Strong v. Bostick, 53649

• Decision Date: 22 September 1982
• Docket Number: No. 53649,53649
• Parties: Lon STRONG, Executive Director of the Mississippi Department of Wildlife Conservation; State of Mississippi Department of Wildlife Conservation v. John BOSTICK, David Sparks, Tommy Cross, Davey Hunt, William Yates, Ronnie White, W.M. Jackson, Sammy Montgomery, Byron Bennefield, David Ray Williams, Leroy Hall, Russell Crum, Neal Stroupe, Bobby Trainum, Stevie Ewing, Trelis Petree, J.W. Moore, Donald Maples, Charles Hines, Charles Green, Jack V. Pickin, W.A. Stanfield, Frank Stubblefield and Paul Stubblefield.
• Court: Mississippi Supreme Court

Page 1356

420 So.2d 1356

Lon STRONG, Executive Director of the Mississippi Department

of Wildlife Conservation; State of Mississippi

Department of Wildlife Conservation v. John BOSTICK, David Sparks, Tommy Cross, Davey Hunt, William

Yates, Ronnie White, W.M. Jackson, Sammy Montgomery, Byron

Bennefield, David Ray Williams, Leroy Hall, Russell Crum,

Neal Stroupe, Bobby Trainum, Stevie Ewing, Trelis Petree,

J.W. Moore, Donald Maples, Charles Hines, Charles Green,

Jack V. Pickin, W.A. Stanfield, Frank Stubblefield and Paul

Stubblefield.

No. 53649.

Supreme Court of Mississippi.

Sept. 22, 1982.

Rehearing Denied Nov. 10, 1982.

Bill Allain, Atty. Gen. by Stephen J. Kirchmayr, Sp. Asst. Atty. Gen., Jackson, for appellants.

J.B. Garretty, Corinth, for appellees.

Before WALKER, P.J., and BROOM and ROY NOBLE LEE, JJ.

ROY NOBLE LEE, Justice, for the Court:

The Mississippi Commission on Wildlife Conservation [Commission] promulgated and adopted a regulation (recommendation) at its May 22, 1981, meeting, which established the 1981-82 "Deer Gun Seasons" and therein precluded the use of dogs as an aid for hunting deer in certain areas of the state, particularly in north Mississippi.

John Bostick and twenty-three (23) other persons filed a petition for writ of certiorari in the Circuit Court of the Second Judicial District of Hinds County, Honorable Charles Barber, presiding, contending that the State of Mississippi Department of Wildlife Conservation [Department] be commanded to send up to the court all records, proceedings and minutes of the Commission concerning the establishment and promulgation of the said regulation, and, upon the hearing, that the court declare the regulation to be null and void insofar as it made illegal the hunting of deer with the aid of dogs in the areas prohibited by the regulation. Pertinent allegations of the petition for writ of certiorari follow:

V.

The Mississippi legislature has, by statute, set the seasons during which deer may be hunted and taken, and has prescribed the manner and means for such hunting and taking, and has not delegated the power to modify or change the said statutes except in an emergency or under urgent circumstances, and then only to the extent of closing or shortening such season.

VI.

The said regulation purports to make the act of hunting deer with the aid of a dog a criminal offense which may be punished by fine and/or imprisonment.

VII.

The commission has, by the adoption of such regulation, declared to be illegal that which the legislature has declared to be legal.

VIII.

Further, the said regulation is arbitrary, capricious, discriminatory and not based upon substantial evidence. The said regulation is overly broad, not based upon any exception authorized by law, and discriminates against the plaintiffs and others similarly situated, in favor of other classes of deer hunters and other sections of the state.

The lower court granted the petition for writ of certiorari and held that the regulation prohibiting the use of dogs as a hunting aid in those areas of the state designated therein during the period December 19, 1981, through January 16, 1982, was void and should be rescinded and revoked for the following reasons:

II.

The Mississippi Department of Wildlife Conservation, an administrative agency of the State of Mississippi, failed to make any findings of fact in regard to the regulation in controversy.

III.

That the Court is of the opinion, based upon the record before it, that there is no substantial evidence to justify said regulation.

IV.

For that reason, it is not necessary, at this time, to reach the question as to whether or not the Mississippi Department of Wildlife Conservation has the authority to declare illegal the use of dogs as a hunting aid during the regular deer season, and defers ruling on that point, and as to whether or not the regulation was arbitrary, capricious and discriminatory.

