 524; 83 N.W. 1012; 121 N.Y. 97, s. c. 24 N.E. 484. The statutes in pari materia, passed by the same session of the Legislature, afford evidence that the statute was not intended to restrict or apply to private property. Cf. Acts 1903, 82, 299, 306, 195; End. St. § 45. Further upon the proposition that the statute of 1903 was not intended to restrict or apply to rights of private property, see: 9 Can. S.Ct. 210; Ir. Rep. C. L. 143; 6 Can. S.Ct. 116; 53 N.H. 398, s. c. 16 Am. Rep. 339; 22 L. R. A. 439. If section 4 of the act of 1903 does prohibit nonresident landowners from hunting and fishing upon their own lands, it is unconstitutional. Const. U.S. Amend. XIV; Const. Ark. art. 2, § 8. Fish and game are the property of the landowner, subject only to the right of the State to regulate their taking by police regulations. Cf. 1 F. 481; 12 Pet. 436, defining "property." Cf. also: 15 Ore. 208, s. c. 3 Am. St. 153; 2 Washb. R. Prop. 632, 400; Wood, St. Fr. § 6. Further, to the point that the owner of the soil has property in the game, and as to distinction between license and easement in regard to such rights, see: 1 Dom. Civ. L. tit. 8, § 10n; 69 Mich. 488, s. c. 13 Am. St. 405; 38 L. R. A. 205; 36 Oh. St. 396; Ib. 423, s. c. 38 Am. Rep. 599; Wood, St. Fr. § 5; Ib. pp. 879, 883; Black's L. D. 405; 2 Bl. Comm. 32; 19 Ark. 35, 38; 2 Washb. R. Prop., Bk. 2, § 1, p. 270; 1 Ib. 636, 637, 400; 5 Ired. Law, 188, s. c. 42 Am. Dec. 155, 158. More particularly, upon the question of property in game and fish, see: 20 Johns. 90, s. c. 11 Am. Dec. 249; 5 Pick. 199, s. c. 16 Am. Dec. 386; 24 Me. 482; 59 N.H. 256; s. c. 47 Am. Dec. 199; 15 R. I. 35, s. c. 2 Am. St. 863; 6 Sawy. 451; Coke, Litt. 4b; 14 L. R. A. 386; 48 L. R. A. 616; 33 P. 1099; 4 Johns. 25; 17 Johns. 195, s. c. 8 Am. Dec. 382; 6 Cowen, 376; 4 Bl. Comm. 235; 5 Ired. Law, 118; s. c. 42 Am. Dec. 155, 156; 43 Ill. 447; 92 Am. Dec. 146; 5 Pick. 199, s. c. 16 Am. Dec. 386, 389; 4 Pick. 145, s. c. 16 Am. Dec. 33; 20 Johns. 90, s. c. 11 Am. Dec. 249; 3 Ired. Law, 200; 38 Am. Dec. 722; 17 Conn. 594; 10 Am. & Eng. Enc. Law (2d Ed.), 410; 75 Me. 421; 8 Gill & J. 50; 94 U.S. 391. This right to fish and hunt upon one's own land is such a "privilege or immunity" as is guaranteed to citizens of one State in another by art. IV, sec. 2, Const. U.S. 94 U.S. 395. The Legislature had no power to take away this right. Art. 2, Sec. 22, Const. Ark.; 7 Cal. 347; 40 Id. 194; 10 N.J.Eq. 211; 77 Wis. 28, s. c. 20 Am. St. 123. A profit in lands is an interest in lands, and a consequence of such interest is within the statute of frauds. 2 Gray, 302; 53 Pa.St. 201, s. c. 91 Am. Dec. 203; 33 Am. Dec. 138; 5 Sneed, 597; 9 Metc. 395, s. c. 43 Am. Dec. 399; 43 N. J. Law, 28; 6 Cal. 66; 28 Ind. 26; 5 Barb. 379; Wood. St. Fr. § 214; 1 Dev. Deeds, § 63. With the construction asked by appellant the act would be unconstitutional because it would discriminate between the citizens of this State, by denying to such of them as happened to be resident abroad temporarily the equal protection of the law. Const. U.S., Amend. No. XIV; Const. Ark., Bill of Rights, §§ 18, 21; 43 Ark. 547; 8 Wall. 180. The statute of 1903 is also violative of art. II, sec. 22, Const. Ark. Cf., applying this guaranty to riparian rights: 142 U.S. 254; 60 Conn. 278; 75 Ill. 41; 68 Mass. 444; 134 Mass. 267; 23 N.J.L. 624; 24 Ia. 336; 5; Wend. 423; 45 Neb. 798; s. c. 64 N.W. 239; 26 Wend 404; 2 Seld. 522; 35 N.Y. 454; 16 Oh. 540; 4 Brewst. 332; 24 Ia. 336; 51 Ark. 272. If the act of 1903 is to be construed to mean what it expressly states, it is unconstitutional because it prohibits a nonresident from hunting on his own lands. If this be not its meaning, it is void for uncertainty. 45 Ark. 158, 164; 3 Sumn. 279; 91 U.S. 550, s. c. 49 Am. Rep. 652; Suth, St. Const. § 261; 4 Dev. (N. C.) 110; 92 U.S. 214; 100 U.S. 82; 114 U.S. 304.

