122 Tenn. 43 | Tenn. | 1908
delivered the opinion of tbe Court.
This case involves the question of the constitutionality of chapter 519 of the session Acts of 1909. The purpose of this act is thus expressed in its caption:
“A hill to be entitled an Act creating, establishing, and providing the means and agencies for establishing and maintaining a department of the State of Tennessee to be known and styled a ‘Department of Game, Fish, and Forestry;’ providing for his compensation, giving him authority and power to appoint assistants in the several counties in the State, and providing for their compensation; providing for ex officio game wardens in the various civil districts of the various counties of the State, and relating to the preservation, propagation, and protection of game, animals, wild birds, and fish of the State of Tennessee; and providing penalties for violations of any of the provisions of this Act.”
The first general legislative movement for the preservation of game in this State is found embodied in chapter 169 of the Acts of 1903. By this act, the legislature asserted the principle that the wild game of the State belonged to the people in their collective sovereign capacity, and enacted measures for its protection by fixing the seasons for its taking, and attaching penalties for a violation of its several provisions.
By chapter 455 of the Acts of 1905, a department was created to be known and styled “Department of Game, Fish, and Forestry,” and among other provis
By chapter 489 of the Acts of 1907, the right of ownership to the fish was asserted to be in the State, and the taking of fish from its public waters was regulated; and the duty of the enforcement of this statute was devolved on the State warden and his subordinate agencies. At the same session of the legislature, an act was passed, the same being chapter 397, by which a system of forestry laws was provided and the duty of executing the same was also imposed upon the department of game, fish, and forestry. This was followed by chapter 519 of the Acts of 1909, the title to which has been hereinbefore set out.
It must be confessed, in the 'outset, that the caption to this act is somewhat involved, and that it requires an analysis of its various provisions to ascertain its exact extent. Without setting out the process of such analysis, we think, it may be simplified so as to arrive at the meaning of the legislature in adopting it by the rejection of all unnecessary verbiage. Thus treating it, we think it may be read as follows:
“A bill to be entitled An act to create and establish for the State of Tennessee a department of fish, game, and forestry, and to provide means and agencies for its maintenance and relating to the preservation, propagation, and protection of game animals, wild birds and*50 fish for the State of Tennessee, and providing penalties for violations of any of the provisions of the act.”
Thus read, the title gives notice that its purpose was to cover legislation for the benefit of the game animals, fish, and wild birds of the State, yet the act which follows is directed alone, save in particulars — to be pointed out later — to the protection, preservation, etc., of game animals and birds, leaving the fish of the State to be protected under chapter 489 of the Acts of 1907..
Conceding the above to be a proper reading of the title to this act, the question arises, Does the act violate section 17 of article 2 of the State constitution, which provides that “No bill shall become a law which embraces more than one subject, that subject to be expressed in the title”?
So far as the title itself is concerned, we are satisfied it expresses but a single subject or purpose, and that for the better accomplishment of that purpose means and agencies were to be provided for in the organization of the department therein named. All legislation germane to this single purpose or subject, under this section of the constitution, can be maintained.
Is the contention of the counsel of the complainant that the act itself contains incongruous provisions, sound or not?
Section 1 of the act, after declaring that the title to all game animals, wild birds, and fish in the State of Tennessee, not held by private ownership, was in the State, and that “no right, title, interest, or property
We understand it to be well settled in at least American jurisprudence that, without the aid of a statute, and as a part of the common law of this country, the title of game animals, birds, and fish is in the State as trustee for the benefit of its citizens. So it is that the first part of this section declaring such ownership to be in this State was unnecessary, yet the declaration there made cannot be held to affect the question in hand. But, as has been seen in the concluding paragraph, an advanced step is taken; in that it provides that in every case of catching, taking, killing, or having in possession any game animal, wild bird, or
There is, however, a still more serious objection to this statute arising upon sections 18 and 25 thereof. By section 18, it is provided that the commissioner of game, fish, and forestry, together with his subordinates, shall enforce all laws in existence or to be thereafter enacted not only for the protection, preservation, and propagation of game, etc., but for “the preservation of the forests of this State, and to prosecute all persons who violate such law or laws,” while by section 25 it is provided “that where the department of game, fish,
We think it certain that in the face of the provision of the constitution set out above, a single act could not be passed containing provisions for the protection of game animals, fish, and birds, and the preservation of the forests of the State. The legislature, in the several statutes passed at different times, recognized the necessity of classifying these as several subjects and provided for them in distinct enactments.
This distinction, thus practically recognized by the legislature, we regard as eminently sound and its effect on legislation, so far as the constitutional provision with which we are now dealing is concerned, cannot be avoided by the very ingenious suggestion of counsel for defendant that as game animals and birds live and propagate in the forests, that legislation for their preservation might be legitimately passed under the title in question.
Further, it will be seen that the title restricts legislation to game animals, wild birds, and fish of the State of Tennessee, whiie section 2, among other things, provides that “no part of the plumage, skin, or body of any bird protected by this act shall he sold or had in pos
Again, section 11 prohibits, except as authorized by section 1'6, the sale of any game “whether taken or killed in this State or not.” There is nothing in the title which gives information that game killed elsewhere than in Tennessee was to be made the subject of legislation. Game killed beyond the confines of the State, and brought into the State, can have nothing whatever to do with the game which is in a state of nature within the State.
Not only is this legislation, so far as it affects the title of the possessor to game killed out of the State, a subject beyond the title of this act, but we think it is additionally objectionable, because, if applied, where game is brought from a foreign State into this State for the possessor’s use it -would unconstitutionally interfere with the possessor’s natural and lawful control of his property, and it would be in contravention of the interstate commerce clause of the federal constitution in a case where the possessor had, in the course of his trade, acquired title in a foreign State, and brought the game within this State for use or commercial purposes. The People v. The Buffalo Fish Co., 164 N. Y., 93.
It may be said, in passing, that the case of the State v. Trewhitt, 113 Tenn., 579, did not involve the clause of the constitution with which we are now dealing, but one altogether distinct and independent of it. And this is clearly indicated by Mr. Justice Neil in Malone v. Williams, supra, who also delivered the opinion in the Trewhitt Case.
There is another objectionable feature to this act, in that it practically legislates out of office in the middle of his term the complainant, and devolved its duties and emoluments upon another. We think there is no avoiding the insistence of complainant that this legislation is in the face of the holding of this court in Malone v. Williams.
For these reasons, the decree of the chancellor, adjudging this a.ct to be void for unconstitutionality, is affirmed.