Appellant raises several questions on this appeal, among them (1) that a demurrer should have been sustained, (2) that the wrong party was sued since the Department has no authority to adopt rules and regulations, and (3) that the proper party is the Commission which has authority to adopt rules and regulations and did adopt the regulation in controversy. We do not consider all the contentions presented in appellant's brief, but only three (3) questions which are essential to the disposition of the case.

I.

Are the questions moot because the period during which hunting deer with dogs was prohibited has expired?

Appellees comprise twenty-four (24) individuals residing in eleven (11) counties covered by the regulation. Seventeen (17) counties in north Mississippi, and Hinds County are affected by the regulation. There are no petitioners from the other seven (7) counties. They contend that the question is moot, since the hunting season and period, December 19, 1981, through January 18, 1982, has passed, and they have filed a motion to dismiss the appeal on that ground, and cite McDaniel v. Hurt, 88 Miss. 769, 41 So. 381 (1906) as authority that an appeal will not be entertained where no actual controversy is involved and a reversal would do no good. Appellees also argue that they have no desire to be burdened with the time and expense of an appeal on a moot question. Such argument finds no sympathy here.

That the questions involved in this case are of great public interest cannot be disputed. The record consists of five (5) volumes, most of which contain petitions and letters of interested citizens for or against hunting deer with dogs. The parties and the public are entitled to know whether or not the Department and Commission have the authority to promulgate and enforce regulations such as the one now before the Court, although the lower court declined to address that question. ¹ If this Court did not address the questions on the ground of being moot, the matter would never be resolved. Each year (since 1946) the Commission (formerly Mississippi State Game and Fish Commission) has met in May and, among other things, considers or sets certain hunting seasons and adopts regulations for hunting, including deer hunting. On every such occasion appellees, or other persons, might be successful in prohibiting the enforcement of these regulations and, after the periods involved had expired, contend that the questions become moot. Thus, there would never be a resolution of the issues. In Sartin v. Barlow, 196 Miss. 159, 16 So.2d 372 (1944), the Court said:

While it is well established in this state, as well as elsewhere, that as a general rule an appeal will be dismissed when no useful purpose could be accomplished by entertaining it, when so far as concerns any practical ends to be served the decision upon the legal questions involved would be merely academic, it has, on the other hand, been broadly stated that the rule will not be applied when the question or questions involved are matters affecting the public interest. 3 Am.Jur., p. 310. That statement is made more accurate, however, by the further statement that there is an exception to the general rule as respects moot cases, when the question concerns a matter of such a nature that it would be distinctly detrimental to the public interest that there should be a failure by the dismissal to declare and enforce a rule for future conduct. See, text and authorities 4 C.J.S. Appeal and Error Sec. 1354, pp. 1945-1947, note 24, and 38 C.J., p. 949, note 66.... [196 Miss. at 196-70, 16 So.2d at 376].

We think that the doctrine of "capable of repetition yet evading review" which has been enunciated by the United States Supreme Court beginning in 1911 with Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911), is sound jurisprudence. In Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975), that Court stated the doctrine is limited to the situation where the following elements combine:

(1) The challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and

(2) There was a reasonable expectation that the same complaining party would be subject to the same action again. [423 U.S. at 149, 96 S.Ct. at 349, 46 L.Ed.2d at 353].

We think that the elements set forth in Weinstein are present in the case sub judice, and we adopt the doctrine of "capable of repetition yet evading review" and hold that the questions here are not moot.

II.

Did the Commission have the authority to promulgate the regulation and was it valid and enforceable?

On July 1, 1979, the State Game and Fish Commission became the Mississippi Commission on Wildlife Conservation which has exercised the duties and responsibilities of the Game and Fish Commission through the Bureau of Fisheries and Wildlife of the Mississippi Department of Wildlife Conservation. The powers and duties of the Commission are stated in Mississippi Code Annotated Section 49-1-29 (Supp.1981), which comprises sixteen (16) subsections and consumes three (3) pages. For brevity, only the first two paragraphs are set forth:

The commission is hereby authorized to make such rules and regulations, inaugurate such studies and surveys, and establish such services as it may deem necessary to carry out the provisions and purposes of this chapter. Any violation of any of the provisions of this chapter or of any rules or regulations promulgated by the commission shall constitute a misdemeanor and be punished as hereinafter provided.

The commission shall also have authority:

(a) To close or shorten the open season as prescribed by law in cases of urgent emergency on any species of game birds, game or fur-bearing animals, reptiles, fish or amphibians, in any specified locality or localities, when it shall find after investigation and public hearing that such action is reasonably necessary to secure the perpetuation of any species of game birds, game or fur-bearing animals,...