George W. Murphy, Attorney General, Cantrell & Loughborough, H. M. Armistead and Geo. W. Williams, for appellant in reply.

The State had power to pass the statute of 1903 and to prohibit the killing of game as it saw fit. 98 F. 295; 96 Tenn. 682; 142 Ill. 30: 2 Bl. Comm. 392.

James P. Clarke and Rose, Hemingway & Rose, for appellees in reply.

See further that statute does not apply to hunting and fishing on ones own land. 53 N.H. 398, s. c. 19 Am. Rep. 339; 83 N.W. 1012; 121 N.Y. 313, s. c. 24 N.E. 484; 22 A. 159; 23 Ia. 304. The right to hunt and fish on one's own land is a right in the soil. 55 A. 656.

MCCULLOCH J. HILL, C. J. dissenting.

OPINION

MCCULLOCH, J.

The General Assembly of the State enacted a statute, approved April 24, 1903, entitled "An act to protect the game and fish of the State, and provide for the appointment of game wardens," and the prosecution in this case is based on the fourth section of that act, as follows:

"Section 4. It shall be unlawful for any person who is a nonresident of the State of Arkansas to shoot, hunt, fish or trap at any season of the year." Acts 1903, c. 162, § 4.

In other sections of the act the open and closed seasons for killing certain kinds of game are declared, and penalties for violations thereof are prescribed; the exportation of game or fish out of the State is prohibited, and penalties therefor prescribed; and the sheriffs of the State are made game wardens for their respective counties, with power to make arrests and prosecute offenders against the statute.

The appellee, Mallory, was tried upon the charge of hunting in the State, being a nonresident at the time, and from a finding of not guilty by the court and judgment discharging him the State has appealed.

The case was tried below before the court sitting as a jury, by consent of parties, and upon the following agreed statement of facts:

"1. The defendant, Mallory, is a native of the State of Virginia, and a bona fide resident and citizen of the city of Memphis, and the State of Tennessee.

"2. That he is the owner in fee of a large body of land in the County of Crittenden, State of Arkansas, by successive deeds, the title thereto originating by a grant from the State, on which he has continuously carried on planting and farming operations for many years prior to this date; and in the prosecution of his said farming operations he has had occasion to make frequent visits to said land.

"3. That on said tract of land there is a pond, or non-meandered lake, surrounded entirely by the land of the defendant, without outlet or inlet except at times of overflow; in which body of water fish are to be found and may be taken therefrom by ordinary methods.

"4. That on said tract of land squirrels and other game are to be found.

"5. That for many years the defendant has been in the habit of hunting for game on said lands and taking fish from said waters, both by himself and those who had his permission so to do; and that the right to kill said game and to take such fish is valuable, and adds to the value of the lands.

"6. That on the 18th day of June, 1903, the defendant engaged in hunting on said lands for squirrels.

"7. That on the 18th day of June, 1903, the defendant engaged in fishing in the said waters above described, and took therefrom by means of hook and line fish found therein."

It is contended here, on the part of the State, that the wild game and fish in this State are its absolute property, and that it may lawfully prohibit the taking of game and fish by all nonresidents, and that the act in question is a valid prohibition against nonresidents owning lands in the State hunting or fishing thereon.

The appellee insists, on the other hand, among other things, that his right to take game and fish while on his own lands is a valuable property right which inheres by reason of his ownership of the...