Winslow v. Fleischner

• Citation: 223 P. 922,110 Or. 554
• Parties: WINSLOW v. FLEISCHNER ET AL.
• Decision Date: 11 March 1924
• Court: Supreme Court of Oregon

223 P. 922

110 Or. 554

WINSLOW v. FLEISCHNER ET AL.

Supreme Court of Oregon

March 11, 1924

Department 1.

Appeal from Circuit Court, Marion County; George G. Bingham, Judge.

Suit by W. C. Winslow against I. N. Fleischner and others. Decree for plaintiff, and defendants appeal. Affirmed.

This is a suit instituted for the purpose of enjoining the enforcement of an order made by five of the defendants who constitute the State Game Commission of Oregon. The defendants John H. Carson and George Neuner, Jr., were prosecuting attorneys for Marion and Douglas counties respectively, at the time the order was made. The defendants appeared by the Attorney General and filed a motion to strike out parts of the complaint and a demurrer at the same time. The demurrer to the complaint was overruled by the Circuit Court and the defendants refusing to plead further, a decree was rendered in accordance with the prayer of the complaint. The defendants appealed from this decree. The salient allegations of the complaint are as follows:

"V. That throughout the state of Oregon, and particularly throughout Marion and Douglas counties, Or., there is now and has been for many years last past wild game known as deer with horns, and that for several years last past said deer have been increasing in quantity in said districts and throughout the state of Oregon, and have become common game animals and are hunted for sport and for the purpose of procuring meat supplies.

"VI. That the laws of the state of Oregon define the open season for hunting said game animals in Marion and Douglas counties, Or., as being from August 20 each year to October 31 thereof. * * *

"VIII. That throughout the state of Oregon, and particularly throughout Marion and Douglas counties in the Willamette Valley and Southern Oregon, it has become an established common custom for people to take their vacations from their usual vocations at least by the end of August of each year and unless plaintiff and others similarly situated are permitted to to hunt said deer within the month of August they will be denied the privilege and right of hunting said deer at all.

"IX. That plaintiff herein, as well as many other people in the state of Oregon similarly situated, make annual trips to the mountains, and plaintiff particularly in Marion and Douglas counties, Or., for the purpose of hunting said deer for sport and for meat supplies, and that the meat usually obtained by plaintiff from hunting said deer is used for family consumption, and the same constitutes one of the material sources of food supply to said plaintiff; and the right to hunt said deer is and has been at all times herein mentioned a material property right to plaintiff with intrinsic value.

"X. That plaintiff herein, relying upon the law as defined by the Legislature of the state of Oregon, has purchased a license to hunt said deer for the year 1923 and has paid the usual fee therefor, which said license fee expressly authorizes, licenses and empowers plaintiff to take and kill two of said deer, and plaintiff has entered into contractual relations with a packer, by the terms of which plaintiff has obligated himself to pay said packer for packing plaintiff and others into the mountains and the premises hereinafter referred to, for the purpose of hunting and taking said deer, and said contract is a binding contract and a binding obligation upon the part of plaintiff herein, by the terms of which plaintiff has agreed to pay said packer for said services in packing said plaintiff into the mountains and to said premises for said purpose in August, 1923.

"XI. That defendants mentioned above as the Game Commission of the State of Oregon, subsequent to the time that plaintiff had entered into said contract with said packer, and subsequent to the time that plaintiff had purchased said license, construing section 8 of chapter 66 of the Laws of the Legislative Assembly of 1921 as conferring upon said Commission general legislative powers, not for the purpose of introducing a new species of game or game animals and not for the purpose of keeping said deer from being exterminated, but acting wholly upon their judgment as to when said season should be opened and when the same should be closed therefor, without making any findings whatsoever showing a necessity and acting wholly arbitrarily, have attempted to change the open season for hunting said deer and have pretended to enter an order, a copy of which is hereto attached, marked 'Exhibit A,' and made a part hereof, making the open season for hunting said deer September 10 to October 31 of each year, and said Game Commission are now taking steps to publish said order and give notice thereof, pursuant to the terms of said section and threaten to and will, unless restrained, attempt to put such order into effect and prosecute any and all persons who hunt for or take said deer with horns between August 20 and September 10 of such years.

"XII. That plaintiff herein is the owner of real property in Marion county, Or., upon which said deer are to be found and hunted in August, and plaintiff is the lessee for hunting purposes of certain real property in Douglas county, Or., upon which said deer are to be found and may be hunted in August; and that plaintiff herein, acting pursuant to his license, so procured as aforesaid, and in keeping with his contract, as above set forth and alleged and in conformity with the laws of the state of Oregon as enacted by the Legislature of the State of Oregon, intends to hunt and take said deer with horns in Marion and Douglas counties, Or., on said premises commencing August 20, 1923 for the purpose of procuring said meat supplies for plaintiff and plaintiff's said family, and said Game Commission, as well as said district attorneys, referred to above as defendants, threaten and will, unless restrained by this court, attempt to prosecute plaintiff herein for hunting for and taking said game animals between August 20 and September 10, 1923, and will attempt to continually prosecute plaintiff for hunting upon said premises and taking said deer with horns between said dates."

The prayer is for a permanent injunction restraining the State Game Commission from putting said order into effect, and the defendants Carson and Neuner, from prosecuting the plaintiff in case he violates the order of the Commission. The order is attached to the complaint as an exhibit, made a part of the complaint, and in so far as this decision is concerned is as follows:

"Exhibit A.

"Notice.

"To whom it May Concern:

"Whereas the State Game Commission of the State of Oregon is authorized under section 8, chapter 66, General Laws of Oregon, 1921, to close any open season or open any closed season in any county or district of the state of Oregon for the hunting, shooting, killing and possession of game animals and game birds:

"Therefore, notice is hereby given that the State Game Commission of the State of Oregon has made and entered of record and does hereby issue the following:

"Order.

"That the open season as defined in section 10, chapter 153, of the General Laws of Oregon, 1921, for hunting, shooting, killing, taking and having in possession, alive or dead, the following named game animals and game birds, respectively, in the state of Oregon, shall be as follows, to wit:

"The open season for deer with horns throughout the entire state shall be in and is hereby declared to be from September 10 to October 31 of each year, both dates inclusive. * * *

"Notice is also hereby given that the changes in the open seasons made by this order in no wise affect the bag limits or other regulations provided by law respecting the hunting, shooting, killing, taking or having in possession, alive or dead, of such game animals and game birds.

"Any and all persons hunting for, shooting, killing, taking or having in possession, alive or dead, any deer, silver gray squirrel, Chinese pheasant, bobwhite quail, mountain or plumed quail, California valley quail, blue or sooty grouse, ruffed grouse or native pheasant, sage hens, Hungarian partridges or prairie chickens in the state of Oregon, in violation of this order, will be prosecuted as by law provided.

"Dated at Portland, Oregon, this ninth day of April, A. D. 1923.

"Oregon State Game Commission.

"By I. N. Fleischner,

"Chairman.

"By Geo. H. Kelly,

"Commissioner.

"By Blaine Hallock,

"Commissioner.

"By M. A. Lynch,

"Commissioner.

"By F. Roy Davis,

"Commissioner."

The defendants in this appeal contend that the plaintiff has no legal capacity to sue; that the court is without jurisdiction to enjoin the defendants from enforcing the order for the reason that the defendants are public officers; the order assailed does not injure the plaintiff in his personal property; and that the plaintiff has a plain, adequate, and complete remedy at law.

James West, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen., on the brief), for appellants.

Wm. H. Trindle and W. C. Winslow, both of Salem, for respondent.

COSHOW, J. (after stating the facts as above).

The first proposition to be determined on this appeal is the right of the plaintiff to maintain this suit. The defendants who are the appellants, contend that the plaintiff is without capacity to sue. This contention is based upon the well-established law in this state that, as against public officers, the drastic remedy of injunction can be invoked only by the state acting through its proper law officers where only public or political rights are involved. This contention is supported by Sherman v. Bellows, 24 Or. 553, 34 P. 549; State ex rel. v. Lord, 28 Or. 498, 527, 43 P. 471, 31 L. R. A. 473; State ex rel. v. Dunbar, 48 Or. 109, 85 P. 337; Friendly v....